We are on section 2 and Senator Brian Ó Domhnaill was in possession.
Protection of Life During Pregnancy Bill 2013: Committee Stage (Resumed)
I do not wish to delay the House any further. I laid out my position on Second Stage. As leader of the Fianna Fáil group in the Seanad it is necessary to state that remarks made by some of my colleagues have upset me deeply. I find them graphic in the extreme. They show a distinct lack of compassion. I respect all colleagues in the Chamber. I respect that some share differing views on the Bill, which is difficult legislation. I consider myself to be pro-life. I outlined the issues I have with the Bill on Second Stage, but all Members must remember that people are listening and watching this debate. We must all show compassion. I personally believe that some of the comments that have been made, not just by some of my colleagues but by others show a distinct lack of insight into what we are dealing with. While I share a pro-life position, I want fairness, and that our women and babies are protected. While we discuss this issue, we must be able to use language that is appropriate to the debate. I wish to disassociate myself completely from some of the remarks made in the past day.
I can understand the reason that Members from the side opposite who are supporting the legislation would obviously support the comments of my colleague Senator Darragh O'Brien.
And on this side of the House.
Nobody has a monopoly of compassion, conscience or morality on these issues. I would never purport to have. The debate during the past eight to ten months in the media and by Government spokesperson has exploited tragic situations and used them in order to introduce legislation which is unnecessary. I pressed the Minister this morning on what medical procedures would be carried out. I was one of a number of members who attended the health committee hearings but the evidence presented before those hearings was very clear and unambiguous. The evidence in relation to section 9 was clear that the introduction of abortion on the grounds of suicidal intent would do nothing for a woman with suicidal intent.
We are debating section 2.
I am discussing section 2 and I am talking about the medical procedures. I have laid out my arguments on the grounds of compassion.
Section 2 is on definitions.
Clearly the medical procedures defined in section 2 have caused tremendous angst and post-abortion trauma for many women. I am also conscious of those who attended the presentations made by Women Hurt when they came to the Houses on two occasions. They came to one of our parliamentary party meetings and came to the House again at the invitation of Deputy Billy Timmins. I was one of 11 members of the parliamentary party who attended and heard those women. I know and they know who was there. I also attended a meeting with the group One Day More and the women brought in by the National Women's Council to promote and support this Bill.
We are on the section.
I know that.
A comment has been made. I would not want to offend anybody, particularly women who have had abortions-----
The Senator offended thousands of women throughout the country.
Senator Jim Walsh to continue, without interruption.
Let me say this-----
On the section.
I do not retract one iota of what I said-----
The Senator should.
-----because the people who are now complaining about the description of these "medical procedures" are happy to support them - which is why I charged the Minister this morning with the comments I made - and have them enacted in legislation in order that these practices will be legal and will happen. I cannot understand how anybody, be they in The Irish Times, Today FM or sitting around in these Houses, who will press the button to support this legislation-----
On section 2.
-----could take any exception to the description of the medical procedure that happens in abortion while they are quite happy and content to support the implementation and enactment of a Bill which will achieve just this in practice. I have spoken to many medical people who are appalled at the introduction of the Bill-----
We are on a specific section
-----and many women who have had abortions also.
Will the Senator stick to section 2?
I am sticking to section 2.
If the Senator does not stick to section 2, I will put the question now.
I am sticking to section 2.
Put the question, a Chathaoirligh.
On section 2, I have spoken about the medical procedure-----
Put the question.
-----to many medical people who are appalled that we will enact legislation to introduce these terrible deeds which will happen to babies.
That is the Senator's version of events.
The debate in recent days on this issue has left me flabbergasted, to say the least.
We are on section 2 and the Senator has already spoken for a number of minutes on it.
I am referring to section 2. Every time a Senator on the side of the House speaks with a viewpoint, we are challenged and castigated and called names by people who do not agree with the viewpoint.
On section 2.
Nobody is calling names.
This is not democracy.
I asked the Senator to stick to section 2. The Bill has been debated on Second and Committee Stages-----
And so it should be.
-----and all of these points have been made over again. On section 2, please.
On a point of order, there comes a point at which reason must operate.
I have been very reasonable.
I wish to explain what I mean by this.
I am asking Senator Ó Domhnaill to stick to the section. We must work our way through the Bill.
Senator Darragh O'Brien, whom I admire, made certain comments which, while he may have been sincere in making them, in my view were unfair on the whole to Senator Walsh-----
The Senator is not raising a point of order. I call Senator Ó Domhnaill.
-----and it is important that the Senator be allowed to make some reflection on them.
The Senator should resume his seat.
This Bill is more important than any financial or social Bill which has come before the House since I became a Senator. It has to do with life and death. It is as simple as that. Every section of the Bill and every line of it should be debated in the greatest detail possible. Senators are hoping the Seanad will not be abolished, while at the same time they are trying to abolish the opportunity for us to debate aspects of life and death.
We are on section 2.
Everyone in the House is equal and everyone in the House should be afforded the opportunity to express his or her opinion in a dignified manner.
I firmly believe the truth sometimes does hurt. If it does not lie with where one comes from it does not mean it is not the truth.
I ask the Senator to stick to section 2.
I have the greatest of respect for the Fianna Fáil leader in the Seanad and he is entitled to his opinion as I am entitled to mine, but I would never state the opinion of another Member of the House was less important.
I did not say that.
Senator Walsh's contribution-----
If the Senator does not stick to section 2, I will put the question.
On a point of order, I ask the Senators to adjourn this debate to a meeting of the Fianna Fáil Parliamentary Party.
I ask the Senator to resume his seat.
On a point of order, I ask the House to stick to the amendment.
It is not an amendment. We are on section 2.
This is not a Fianna Fáil Ard-Fheis.
I ask the Senator to resume his seat. We are on section 2.
Today's debate is with regard to the medical procedures. We asked many challenging questions of the Minister for Health on the medical procedures to be adopted in carrying out the procedures on which we are voting. We have received no answers.
Does the Senator have a question on section 2?
They will destroy a human life but they are not willing to tell us how they will do it. That is a disgrace.
Following on from the Order of Business this morning which related to this debate, as the Senator was not in the room at the time, I will ask again whether he would care to comment on what he stated yesterday-----
I ask the Senator to resume her seat.
-----and if he will retract his comments on disability implying that people who support the Bill-----
Does the Senator have a question on section 2?
The Bill has nothing to do with disability.
Respect the Chair.
I am asking for an apology and a retraction.
If the Senator does not have a question on section 2, I ask her to resume her seat.
I would like the debate to proceed and, speaking specifically on section 2, I want to refer to the definition of the unborn and a response given by the Minister, Deputy Reilly, which was not correct. The state of being unborn is defined in the Bill as ending on the complete emergence of the life from the body of the woman. Therefore, until complete emergence occurs the unborn is in principle vulnerable to a lawful termination under the Bill. What the Minister stated this morning is wrong. It is completely wrong to state that partial birth abortions are not permitted by the Bill. He called it infanticide. It is permitted by the Bill. The definition on page 7 describes it as the complete emergence of the life from the body of the woman. The Bill before us allows partial birth abortions.
It does not.
Technically speaking, it does.
On a point of order, we have gone over this so many times-----
Do I have the floor?
We need to-----
Do I have the floor?
I ask Senator Bacik to resume her seat. We have been dealing with amendments, but Senator Healy Eames is now asking a question on the section and is within her rights to do so.
The question has been answered numerous times.
This is my very first time to ask the question and I absolutely abhor Senator Bacik jumping up and down every time-----
I ask the Senator to stick to the section.
I am sticking to the question. Will the Minister correct the record? He stated the opposite to what the definition states. He is completely wrong, based on the definition in the Bill, to state that partial birth abortions are not permitted by the Bill. He called it infanticide under the law. It is not infanticide according to the Bill. I would call it infanticide, but the Bill does not.
According to the Minister of State, Deputy White, the definition of "reasonable opinion" in sections 7 to 9, inclusive, is based on a direct quote from Article 40.3.3° of the Constitution, which he stated as "having regard to the need to preserve unborn life as far as practicable", but this is not true, as the Article mentions having regard to the right to the life of the unborn and the need to preserve it as far as practicable and to defend and vindicate that right. The duty to respect by its laws the right to life of the unborn is not qualified by the words "as far as practicable". There is a very important difference.
I would particularly like the Minister to correct the issue of the definition of "unborn" in the Bill. He disputed the definition by stating that a partial birth abortion would be infanticide, but that is not the case, according to the definition in the Bill.
With regard to this and the previous debate - I made an intervention earlier - we should be allowed to make whatever point in which we genuinely believe. I get the feeling from some on the other side of the House that they do not accept our views being expressed and I am genuinely disappointed about that. Senator Darragh O'Brien is entitled to an individual view but it was not right for him to come in as leader of this group to express the view-----
That is a matter for the party.
Senator Labhrás Ó Murchú to continue, without interruption, please.
I understand why he was applauded but because of the procedures of the House, we were not given the opportunity to respond. For that reason, Senator Darragh O'Brien was wrong. Although I am being interrupted, I am speaking on a procedural point that does not seem to be acceptable.
I have an interest in speaking on section 9. Will it be reached before the guillotine is used at 10 p.m? It is the central plank of this Bill. We have spent almost seven hours debating two sections and I will be bitterly disappointed if I do not get to say a few brief words. At the rate we are going, it seems we will not get to section 9. Whatever side a Senator is on, section 9 is the kernel of the Bill and it would be unfair to many on both sides of the Bill if we do not get a fair debate on the issue of suicidal ideation.
That is entirely up to the House.
I am expressing my concern.
Members should respect each other also.
Quite frankly, I would rather be bringing home the turf but the issue is important and needs to be teased out properly. It would be a pretence of democracy to say Committee Stage must be completed by 10 p.m. as this is a life and death Bill. I am very disappointed that Senator Darragh O'Brien made those comments, as everybody must be allowed say his or her piece. Even if we do not choose that manner of communicating ourselves, I regard Senator Walsh as a Senator of integrity. This is the second time that Deputy Martin and Fianna Fáil headquarters have tried to sabotage opposition to the Bill. On this occasion it is giving a propaganda victory to people willing to vote for something that is quite unconscionable.
The Senator should speak to section 2.
They just want a chance to applaud themselves in the Chamber, which is unedifying.
On a point of order, charges are being made against me-----
May I speak to the section?
I have put across a personal view. I respect my colleagues. I ask the Senator to withdraw the comment.
We are not opening the debate. The Senator should speak to section 2.
I am not being asked to say what I said by anyone. It is my personal view. I ask Senator Mullen to withdraw that remark.
Will Senator Rónán Mullen stick to section 2?
It is regrettable that the amendment relating to a definition of "viable" has not been accepted because other proposed amendments hinge on it. I emphasise and support what Senator Healy Eames has just said about the definition of "unborn" in the Bill. It illustrates again the dark reality that underlies the legislation. I would love to think it was a lack of attention by the Government but it is a lack of care, which is much worse.
As part of his assurances earlier this morning that we should not fear the legislation, the Minister made a passing reference to section 22. I will refer to section 2 but section 22 indicates it would be an offence to intentionally destroy unborn human life. Will the Minister of State reflect very carefully on what is being presented by Senator Healy Eames? I hope this is a lack of care with regard to the language being used as part of the presentation of the Bill, as regardless of whether we like it, we must deal not with fantasy but with reality. The definition of "unborn" in the Bill allows for partial birth abortion, which we all know is an absolutely horrific practice. Can we be assured that this is a poorly written definition or an oversight on the part of the Government and that it can be corrected? I would not like any of my colleagues to support this definition as written and to reflect in ten, 15 or 20 years on the dreadful events that would have occurred as a result of that definition. It is an exceptionally serious detail that has been brought to the floor of Seanad Éireann by Senator Healy Eames and I ask the Minister to be exceptionally careful in responding and explaining why the language is open and dangerous.
I have nothing to add.
As the Minister of State has nothing to add, I will put the question.
She has nothing to add.
It is not acceptable for a Minister of State to say she has no response to the question raised by Senator Healy Eames and others. It is a fundamental danger at the centre of this Bill. At the very least the House could adjourn to allow the Minister of State to reflect on the issue. If the Minister of State cannot provide an answer, the Minister should come before us. We cannot walk away from this.
As the Senator knows quite well, it is up to the Minister of State whether to contribute.
This is my first time speaking on Committee Stage as we have not yet got to any of the amendments Sinn Féin has tabled. I listened to the Minister for Health and he was asked some of the same questions. I reject absolutely the accusations that the Minister did not answer the questions, give explanations or the correct definitions.
He answered but he was incorrect.
There are some Senators in the Chamber who do not want to accept those definitions, as is their right. It is unfair of the same Senators to accuse the Minister or a Minister of State of not giving a definition. I sat here for some of the debate and I have listened to it in my office. The Minister addressed all the questions that were asked ad nauseam and was then accused by a handful of Senators of not answering the questions. I have found this debate to be one of the most upsetting I have seen in this Chamber since I came here. It has really been upsetting for me-----
It is terrible.
-----as I have heard language used like "evil deeds", "intentional killing of babies" and graphic explanations of procedures of which we are all aware, with no regard for humanity and compassion, as previous Senators noted. I am absolutely outraged as a man and individual that this is how some people are approaching the debate. It is absolutely appalling and the quicker we proceed with taking a vote on this Bill, the better.
As the Minister of State has nothing further to offer, I am putting the question. The question is: "That section 2 stands part of the Bill."
On a point of order-----
Those in favour say "Tá".
Sorry, on a point of order-----
Those against say "Níl".
On a point of order-----
The question has been carried.
It has not been carried. You know it has not been carried.
It is not acceptable that the Minister of State does not answer the question.
I move amendment No. 9:
In page 7, lines 19 and 20, to delete ", or by another person pursuant to an arrangement entered into under section 38 of the Health Act 2004".
We are making an absolute farce of this debate by moving on and not discussing fundamental issues in the Bill. I can understand why people pushing this through do not want to face reality but I can take whatever flak comes at me from the Opposition, my own party or the media. Any of that pales into insignificance when I consider the effect this Bill will have on innocent unborn life.
This amendment seeks to restrict the facilities and institutions that can be approved for carrying out these abortions. Section 3(1) states, "The Minister may by order, where he or she thinks it appropriate for the purposes of this Act, specify any institution managed by the Executive". I am seeking the deletion of ", or by another person pursuant to an arrangement entered into under section 38 of the Health Act 2004". If the amendment were accepted, there would never be a case where, for example, a Marie Stopes clinic or other strongly pro-abortion institution would be approved under this legislation.
I ask that the Minister agree to deleting that provision.
This amendment aims to remove from the definition of "appropriate institutions" those hospitals that are not owned by the Health Service Executive, HSE. The effect of accepting this amendment would be to exclude the three maternity hospitals and the large public multidisciplinary hospitals in Dublin, which are not owned by the HSE, from the ambit of the operation of this legislation. This would have grave consequences for the safety of women in the Dublin region and beyond. I cannot, therefore, accept the amendment.
The Senator may wish to note, however, that the names of all institutions which will be permitted to lawfully carry out the medical procedure referred to in this legislation are listed in a Schedule to the Bill. Any changes to these provisions will require approval of the Houses of the Oireachtas.
I thank the Minister of State for her reply. My intention was not to exclude any of the maternity hospitals. I note that they are listed. My intention was to ensure that a Marie Stopes clinic could not be approved by any future Minister as an institution that could lawfully carry out the medical procedure. I take on board the Minister of State's point that the hospitals are listed in the Schedule. However, there is no reference to what I am seeking in the Schedule. Therefore, there is nothing in this Bill as drafted to prevent any future Minister approving other institutions in this regard, including as I mentioned earlier, a Marie Stopes clinic.
I will withdraw the amendment at this point but propose to resubmit it on Report Stage, excluding the hospitals referred to by the Minister of State. The Minister might in the meantime consider my proposal. If the intention is that clinics such as Marie Stopes will not be approved to carry out the relevant procedure, the Minister should have no difficulty accepting my amendment on Report Stage.
I thank Senator Walsh for tabling this amendment and the Minister of State for her response. The Minister of State mentioned that the permitted hospitals are listed in the Schedule. Would any proposal to add further institutions be subject to a vote in either or both Houses of the Oireachtas?
I thank the Minister of State.
I move amendment No. 10:
In page 7, between lines 27 and 28, to insert the following:
"(iv) facilities for the intensive care of newborns,".
This amendment seeks to add to the required facilities to be provided in hospitals, facilities for the intensive care of newborns. We have heard evidence to the effect that 50% of babies delivered on reaching the stage of viability will die and that the remaining 50% will be disabled and in need of intensive medical care. This is akin to the perinatal issue we discussed earlier.
This amendment relates to the provision of facilities for the intensive care of newborns in appropriate institutions under the terms of the Bill. I do not propose to accept it as it is not necessary. I am confident that if a newborn infant requires intensive care facilities nothing in this Bill will prevent that child from accessing those facilities.
Will the Minister of State confirm to the House how many of the hospitals listed have specialist intensive care units for newborns?
I do not have that information at this time but will communicate it to the Senator.
I would welcome receipt of that information prior to Report Stage.
The Minister of State mentioned that nothing in this legislation would prevent the availability of facilities. That does not mandate the availability of facilities. I would be very concerned about that issue.
That Senators would not trust a doctor to look after a newborn baby in need of intensive care is beyond me.
I think that charge was made by Senator Mullen. I made no such charge. I am concerned not that doctors will not do their job but that doctors will have the resources and facilities to do their job.
The greatest concern of many during the hearings by the health committee on the risk to life of women in pregnancy was the lack of such resources.
I agree with Senator Walsh. I completely reject the language of our not trusting doctors and not trusting women, which language has been bandied around in this debate. The purpose of legislation is to provide for people's rights in an appropriate fashion, which means one does not have to depend on having to trust every person. This amendment relates to the availability of facilities. Is the Minister of State willing to assure us that there will always be available facilities to fully vindicate the life of any child who emerges from one of these permitted procedures with the potential to live? This is the very least that could be provided for under legislation of this type.
I support the amendment. It would be useful to have the information in relation to the facilities in place at each of the hospitals listed in the Schedule available to us. I am particularly interested to know if the supports required are available at Sligo General Hospital and Letterkenny General Hospital.
There is no mention in the Bill of medical procedures to save a baby's life, such as, for example, caesarean section or induced labour which would provide the baby with an opportunity to live. The Bill deals solely with abortion and provides procedures and penalties if the laws in that regard are breached. If the Bill were focused on the protection of life, mention of protection of the baby would be referred to at each stage. If as stated the purpose of the Bill is protection of life, why then does it not include a mechanism to protect the life of the baby? I am confused by the Minister of State's swift reaction to not accept the amendment. Given the Title of the Bill, perhaps the Minister would reflect on the matter and come back with an amendment on Report Stage which could be supported.
Would the Minister of State like to respond?
I have nothing more to say on the matter.
Amendment, by leave, withdrawn.
Amendments Nos. 11 and 12 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 11:
In page 7, line 35, after "Oireachtas" to insert ", and be notified to the Joint Committee on Health,".
As these are simple amendments, I do not propose to speak too long on them. As the Minister of State will be aware, the Dáil or the Seanad can annul an order or resolution within 21 days. Generally, the only notification given of this would be to the Houses of the Oireachtas. The amendment seeks that the Joint Committee on Health and Children would also be notified. That is the logic of the two amendments.
I do not propose to accept the amendments but for good reasons. In addition, I do not believe they are necessary. Any orders or regulations made under this Bill will be laid before the Houses of the Oireachtas, which includes members of the Joint Committee on Health and Children. I agree with the Senator that it is important that this type of information is available. However, the Bill as drafted covers what the Senator seeks.
I move amendment No. 12:
In page 8, line 11, after "Oireachtas" to insert ", and be notified to the Joint Committee on Health,".
Question proposed: "That section 5 stand part of the Bill."
This section provides for the repeal of sections 58 and 59 of the Offences against the Persons Act 1861. It is worth noting - this is relevant in the context of this debate - that those sections are still included in the British jurisdiction.
Despite the fact that abortion continues to be criminalised by that pre-Independence legislation, a coach and four has been driven through this over the years by various legislative measures. This makes the point that, where abortion in the Western world is concerned, there can be prohibition in name, but there is an utter disregard for the life of the unborn in practice. This is the answer to those who seek to reassure us that the general presence of Article 40.3.3° acts as protection against bad faith on the part of some care providers, pregnancy counsellors or whoever. It does not. Just as happened with the law in Britain, an interpretation of Article 40.3.3°, such as took place in 1992, has opened the exception so wide that it is difficult to see how we will not have abortion on request. This point is worth making in passing. Those sections prohibiting abortion continue to be the law in Britain, but sadly to no real effect.
I concur with Senator Mullen. We have a good maternal health system and the outputs are exceptional. Occasionally, people will get sepsis caused by superbugs. Unfortunately, it leads to their demise and that of their babies. The neighbouring island has a liberal abortion regime, but some argue that this Bill is more liberal, in that any baby aged more than 24 weeks on the neighbouring island cannot be legally aborted, while we will permit it right up to 39 weeks. Leaving that aside, people there who incur complications in pregnancy, such as sepsis, also die.
The idea has been put abroad that this Bill is a panacea for all situations and complications in pregnancy. Sadly, that is not the case. As in all other medical situations, it is not possible to be in a position to obviate the risk to life.
At one of our hearings, much play was made of the penalty of penal servitude for life, which relates to sections 58 and 59 of the Offences Against the Person Act. Despite that claim, penal servitude is no longer allowed under our laws. It is a myth perpetrated in order to canvass a smooth transition for the Bill. For this reason, I have no intention of making it easy for the Minister of State or any Senator to pass this Bill. I disagree fundamentally with what it is about to do.
The question over this section is what value one places on life. Sections 58 and 59 of the Offences Against the Person Act 1861, which have protected the life of the unborn child for many years, are being repealed. Nothing should interfere with the 1861 Act. A fine or 14 years in prison will be the penalty for deliberate destruction, but doctors will be exempt as long as they have filed the necessary paperwork. What if that paperwork is delayed or, worse, falsified due to people being overworked? Will it be fines for doctors and specialists and prison for nurses and midwives, depending on how easily they can be replaced in their workplaces? This question has been asked by health professionals across the country, particularly in the designated hospitals outlined in the Schedule. Even if it was found that a doctor deliberately ended the life of a baby in an avoidable scenario, he or she would probably only be fined. I am unsure whether the Heath Information and Quality Authority, HIQA, would follow through and be keen to lose a doctor or specialist for 14 years, given the financial constraints within the health sector as well as the pressures stemming from the moratorium on recruitment.
What if a court case is taken years later when a mother who lost her baby decides to sue because she believes the course of action decided on by the doctor was not the best one? The baby could have lived had a different course been taken.
Has a financial analysis of the legislation been conducted as regards its cost to the State? A financial breakdown is not apparent.
The removal of the protection for unborn babies provided for by sections 58 and 59 of the 1861 Act is a step too far. I cannot leave this section of the Bill unchallenged. I would appreciate it if the Minister of State could reply to the points raised - for example, the taxpayer's exposure to cases. Inevitably, mothers will take cases against the State in years to come. Has the taxpayer's exposure been factored into the equation?
I empathise with the concerns of Senator Ó Domhnaill. Regrettably, I must say that the removal of sections 58 and 59 of the 1861 Act will not bring about a fundamental change. Rather, the passing of the Bill will provide for a different type of culture. This is the matter that we will reflect upon with regret in years to come. After this legislation is passed, the sections are repealed and we move onto another issue, everyone inside and outside the House will need to reflect on why 4,000 to 5,000 Irish women go to Britain for abortions every year, why some others have abortions in Ireland and how we can deal with this problem from financial and societal perspectives. This challenge will face us all.
Without being overly repetitive, this is possibly the only so-called health care provision that will be introduced on a limited basis. That we as legislators are doing this is our public concession to the fact that we are doing something that we know to be wrong. We do not introduce limited heart surgery or hip replacement or limited medication or vaccination programmes. We only introduce limits on a matter that we know to be fundamentally wrong. That we all deem this to be limited legislation shows us what we actually think of the process of abortion as a solution to problems.
The Minister provided his reasons in the Lower House. The health committee debated why these sections should be repealed. Some, such as my friends across the way, believe that a repeal will lessen the protection of the unborn, but the legislation as a whole and the culture change that it will bring about will be the major problems facing us. As such, we must think long and hard about how to respond to the legislation.
While there is a profound division in the House on the legislation and what is behind it, there must be a unity of purpose in the future. I hate to use the phrase "going forward". We must determine what additional supports can be provided to people who view abortion as their only way forward. Tragically, history has shown that it is not a way forward.
Within the legal profession, there is a view that sections 58 and 59 of the 1861 Act may be unconstitutional - the 1861 Act was introduced prior to the Constitution - in light of the 1983 constitutional amendment. Were this found to be the case, and if this Bill were not in existence to replace sections 58 and 59, we would have no legislation at all to make terminations illegal. This is a further reason for the urgency of the Bill's passage.
I have nothing to add.
In response to the last point, when it comes to worrying about whether legislation is unconstitutional, I believe it would enjoy the presumption of constitutionality. That is a bridge I would be happy to pass when I would reach it.
This section provides that all abortions will be paid for from taxpayers' money. There is an issue of conscience here, particularly for pro-life people. They will be appalled that the hard earned money they submit to the State in tax would be used for section 9 abortions, in particular. I have concerns about that. Other jurisdictions do not do that. They recognise that there is an issue of conscience here. People would not have a difficulty in respect of sections 7 and 8 because they refer to medical emergencies like any other such emergencies. However, this is not a situation where, according to medical experts, an abortion has any evidence-based grounding.
This section states: "The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas." I do not know if the Minister of State was following the debate this morning but I raised the issue of foetal pain, which is considerable. I decided not to press the amendment to give the Minister a chance to examine the evidence over the weekend and to give us an opportunity to reflect as well. However, one of the requests I made was that an anaesthetist would be present to administer pain relief to the unborn foetus at the point of ending his or her life. I would consider that a valid expense under this section. I ask the Minister to consider that. I do not know any Member of this House who would wish for an unborn baby to suffer pain when their life is being ended.
I wish to make another point. In other countries this is a huge industry. I do not have the figures to hand, but the Planned Parenthood Federation of America made approximately $97 million last year from abortions. An issue has been raised with me and perhaps the Minister of State can allay my fears. The Minister has said we cannot impose term limits because of the X case. I have huge difficulty with that. In the course of the health committee hearings I asked the former Supreme Court Judge, Catherine McGuinness, if she thought it was right that we do not have term limits. She said the Government should give it a go. It is on the record. When I was speaking to her privately afterwards she said she did not know any Supreme Court judge who would strike it down. However, this Bill does not provide for term limits. Every other country in the world has term limits. It has been put to me that Ireland will now become an attractive place for people from around the world to come to for late term abortions.
We are on section 6.
I am speaking to section 6. It is about the expense on the taxpayer.
Will our taxpayers be funding abortions for people coming from other jurisdictions who qualify for late-term abortions because they find they are suicidal due to a personal circumstance but it is past the term at which they could get an abortion in their home countries? That is a very legitimate question and I look forward to the reply.
I agree with the sentiments expressed about section 6 and the expenses. I had intended asking the same question that Senator Healy Eames just asked. There are a few issues to consider. One is obviously the cost. Generally, although not always, when a Bill is brought before the House there is a breakdown of the additional cost to the Exchequer. In this case there is no breakdown of the cost the Bill will impose on the Exchequer. Obviously, it will depend on the number of abortions that take place on the ground of suicide, and nobody can predict that. Has the Department carried out any statistical or evidence-based prediction work in respect of the number of abortions that could occur and the cost associated with this?
If individual citizens of this country have a conscientious objection to abortion, particularly if it is a conscientious objection to abortion on the suicide ground, and they are paying taxes in this country to fund essential services, they would also have a huge conscientious objection to that tax being used to fund abortions in public hospitals. I am anxious to hear the Minister of State's response to that issue.
The other issue is whether the moneys that will be used will be competing with hip replacements, knee operations, disability procedures, cancer treatments and so forth. Will there be competing demands? In each HSE region, including Donegal, the HSE manager is given a budget and they must live within that budget. What will change in this case? Will a dedicated budget be made available by the Department of Public Expenditure and Reform just to fund abortions alone or will it come out of the budgets that are given to the various HSE managers?
There is the issue of abortion tourism, for want of a better word, which has been raised with many Members of the Oireachtas. A woman who is seeking a late term abortion and whose own jurisdiction, be it the UK, Canada, France or Italy, has term limits, would be able to avail of a late term abortion in the Republic of Ireland due to there being no term limit on abortions in this country. Who will pay for that if it happens, or will the Government say it is only available to women who have Irish passports? Can that be clarified?
It is more relevant to section 9, but it probably has some relevance to this section also. To deny that suicide is not a genuine risk to somebody's health and life, as some speakers appear to do, is to deny the facts of life. I have been a psychiatric nurse for 28 years. I have worked with groups in the community and I am rapporteur to the health committee on suicide prevention. I am not an expert, of course, but I have some knowledge about this. I have seen the effects of suicide, as has every Member of the House. We have discussed it many times in this Chamber, yet when it suits an argument the reality of it is denied. That must be challenged.
This Bill is about when there is a risk to the life of the mother. It is not correct to talk about medical tourism on this issue. It will not arise. If people come here from abroad, they are under their own country's jurisdiction and they must go back and deal with the medical advice there-----
I am seeking clarification on that point.
It is quite clear. The Bill is specifically dealing with a risk to the life of the mother.
If people come here from abroad then they will have to go back to their own jurisdiction to have the matter dealt with in their own medical system. People have raised the possibility that we will suddenly have an influx of people but that is exaggeration.
On a point of order, I sought clarification from the Minister on the matter.
That is not a point of order and I ask the Senator to resume his seat.
I want it read into the record of the House.
The Minister of State shall respond to the Senator.
With this issue we have lost sight of the Bill which deals with what happens when there is a risk to the life of the mother. That is the only issue that is being dealt with.
Perhaps Senator Gilroy misheard us or we have misrepresented our views. I do no think that anybody in the House has, in any way, disputed that mental health is an issue-----
And it is.
-----and that suicide is an issue. Many of us differ on what is an appropriate-----
-----or evidence-based treatment but that is for section 9. I was going to ask the same question that Senators Ó Domhnaill and Healy Eames asked but Senator Colm Burke has answered it. Perhaps the Minister of State will be able to clarify, as indicated by Senator Colm Burke, that this piece legislation and its uses will only apply to Irish mothers.
I have a question on expenses incurred. Section expenses is a general heading in every legislation. However, a Munster-based consultant made an interesting observation about expenses at the hearings by reminding us that there would be a cost for training Irish nurses, doctors and hospital staff. It was stated at the hearings that staff would have to be trained to carry out these procedures. Can the Minister of State tell me the training costs for the staff who have never previously participated in abortions and, under this law, will be obliged to provide abortions in the distinct hospitals? One of the consultants at the hearings made the observation that training would have to be provided in the hospitals. Is it the Department or the hospitals who will pay the training costs?
We do that for everything. We do it for cardiologists, ophthalmologists, etc.
Senator Paul Bradford to continue, without interruption, please.
Will the hospital pay the training costs for its staff? Will the Department take on those costs as part of its central departmental budget heading?
It will be part and parcel of the general service plan that is put together every year.
Is it paid for by the hospital or the Department?
The general service plan is paid for by the HSE, as is done for all other training.
The observation was made by a very respected consultant who attended the hearings and asked us to reflect on the fact-----
What is the Senator's question? The only people that-----
The Minister of State can respond later to all of the Senators.
The consultant asked us to reflect on the fact that the training costs would have to be taken into account.
That matter is quite clear. The Minister for Health has said here that we are legislating for what is already happening. Therefore, the many doctors, nurses, midwives who have had to deal with terminations for women whose lives were at risk have had the training. They will continue to have the appropriate training for that need. To suggest somehow that this is a whole new thing that is happening is scare mongering and Senator Ó Domhnaill indulged in that by suggesting that there would be "tourism" in this regard. Please excuse my using that very distasteful expression.
I wish to add to Senator Colm Burke's comments on women. It is not just when a woman's life is at risk, but a real and substantial risk. Senator Ó Domhnaill showed a lack of respect with his idea that any pregnant woman whose life is in danger would think of stepping on an aeroplane because, somehow or other, life here is better.
I asked a question and ask the Senator not to twist my words.
I am twisting nothing.
Yes, she is.
The Senator has shown a lack of respect for women whose lives might genuinely be at a real or substantial risk. That is what we are legislating for.
What about the life of the unborn?
We are not legislating for anything else.
What about the unborn?
The Senator knows what we are legislating for.
Through the Chair, please.
Senator Ó Domhnaill's idea and use of the expression is a scare mongering tactic. It has no basis in reality, regarding the legislation, unless he did not listen to the Minister when he was here.
First, I am not aware, and I have read the Bill a number of times, that the word "abortion" is mentioned even once. When talking about the language used in the Chamber we ought to take that into account.
Second, I concur with Senator O'Keeffe. My understanding of the legislation is that it formalises the law as it stands and gives clarity on the law as it already stands. I ask the Minister of State to answer one quick question. Given that we are simply enshrining the law as it currently stands, is she aware of abortion tourism to Ireland?
Third, there has been talk of abortion tourism. That is a repulsive idea by Senator Ó Domhnaill.
Through the Chair, please, Senator.
Does the Senator have a question for the Minister of State on section 6?
The idea is repulsive and scare mongering. Is Senator Ó Domhnaill aware that at least 4,000 Irish women leave this country every year to go to another jurisdiction for a termination of pregnancy?
That does not make it right.
Senator Ó Domhnaill's question was not hypothetical but about the law and it is important to get an answer.
I shall follow on from what Senator Colm Burke has said. His interpretation of the law is that a pregnant woman, who is a visitor to this country, presents herself at a hospital requiring an abortion because she has suicidal intent, should be returned to her own jurisdiction. It is important to get that point clarified.
A number of different and interesting issues have arisen from the debate on this section, perhaps more than I had expected. It is interesting the difference of analysis and prediction.
Senator Bradford confronted us with what one of the medical consultants and obstetrician said at the hearings. I did not hear his comments being contradicted by Government, at any point, to provide further resources for further training. That person did not appear to think that it was going to be business as usual. We have been reassured by Senator O'Keeffe that it will be business as usual and that all we are doing is legislating for what is happening already.
It seems, given what Dr. Sam Coulter-Smith said about the significant ethical dilemmas that would confront some of his colleagues when asked to end the lives of children of healthy pregnancies, that at the very least a budget for counselling will have to be provided for some of the medical staff who may be implicated in all of this.
Senator Gilroy reflected on his experience of working as a psychiatric nurse. I can tell him that everybody who is opposed to the Bill that I have spoken to is fully apprised of the seriousness of the suicidal ideation in our society. They are fully apprised of the fact that when a person is suicidal there is a risk to his or her life. The question has always been as follows. Can it ever be legitimate for any medical professional, or anybody else, to say that a threat of suicide amounts to a risk to life of a kind that would allow the will of one person to determine whether another person lives or dies? That is an entirely separate question.
The Senator has strayed from discussing expenses.
I would be grateful if the Minister of State would rehearse for us what I believe has been supplied to some extent and given that we have been reassured that it is going to be just business as usual. What can she tell us about the involvement of psychiatry in the ending of pregnancies either in Britain or elsewhere but where the mother and child are Irish? What has the HSE's role been in such a case? How often has it happened? Has psychiatry or the State played a role in procuring abortions either here or elsewhere? How often has it happened? Did it happen on foot of cases that were deemed to meet the X case test? Was it a case of the State acting in loco parentis and choosing to exercise, as it were, a right to travel? I would be grateful if she would put on the record here what has happened, to date and how often, since the Supreme Court decision on the X case in 1992.
I call Senator Healy Eames. She has already spoken on the section.
I have. I want answers and that is the purpose of the debate. I am not standing here to scaremonger. I am standing here to get answers to questions.
The Senator will have to stop talking in order to get an answer.
I will let the Minister of State answer, if she would.
I am serious. If the Senator wants an answer, she must stop talking.
Does Senator Healy Eames have a question for the Minister of State?
I shall wait to hear her answer. I have already asked the question.
Is the Senator going to ask the same question?
I notice the technique-----
What is the Senator's question for the Minister of State, if she has not asked it already?
I have asked a number of questions and I am waiting for an answer. I heard Senator Colm Burke introduce an answer, saying that it would not happen if someone from another jurisdiction came to Ireland as she would be sent back to her jurisdiction. There are loads of examples where that might not be right or humane. What about a foreign student studying in Ireland? A pregnancy is only nine months. What about a person on a longstay holiday? What about someone without habitual residency? They qualify for nothing. Are we saying that their mental health is not as important? Please answer the questions.
I want to comment on-----
Gosh, we are off again.
Senator Gilroy has already spoken on this issue.
I have, very briefly. I want to speak again with the indulgence of the Cathaoirleach. Senator Mullen has eloquently and articulately given a synopsis of my previous contribution. I listened with great care to his eloquence and knowledge of the area. He referred to the threat of suicide. The Bill talks not about the threat of suicide but about the risk of suicide. Any misunderstanding between the two terms fundamentally misunderstands the entire nature of section 9.
I will be brief because most of the debate has been on expenses. It has wandered to other areas and no amendments on section 6 concern expenses. If we were all to make decisions about how our taxes were spent, I am not sure we would have what we now see as a cohesive society. That is an issue for the Government. If I was to decide, as an individual, how my taxes were spent, people would not like the choices. That is everyone's position.
The Bill deals with women whose lives are at risk. They are going to die if they do not have the procedure. If, Senator Healy Eames, someone who is here on holiday, who is a foreign national or who does not have residency status arrives at a hospital in that condition, each and every one of our doctors would take in that person and treat her in the same way as if she was as fully fledged Irish citizen. The only thing I can do is have ultimate trust in it.
I spend most of my time in this Chamber talking about suicide. Some 500 people die by suicide every year and I think it is an underestimate. Is the Senator telling me that a woman, just because she is pregnant, cannot be suicidal? I do not believe it.
No one is saying that.
No one is saying it. The Minister of State should not introduce scaremongering.
It has happened. I was not going to comment but, listening to the debate, I must ask what experiences Senators have had to make them distrust women in the way they do.
That is a shameful comment. The Minister of State is representing all of the people.
Down through the centuries, if women were to do what Senators say they do, we would not be here.
If the Minister of State cared about women-----
The Minister of State is responding on section 6.
I am sorry I was not born a woman. Should I be penalised because I was not born a woman?
There are some 100,000 women-----
The Minister of State on section 6.
I am sorry I was not born a woman. Is that the accusation the Minister of State is throwing at me?
The Senator may be right.
Doctors and nurses are trained in the same way as they have always been trained. We are legislating for what is already in place. We cannot put an absolute price on life and I am amazed to hear it here.
This is the third time Senator Healy Eames has spoken on this issue.
I am grateful for the answer the Minister of State has given. I agree with her that the mental health of a foreign student should count just as much as a citizen and the same goes for someone on holiday. The core of the issue is that, because there are no time limits and because there are time limits in other countries, the country will be attractive to women in difficulty needing late term abortions in other countries. The Minister of State is correct that they will be treated here. We are now going back to the point made by Senator Ó Domhnaill that we will have a new form of tourism in Ireland.
Amendments Nos. 13, 14, 24, 31 and 32 are related and will be discussed together. Amendment No. 14 is an alternative to amendment No. 13 and amendment No. 32 is an alternative to amendment No. 31.
I move amendment No. 13:
In page 8, line 29, to delete “is ended” and substitute “may be lost”.
There are two interrelated problems with the legislation. One has been referred to by Senator Mary Ann O'Brien, among others, and concerns the lack of term limits. At a minimum evil, on foot of avoidable circumstances in situations provided for in section 9, a child at the cusp of viability, who is at viability or is later brought into the world in circumstances where, at best, the child may be extremely sick, the Minister said such children might have to be taken into care. We all accept that such an unfortunate outcome for a child is perfectly understandable and the process leading to it is perfectly legitimate, where doctors intervene to deal with the physical illness of the child's mother, and do so on the back of an assessment that the threat of suicide amounts to a risk of suicide, but it is unconscionable that should be allowed to happen to a child under the circumstances in section 9. I point out to Senator Gilroy that I talked about how a threat amounts to a risk to life but he can check the record on that point. The lack of term limits is one issue.
A related issue is whether there is a lack of protection for the child at cusp of viability or post-viability in the womb with regard to the procedures permitted. The Minister sought to reassure us when he said that if a viable baby is born, everything will be done to sustain the life of that baby. No one suggests at this point, although I have questions about how the eighth amendment might be interpreted in future cases, that care will not be taken once a child is alive having been delivered or brought out on foot of a procedure under section 9. However, there is a question about what ought to be done in terms of the child, what procedures the doctor is required to execute and whether the doctor is obliged to ensure a child at viability is protected in the course of the carrying out of a section 9 procedure or whether the obligation to preserve the life of the child arises only where the child emerges alive. That is at the core of the problem of the duty to the child prior to the procedure where the child is viable or near viability. It arises in two ways, one because the legislation does not confer a specific duty to protect the child in that situation and second because of the use of language and the word 'ended' in various sections of the Bill that I seek to amend.
I am speaking to amendments Nos. 13, 24-----
Amendments Nos. 13, 24, 31 and 32 are being discussed.
As amendment No. 32 is in the name of Senator Healy Eames, I will speak to amendments Nos. 13, 24 and 31.
Amendment No. 13 seeks to delete the words "is ended" and substitute "may be lost" from section 7 such that it would refer to the lawfulness of procedures in the course of which, or as a result of which, an unborn human life may be lost. Amendment No. 24 proposes a similar change in the context of the emergency section 8 procedures, and amendment No. 31 refers to it in the context of what I might describe as the infamous section 9 procedures.
The word "ended" connotes a deliberate act whereby "lost" suggests the death of the child is a side-effect of the intended aim of the medical procedure. All along we have been reassured that what is being legalised are procedures which are not directed to the destruction of the unborn but to the saving of the life of the mother. I suggest the word "lost" provides greater legal reassurance to those practitioners not involved in the deliberate destruction of the unborn, namely practitioners operating according to sections 7 and 8.
In response to critics of the Protection of Life during Pregnancy Bill 2013 who have pointed out the Bill permits the directed intentional destruction of an unborn child even after the point of viability, it has been repeatedly claimed that no viable unborn child will be lawfully aborted pursuant to sections 7, 8 or 9, but instead any such child shall be delivered early with every effort made thereafter to sustain its life after delivery. It is relevant to critically evaluate this response in light of the actual wording of the Bill. Most importantly, the express definition of the medical procedure which sections 7 to 9, inclusive, provide shall be lawful leaves no doubt the Bill only makes lawful procedures which are fatal for the unborn. The wording used at the start of each of these sections is utterly unambiguous and speaks about where life is ended. Section 7(1) states: "It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended...". Thus it is only a medical procedure during, or as a result of, which unborn life is ended that is made lawful by the Bill.
It is necessary the plain legal consequences of this definition are understood. The Bill does not make lawful any form of termination of pregnancy which does not end an unborn human life. It does not confer any lawfulness on a procedure which disables or injures severely; it only confirms lawfulness on those procedures which actually end in the death of the unborn. It follows the Bill neither requires nor renders lawful the premature delivery of a potentially viable unborn child as an alternative to the medical procedure defined and made lawful by the Bill, a procedure in the course of which, or as result of which, unborn life is ended. There is no duty on the doctor to preserve life at that point or no protection from civil or criminal liability for the doctor who preserves life.
If the Government truly believed its own claim that when an unborn child is viable terminations of pregnancy under the Bill should not take the form of a procedure which ends the life of the unborn, which is the only procedure defined and made lawful by the Bill, but should take some other form such as premature delivery, one would expect the Government to be open to an amendment adding an express provision for confirmation that the Bill does not permit the lawful ending of the life of an unborn child which is reasonably deemed to be viable or potentially viable. It is very difficult to understand why the Government would oppose such an amendment if it is truly intended the Bill should operate in this way.
One would also expect to find provision in the Bill addressing the civil liability of a doctor who delivers a viable unborn child prematurely thereby causing injury to the child. As noted above, such procedure is neither mentioned nor made lawful by the Bill because it is not a procedure which ends an unborn human life and therefore falls outside the definition of the medical procedure made lawful by sections 7 to 9, inclusive.
It is no answer to the above criticisms to include an express reference in the Bill to a duty to make all efforts to preserve the life of a child after delivery. We are not speaking about after delivery; we are speaking about what happens before and during delivery. We are speaking about the procedure and not the post-emergent situation. There is no requirement that any such delivery must occur in the first place because there is no duty imposed on a doctor by the Bill. I can hardly believe I am reading these words but they are true. There is no requirement that any such delivery must occur in the first place, because no duty is imposed on a doctor by the Bill, either implicitly or expressly, not to end viable unborn human life. On the contrary, an obstetrician who chooses to terminate a pregnancy by a premature delivery of the unborn rather than by a procedure which ends the life of the unborn will not enjoy the protection of the Bill. Quite perversely, the obstetrician might be better off legally speaking from the point of view of his or her self-interest if the child died during or as a result of the premature delivery than if the child survived. If the child's life is ended in the course of or as a result of the premature delivery, the delivery would fall under the definition of medical procedure in the Bill and would therefore be lawful, but if the child survives and suffers injury a result of the premature delivery the lawfulness of the procedure, at least in terms of civil liability, is left wholly undetermined by the Bill.
On Report Stage in the Dáil the Minister stated the purpose of the legislation is not to regulate procedures which do not constitute abortion or to dictate the practice of obstetrics, and to this end, using the word "is" as opposed to "may" and the phrase "may be ended" as opposed to "is ended" would lead to the inclusion of other procedures, for example amniocentesis, which are not intended to be included, and that due to the unpredictability and complexity of these rare medical cases it was not desirable to provide legislation for a specific referral path. Such an answer causes concern. Only a contorted reading of the proposed amendment could view it as including procedures such as amniocentesis, since subsequent subsections clearly establish the only category of medical procedures contemplated by the Bill are those which respond to a real and substantial risk of loss of maternal life as a necessary means of averting such a risk and which take account of the need to preserve unborn human life as far as practicable. Thus only maternal life-saving medical procedures which threaten the survival of the unborn are contemplated.
Further, as the Bill stands, with the inclusion of "is" instead of "may be", it is difficult to see the purpose of the phrase "has regard to the need to preserve unborn human life as far as practicable". This phrase only comes in to protect people who end up ending the life. This is the wording of the Bill. Such a phrase is surely redundant where legal clarity is being offered to only those procedures which inevitably end the life of the unborn. It is not sufficient to suggest, as some have done, there is no need for these amendments since subsequent subsections enshrine the idea of a need to preserve unborn human life as far as practicable. The argument these people make seems to be that the incorporation of the "duty" ensures that the fact that the Bill contemplates only procedures ending the life of the unborn does not entail lesser protection for procedures which do not end unborn life.
Yet, as previously stated, that duty to preserve unborn human life as far as practicable is rendered redundant by the exclusion from the Bill's protection of procedures which do not end the life of the unborn. We are left with a Bill that clarifies and protects only those procedures resulting in the death of the unborn. Any other type of procedure is not protected and is not clarified, as I have said. If my amendment is not accepted, it seems clear that the Bill will have the unintended side effect - I hope it is unintended and that it will be changed - of incentivising for medical practitioners foetal destruction over foetus-saving procedures. That is the most logical deduction from the legal fact that the Bill only protects and clarifies the former category of the medical procedure. I look forward to hearing the Minister's response.
I will be brief, because Senator Mullen has covered much of what I wanted to say. I too have tabled this amendment, changing "is ended" to "may be ended" in the hope that it may provide some change to the intent of the Bill. I have a legal opinion which states that, most importantly of all, the expressed definition of "medical procedure" provided for by sections 7 to 9, inclusive, leaves no doubt that the Bill only makes lawful procedures that are fatal for the unborn. The wording used at the start of each of these sections is utterly unambiguous in this regard: "It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended." The Bill does not make lawful any form of termination of pregnancy which does not end an unborn life. One would expect the Minister to be open to some amendment in this area in order that it is completely and totally unambiguous and does not give rise to a situation that occurs in many other jurisdictions.
People are being selective in picking up some of the points I am making. I am talking about other jurisdictions, but this is a first step and the first time we are introducing and legalising abortion in our legislation. Being aware of judicial activism, we need to ensure that the wording in these sections, as well as some later sections, is as tight as possible. Let me mention the situation in other countries in which a baby is born and technically the obstetrician may find himself or herself liable if a baby on the cusp of viability pulls through. All the medical evidence given at the committee hearings was that only half of those babies born after a gestation period of 23 to 26 weeks will survive, and half of these will suffer cerebral palsy or some other brain injury and will be disabled. The issue facing the obstetrician is that if the baby dies, he or she is totally covered by the legislation, but if the baby survives there is nothing in the Bill specifically that will give the obstetrician confidence that he or she is covered in that situation. Some of the medical profession have sought legal advice independently on that issue. I am told that what happens in other countries as a result of the issue of liability is that obstetricians are under pressure from the authorities not to make strenuous efforts to save the life of the baby. I have been told by medical practitioners that in other countries, when the baby is in the process of being born, potassium chloride is injected into the heart and that terminates the life of the baby. Some have said that this lacuna and the fact there is no limit on the term of gestation in the Bill will make the situation worse than in England, where there is a cut-off point of 24 weeks for abortion. Therefore, the likelihood of such a situation occurring in England is lower than it is here.
I ask the Minister to give serious consideration to the amendment and, if he has a different viewpoint from the legal advice on medical liability that medical practitioners have received, I ask him to state precisely the position on liability should the baby survive, to assure medical practitioners with regard to their exposure to medical liability proceedings.
My amendments are to sections 7 and 8. On the whole, I welcome these sections, which confirm current practice. The sections are useful in that they also clarify issues that some people did not know were there. In my amendment, I wish to substitute the word "may be" for the word "is". Section 7, which deals with the risk of loss of life from physical illness, states: "It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended". Amendment No. 14 seeks to change "is ended" to "may be ended". I understand it is not intentional that the baby's life would be ended.
Is the Senator speaking to amendment No. 14?
Yes, I am.
I am sorry, Senator; I see it is grouped with amendment No. 13.
The word "is" makes it dangerous. Up to now the practice has been that should the mother's life need to be saved, that is the goal, but it may mean the unintentional taking of the baby's life. I understand that everybody is fine with that. What worries me about the wording in the section is that it makes clear that an unborn human life is ended. This is actually worse than the current practice. Doctors practise, at the moment, with a duty of care to mother and child. For that reason, we should leave it at "may be". The word "is" makes it dangerous for the unborn, but the words "may be" gives hope that the life of the unborn might be saved. This does not take away from the overall thrust of section 7. There is every reason a doctor will intervene to save the life of the mother, because there is real evidence of a physical illness. Why not just leave the words "may be"? This puts the duty of care in the doctor's hands, and he or she can also save the baby's life, which is the current practice.
The aim of this amendment is to allow medical practitioners to intervene to save a mother's life in a manner that allows them to attempt to save the baby's life also. The current wording, with "is" instead of "may be", presumes that the baby's life will be ended. That is dangerous, and in fact does not render lawful the saving of the baby's life. There is no reason for the current wording to remain other than to pave the way for situations in which no attempts will be made to save the baby's life. I ask the Minister to reflect on this amendment, given that the intention is to clarify existing practice.
I will now address my second amendment, amendment No. 32 in this grouping. Amendment No. 32 seeks to amend section 9, which deals with the risk of loss of life from suicide. Section 9(1) states: "It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended". Again, in this amendment I wish to delete the word "is" and substitute "may be", because it gives a chance to the baby. In both of these sections we are stating that the mother's life is the primary reason for the intervention, but with these amendments, I am requesting that we do not use the phrase "is ended", as under this wording the baby's life will definitely be taken, but the words "may be" give a chance for the baby to be also saved.
I add that I am concerned about another inference that may be drawn from the Minister's decision not to include the words "may be" as we have proposed. Senators Mullen and Walsh referred to this. I have tabled another amendment that makes this point. If the word "is" is retained in the Bill, a doctor who saves a baby may end up being liable if that baby ends up with an injury. That might mean there is less of a reason for the doctor to want to save the baby. This is a very serious issue and we need to tease it out here. Much of what I am saying might be uncomfortable. We need to do it here in order that doctors, mothers and babies do not have to face these situations somewhere else. We are framing the law now. I look forward to hearing the Minister's answers.
It is often claimed that no Government has done anything on this issue for 21 years. In fact, the Minister did not have to look very far when he was drawing up the text of this section. Much of the same language was used in the legislation drawn up by Fianna Fáil in advance of the 2002 referendum. The same language was used in respect of saving the woman's life, for example. The difference is that the Government has added on a doctor. If the 2002 referendum had been passed, there would have been a requirement for just one medical practitioner. I mention this to highlight some of the exaggerations we are hearing during this debate. I think everybody on this side of the House supported the referendum we proposed in 2002. The point I am making does not relate to section 9, obviously. That is separate. The provisions of section 9 were not included in the 2002 referendum.
That is a key point.
It may be, but we are talking about section 7 which relates to the risk-----
We are on specific amendments.
We are talking about amendments to section 7. I am pointing out-----
We are on amendments to sections 7 to 9, incusive.
The amendments in question are Nos. 13, 14, 24, 31 and 32.
I am talking about section 7.
We are not on the section.
There are amendments to section 7 before us. I am making the point that the amendments to sections 7 and 8, at least, are unnecessary. The provisions of those sections were considered okay when they were included in the 2002 legislation. I do not think the debate has moved on to the extent that those sections need to be amended to provide for even stricter laws, as people are suggesting. I just do not understand it.
Senator Mullen has already spoken at length on these amendments.
Can I ask that the Minister be allowed to respond at this point?
I have a comment I would like to make.
Some of those who are indicating have already contributed.
I asked for the floor when Senator Mullen was last speaking. I wonder how he managed to get ahead of me on the list. I would like to respond to some of the things that have been said about these amendments. Like other Senators, I attended all six days of hearings. I listened to the testimonies of the medical professionals, particularly the obstetricians. Some charges have been made this afternoon. I think we need to be careful in our language. The medical professionals clearly said they work to ensure foetal maturity and foetal viability. That is what they are about. Article 40.3.3° is a clear constitutional provision that protects unborn life. It is clear, therefore, that one cannot intentionally end that life if it is possible to pursue another option while vindicating the woman's right to life. I would like to clear up one of the many claims that have been made. A great deal has been said about the term limits in the UK. This is relevant in the overall context of the use of facts in this debate. It is correct to say that section 1(1)(a) of the UK Abortion Act 1967 provides for a 24-week limit. One should also refer to section 1(1)(c) of that Act, however, because it does not impose a time limit on abortion in Britain where "the continuance of the pregnancy would involve risk to the life of the pregnant woman". That is a fact.
Does Senator Mullen have a further question for the Minister?
I have a further comment to make.
Let us hear the Minister.
I am happy to wait for the Minister.
If the Senator has a question for the Minister-----
I do not have a question for the Minister.
-----he should ask it now, rather than coming back in again.
I have a further comment to make, but I am happy to yield to the Minister for now.
The Senator should make it now and let the Minister respond to it.
I have only indicated my desire to speak. I am not gagging to speak before the Minister. If the Minister wants to speak, I will wait.
I am quite happy for the Senator to make his comment.
I am happy to do so. I will deal with one or two of the issues that have been raised. Senator van Turnhout was absolutely right when she mentioned one of the circumstances in which no time limit is provided for in British law. Of course the other circumstance in which there is no limit is where there is any kind of disability. Under British law, the threat to life is not deemed to include any mental health grounds, as far as I am aware. The term limit that applies to abortions that are carried out on the basis of the mental health element is 24 weeks. I would like to raise two issues in response to what Senator Byrne has said.
The Minister will deal with those issues. Does the Senator have any question for the Minister?
I do not. I have a comment to make. I said I would wait until the Minister had answered.
The amendments we are discussing - Nos. 13, 14, 24, 31 and 32 - would change the wording of sections 7 to 9, inclusive, of the Bill. The Bill, as drafted, reflects the policy requirement to implement the judgment in the case of A, B and C v. Ireland, which relates to accessible and effective procedures in relation to abortion only. The proposed change would not be desirable as it would bring a greater number of medical procedures under the Bill. The Senator read them out. One such procedure would be amniocentesis. Another such procedure could be the administration of a general anaesthetic.
The words "may be" would cause major problems. Senator Walsh has his legal advice. The Attorney General has taken the best advice available and given it to the Government. She has advised that the word "is" should not be replaced by the words "may be". I hope that clarifies things. I appreciate from what Senator Mullen has said that it will not be acceptable to him. I have to take the legal advice the Government gets from the highest legal officer in the land.
I would like to respond to Senator Walsh's contention regarding the exposure of doctors. It is very simple. If the doctor is acting within the law, he or she is protected under the law. If the doctor is acting outside the law, he or she will be subject to the law.
I would like to comment on what Senator Mullen said. I say this without rancour. The contention that a doctor would not do everything in his or her power to save a life is not really worthy of a response. It casts a slur on the doctors of this country who provide such sterling service and who come from a tradition of centuries - not just generations - of care and compassion for their patients. It is just not tenable. In fact, it is quite shocking.
I regret that I will not be able to accept the amendments proposing the replacement of the word "is" with the words "may be". I considered those words myself. I put the very points that have been made this afternoon to the Attorney General. She made it very clear that the use of the words "may be" would be most unwise legally, because it would have unintended consequences in the areas-----
Is the Minister addressing my amendments also?
It relates to the same thing. Is it not the case that the Senator is also proposing the replacement of the word "is" with the words "may be"?
Yes. Why is such a change not acceptable?
I have just explained it.
I thank the Minister for his response, particularly with regard to the proposal to replace the word "is" with the words "may be". His comments are not in accordance with the legal advice I have read. He said he had received advice from the Attorney General. I asked him this morning whether it would be possible for that advice to be made available in writing. I heard what the Minister said about medical operatives who act within the law being covered and those who act outside the law not being covered. I fully respect that. I think it is a good principle. The point I was canvassing is that the wording of the Bill obviously covers the doctor or the obstetrician in a situation in which the baby's life is ended, but does not seem to cover them in a situation in which the baby survives. They have got separate legal advice. The Minister will have to concede that at this level - where the baby has a disability - serious liability issues could arise.
I ask the Minister again to specifically point out the part of the Bill that covers issues related to doctors' liability and provides that doctors are operating lawfully in cases where a baby survives an abortion and is disabled. This would arise around the cusp of viability period we discussed.
I am deeply disappointed with the Minister's response. While he may pretend otherwise, it is not really a response to hide behind yet another mantra that he is relying on advice from the Attorney General. The Attorney General has been used, possibly as an unwitting battering ram, in this debate for months, during which the purported rationale for the Attorney General's supposed advice has not been shared with us. This is a disgrace to the parliamentary process and an indictment of the Government's attitude to the Legislature. It is much too easy to invoke the advice of the Attorney General when one does not have a credible answer.
On a point of order, it is standard procedure in all legislation for Ministers to rely on the advice of the Attorney General.
It is a point of disorder.
Senator Mullen should continue without interruption.
I am sure the Minister will regard Senator Colm Burke's point of order as very helpful.
I dealt with the Minister's objection that the incorporation or use of the words "may be" would somehow encompass other procedures. Bizarrely, he chose to cite amniocentesis but did not illustrate what harm such unintended inclusivity would do. It should be remembered that we are discussing rendering lawful a procedure that may result in the unborn child's life ending. The reason for inserting the words "may be" is to cover circumstances in which the unborn child's life does not end. There would not be any actual mischief even if, as the Minister claimed, using these words would include cases such as amniocentesis, even if the latter was not the offence. If that were to be the case, there would be no harm done. It is, however, ridiculous to suggest it would include such things. The most basic understanding of the rules of statutory interpretation - the Attorney General certainly has such an understanding - would allow a court to understand that when one is interpreting legislation, one does not only interpret matters literally, certainly not if to do so would lead to an absurdity. Various rules of statutory interpretation include, for example, what is called the purposive approach where the courts examine what is the intent of legislation and what it is designed to achieve. Clearly, the amendment is designed to achieve the protection - at this point it is not a duty - of doctors who might carry out a procedure which did not result in the death of the child. As the Minister pretends and insists, albeit without reassuring legislative support, this is supposedly being done under section 9. There are supposed to be cases where a child might be brought out alive and its life preserved because it has reached a point of viability. However, the Minister does not confer any protection in the relevant section 9 for a doctor in such circumstances because the only thing being made lawful is a procedure that ends the life of the child. There is a massive lacuna there.
To respond to Senator Thomas Byrne-----
It is not necessary to respond to other Senators.
The issue the Senator raised contributes to a potential misunderstanding of what I have proposed.
The only answer that matters is that of the Minister.
While I do not propose or desire to speak for the entire evening, I want to address a criticism that has been made of my point. The difference is that section 9 changes everything because sections 7 and 8 involve necessary medical interventions-----
As the Senator is well aware, we are discussing amendments, not sections 7 and 8.
Sections 7 and 8 deal with necessary medical interventions to save the life of the mother. In such circumstances, there would be no desire to end the life of the child. Section 9 is a horse of a completely different colour, however, owing to the nature of the suicide issue.
On a point of order, is the House being given a law lesson or is Senator Mullen asking a question?
Please allow Senator Mullen to continue without interruption.
Senator O'Donnell seems to be under the impression that the role of the Legislature is to ask questions of the Minister.
I am under the impression that since I entered the Chamber, all I have heard is the truth as defined by the Senator.
Please allow Senator Mullen to make his point.
Rather than trying to demonise, the Senator should note that the role of the Legislature is to propose amendments.
I am not here to listen to the Senator's definition of the role of the Legislature. I know exactly what it is.
Please allow Senator Mullen to make his point.
Under section 9, there may be and will be circumstances where what is sought is the end of the pregnancy in circumstances that will entail the death of the child. The Minister has reassured us that a doctor will be under a duty, if the child is capable of being kept alive, to save the life of the child.
The Senator is being repetitive.
It is extremely serious that I am being barracked in this manner when I am trying to explain a point, as we are all entitled to do.
Section 9 makes it necessary that a doctor be protected and mandated, as other amendments propose, to ensure that a child capable of being born alive is not destructively aborted. It is for this reason that the words "may be" matter so much.
For the sake of consistency, it is important to answer Senator Thomas Byrne's point that sections 7 and 8 would confer a similar protection on doctors. Were it only about section 7 or 8, it would not be such a problem because under these two sections there would be no question of an intent to take the life of the child as a doctor helping a mother in a medical emergency also wants to save the baby. That is the answer to Senator Thomas Byrne's objection and it is relevant to our understanding of the amendment I have proposed.
I share Senator Mullen's frustration at not being given access to the Attorney General's advice. I have spoken on many other Bills where it would have been wonderful to have access to such advice. The position, however, is that we cannot do so on this or any other legislation.
That is not a matter for today's debate, although having discussed it many times previously, perhaps the issue should be the subject of a separate debate. I understand the frustration this creates.
I will clarify a matter for Senator Mullen related to the UK Abortion Act of 1967. Where time limits do not apply, the Act does not expressly deal with whether the threat to life is physical or otherwise. The provision relates to a threat to the life of the woman, whereas the 24 week term limit applies where there is a risk of injury to physical or mental health.
Why is the Senator discussing UK legislation?
Several Senators misquoted the UK Act.
With all due respect, it had nothing to do with the amendments.
With all due respect, Senator van Turnhout is entitled to make a point, although perhaps we should move on.
I have seldom spoken in this debate. However, having listened to a great deal of misinformation, I decided to correct the record.
This has nothing to do with the UK legislation.
I am interested in Senator van Turnhout's point.
I thank the Senator for his understanding.
While we are clarifying the record, Senator Jim Walsh has, on a number of occasions, described particular procedures in the context of the termination of pregnancy. He challenged me this morning to make a statement that these procedures will not be used under this legislation. I have spoken to the master of Holles Street and I am assured, as of this afternoon, that the practices Senator Walsh describes do not take place in this country. There is no dilation and evacuation of the remaining contents of a partially ended pregnancy in cases where a termination must take place and is carried out more than 12 weeks into a pregnancy. In pregnancies of under 12 weeks, while surgical options are available, the procedures used are primarily medical. In cases where the pregnancy is more than 12 weeks, the baby is induced and if it is viable, it will be looked after and saved. Sadly, this cannot be done if it is not viable.
Senator Mullen seems to describe every line he dislikes as a mantra. That is his prerogative but it rings hollow after a while. There is no lacuna in the Bill in relation to what he described because sections 7 to 9, inclusive, all state unequivocally that the medical practitioner may perform the medical procedure based on his or her reasonable opinion, "being an opinion formed in good faith, which has regard to the need to preserve unborn human life as far as practicable".
It could not be clearer.
Does Senator Mary Ann O'Brien wish to contribute? I apologise that I allowed the Minister in before her, I did not see her indicating on time.
I thank the Leas-Chathaoirleach and the Minister for his response. I wish to clarify the gestational term. As we are aware there is no gestational term in the Bill. I am heartened by the Minister's last response where he said he spoke to the master of the Rotunda or Holles Street this afternoon. We are clarifying that after 12 weeks the baby is induced and delivered and if the baby's life is viable it will be saved. That is what we are going to do in this country as provided for in section 7, 8 or 9.
It cannot be saved after 12 weeks.
I know but we said this morning that 23, 24, 25 weeks is the cusp of viability. We all want to know that if there is a chance for this little baby, for every single doctor who is ever going to be involved in saving the life of a mother, under sections 9 or 7, that the baby will be given every opportunity to have a viable life and to live to its potential. That is what I understood from what the Minister has just said.
I support what the Minister has said. I have spoken to three practising obstetricians in this country today. They are incensed by what was said in this House yesterday as regards the procedure that was described. All three advised that the procedure described here yesterday is pre-1975. It is important that full clarification is provided on this matter as so much incorrect information has been given out here. These are three practising consultants, one of whom is Professor Robert Harrison. He asked that he be specifically quoted. He worked in England from 1973 to 1979. The procedure which was described here yesterday was not carried out in England in the time period he worked there. It is important that clarification is given.
The Minister's answer is very helpful. My question is very simple. There are two stages to this issue, post-12 weeks and post-viability. We know that a baby at 12 weeks will not be viable. We are talking about probably 22 weeks plus. I am fortunate to be the aunt of little twins who were born at 24 weeks and are now six years old. We know in my family what is possible. We did not see those little babies for four months after they were born because they could not be visited except by their parents. The fundamental question is this: if the Minister is saying that a baby will be delivered on the cusp plus post-viability and everything will be done to save that baby's life why does he not put that wording in the Bill? I want the Minister to specifically answer that question. Why does the Minister not put that wording in the Bill? I heard Senator van Turnhout say that we always hear "It was the Attorney General who told me". We get tired hearing this when we do not know what the Attorney General is actually saying. I will return to the second question which concerns pre-viability. As the Minister mentioned the period from 12 weeks to viability, there is a potential ten week period. What will happen to that baby? As they are not viable, what will happen from 12 weeks to the viable stage which is 22 weeks?
I am glad the Minister took on board the question and that he sought clarification from, presumably, one of the masters of the hospitals on that issue. I note that the Minister said "is" - in other words, the present tense. I fully accept that in Ireland today any procedure that is done is to treat the mother and the mother's life threatening condition and, therefore, an indirect consequence of that is that the baby is lost. However, this Bill changes from that position. I am concerned about section 9. Like Senator Colm Burke, I have spoken with obstetricians in this country.
The reference I made on Second Stage was to what happens in the US. I made clear what I was dealing with. I spoke today about procedures and the Minister has confirmed that both medical and surgical interventions will be required if one is to abort a baby. I accept what he said. I ask the Minister to correct me if I am wrong, that the medical procedure would be in the first six weeks and from six to nine weeks one would have the surgical procedure.
I am not asking the Senator. After that, my understanding is that one is into the medical procedure again, which the Minister described, but in all instances the baby does not survive. It is the killing of the baby. That is the situation. That is my fundamental substantive objection to the Bill. In this instance I would like the Minister to clarify the cusp of viability which is what I focused on with this amendment. I accept what the Minister has said in relation to the amendment. On the cusp of viability, I am told by the people working within the medical profession, who are the people who will be charged with the responsibility to carry out these procedures, that their legal advice is that they are exposed or, at best, that it is ambiguous and that they do not have liability cover and, therefore, that the clarity surrounding their position will be better, should the baby not survive the procedure. Will the Minister tell the House how and where the liability issue for a baby who survives covers the medical profession, the practitioner involved?
I accept the Minister may not have that answer to hand. With due respect, he does not. If he has, I ask him to repeat it, but I certainly did not pick up on it. What he did say was that if they act outside the Act they are unlawful. This deals with a situation where the life is ended. Where a life is not ended but the baby is seriously injured and disabled, what is the position? In other words, the baby survives the procedure but in a way that would give rise to a fairly substantial claim on the baby's behalf because of the disability. Where is the cover for that in the Bill? I would be grateful if the Minister could clarify that issue and, if not now, I will be happy to accept it on Report Stage.
I will repeat what I said earlier. My understanding of the legislation we are discussing relates to formalising the law as it stands in this country and to give clarity to the current legal position. There are about 50,000 live births in this country every year. For every 50,000 live births here every year there are approximately 14,000 miscarriages. A considerable number of those miscarriages take place between 14 and 16 weeks, though the majority take place at a much earlier stage.
That figure should have been 70,000 births and 14,000 miscarriages. A hell of a lot of muddying of the waters has been going on here with regard to this issue. It seems there is an attempt being made to distinguish children who are born into the world as an unfortunate consequence of the efforts to try to save the life of the mother from children who are born prematurely in the natural way. Having sat through many days of hearings, I understand there is no difference between these two categories. The medical professionals engaged at the forefront of obstetrics and gynaecology in this country do not differentiate between these, but do everything they can to save the lives of those children.
With regard to negligence and who is responsible, an unwanted child who, for the sake of argument, is born to a drug addict in one of our Dublin hospitals is in the same position and needs the same care as a child who may be born because there is a threat to the life of the mother. It does not matter how the child comes into the world; the State's responsibility is the same. Either that child is cared for by parents who are capable of caring for it or the State cares for it. I do not see a difference. It surprises me that we are going over and over these issues. I have lost track of the number of times we have gone over it.
I understand that all children who are born must be cared for by the State, irrespective of the situation in which they are born. The State has a responsibility. It does not matter whether the child is born due to the fact an effort is being made to save the life of the mother. If that child is viable, it will be protected by the State. I am at a complete loss to understand the point being made by the Senator.
With great respect to Senator Hayden, she seems to be talking about the situation once the child is born. What is at issue here is what protection a doctor has to ensure that if he or she acts in a way that does not take the life of the child but brings the child into the world alive, he or she will be protected in light of the criminal law in that regard and that he or she is not perversely incentivised to act in a more destructive way. That is the core of the issue.
We all agree that once a child is born alive, the duty is there. I think the Minister has revealed he does not understand the legislation. I say this -----
We do not understand what the Senator is saying. It is illogical and meaningless. That is why we do not understand it.
Put it down to the Senators not understanding the law lecture of Senator Rónán Mullen and we are not going to pass his exam and that we do not have to pass an exam and interpret the law the way he does.
Senator Mullen may not agree with the Minister, and I understand that. I ask Senator O'Donnell to allow the Senator continue. I have listened to and chaired much of this debate and there have been a lot of interventions, with one side having a go at the other and never the twain shall meet. Obviously there are opposing views. Though the Senator may differ in his view, it is inappropriate for him to say the Minister does not understand the legislation.
And he suggests the rest of us do not understand it.
The Senator's interventions sometimes only prolong the debate. She may mean well, but she should allow Senator Mullen continue before I ask the Minister to respond.
In comparison with Senator Mullen, I could not be accused of prolonging the debate. He has been speaking for hours.
With all due respect, I will decide when the vote is called. I am trying to be fair to everyone.
I stand corrected.
I thought I was being kind. What we cannot get away from is that there is new legislation on the block and as we all know, this new legislation changes the existing situation.
It does not confer any further rights.
By definition, this will be the legislation referred to in the context of any litigation. Therefore, we have a changed situation, regardless of whether Senator Gilroy likes it.
It clarifies the existing position.
I ask Senators not to interrupt because that only encourages further debate. There should be less goading, which is what is happening. Senator Mullen has a right to make his point and when he has concluded, I will ask the Minister to respond and then put the question.
The legislation is not about whether we trust doctors or about whether a particular doctor will set out to do wrong things. Legislation should be about putting an issue beyond doubt. I trust doctors, but I am not so sure I trust all doctors.
We have not heard an argument against including protection for a doctor who intervenes in a way that leaves the child alive. By way of justification for his approach - this is why I question his understanding - the Minister pointed to the provision that there must be a reasonable opinion formed in good faith which has regard to the need to preserve unborn human life, and some amendments have been submitted in this regard, because there are problems with the definition of "reasonable opinion". Let us be clear, this does not say it shall be lawful to carry out a medical procedure where human life is ended, where the person has regard to the need to preserve unborn human life. It does not say that.
It could not possibly say that.
It is in the Constitution already.
What it says is that it is lawful to end a human life where the people who have certified that the abortion or procedure is called for have "had regard" - whatever that means - to the need to preserve unborn human life. Therefore, it is the people who certify the abortion who must have regard to the need to preserve human life, but the only protection for the doctor is if he or she carries out a procedure that ends human life. Therefore, what is being said in this section does not add up and is not an adequate argument. I appeal to my colleagues to understand this reasonable point. The provision does not add up because it does not require that the person who carries out the abortion has regard to the need to preserve unborn human life. Rather, it requires that the people who certify the need for an abortion form an opinion that the abortion is necessary and that they have regard to the need to protect human life. The person carrying out the procedure is the person being protected in this legislation, but only in cases where he or she ends the life. That is the problem and that is the lacuna.
I apologise. What I have argued is certainly not an attempt at any kind of legal snobbery. I was not sufficiently long practising at the bar to even have the right to claim experience. However, I would like to have the Attorney General here to hear what she has to say, because the argument made by the Minister does not stand up.
I will give a brief response. In regard to legal advice, apart from the fact there is no tradition of the Attorney General sharing his or her advice, even on discovery of documents the advisers of one's attorney are not open to discovery. If I tell the Senator what I say is the advice of the Attorney General, he can be sure it is. If it was not, she would be very quick, and right, to correct me.
As we are going around the houses on this point, I will not add further to it. The doctor acts within the law and is protected by the law. In regard to compensation claims, etc., all our obstetricians and gynaecologists are covered by a State indemnity scheme, but I do not believe there would be a claim because the doctor is acting within the law.
There has been substantial debate on amendment No. 13, but obviously we will not get agreement on it. Is the Senator pressing the amendment?
Amendment No. 14 cannot be moved.
I put forward amendment No. 14 and would like a response from the Minister before deciding whether to press it.
As the Minister for Health has already said what he can say on this section, we will move on to amendment No.15.
Then I am going to move my amendment.
It cannot be moved. That is the ruling. Amendments Nos. 15, 33 and 54 are related and may be discussed together.
I wanted to move it.
It cannot be moved because it has already been discussed with amendment No.13. That is the procedural agreement.
Why can it not be moved?
Amendment No.13 has been dealt with. As amendments Nos. 13 and 14 are related, it cannot be moved, as it has already been dealt with with amendment No.13. That is my ruling.
I move amendment No. 15:
In page 8, line 31, to delete “have jointly certified in good faith that” and substitute “and having regard to the relevant clinical evidence, have jointly certified that”.
These issues are somewhat fite fuaite, but in a way they follow directly and logically from what we have been talking about for the last while. Whereas what we are talking about for the last while related to the question of the protection for doctors who carry out a procedure that did not take the life of the unborn - it is no consolation to me to think that doctors might none the less risk not taking the life of the child on the basis that they would be covered by their professional indemnity; I found that a very worrying sop - this amendment relates to the last issue to which I referred, namely, the certification as distinct from the carrying out of the procedure. This does not relate to the emergency procedures. A good faith certification does not arise in that situation, but it does relate to the section 7 procedure and the section 9 procedure, and it also relates to the issue of the review of the relevant decision. In the situation where abortion is not certified at first instance, the review committee has to apply the same test and ask whether there is a real and substantial risk of loss of life, and whether "in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure," that risk can only be averted by carrying out a medical procedure referred to in section 7(1) or section 9 (1), as the case may be.
We have a distinction here between the role of the person carrying out the procedure and the people who certify the procedure in the first place. As I pointed out to the Minister, it is the people who certify the procedure that must have regard to the need to preserve the life of the unborn as far as practicable, and not the people who carry it out. Let us look at the quality of that certification, given the far-reaching consequences for the unborn child, in the context of section 9. In any situation where medical professionals are asked to certify that a procedure resulting in the death of the unborn is the only way by which a risk to life can be averted, it is reasonable to expect that they would be informed by the relevant clinical evidence. There are problems with the good faith test because of its subjective nature.
My amendments provide that having examined the pregnant woman, instead of "having jointly certified in good faith", they would be required to "have regard to the relevant clinical evidence and jointly certify". Therefore, we are not talking about a requirement of good faith, which is subjective. We are talking about a requirement of having regard to the relevant clinical evidence, which is something that can be judged more objectively.
There were hardly any medical negligence cases in Ireland until 1989. In that year, the case of Dunne v. National Maternity Hospital came before the Supreme Court and remains the seminal case in medical negligence to the present day. Two of the principles set down by former Chief Justice Finlay for establishing medical negligence are as follows:
The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualification.
These principles helped found the test of a reasonable standard of care, which is the main test for establishing liability in medical negligence cases. Medical professionals have to act with ordinary reasonable care. If the diagnosis or treatment were reasonable, then there can be no finding of negligence. At our hearings, Dr. Ciarán Craven pointed out that there is a higher test applying in the case of negligence. He stated:
In so far as the law of tort is concerned, it used to be dealt with in the context of whether one followed, adhered to or subscribed to a general and approved practice, in other words one which was followed by a responsible, reputable or respectable body of professional opinion. That was the classical test and the classical formulation.
He pointed out that this has undergone something of a transformation in recent years, especially since HM v. the HSE and a decision of Mr. Justice Charleton from July 2011. The key point from that decision is that evidence-based professional guidelines were deemed to be incorporated into the appropriate standard of care, and Dr. Craven stated that "seemed to represent something of a shift in so far as the courts are concerned from this deference to clinicians in terms of what is or is not appropriate." He went on to state:
A further issue has also arisen. In its decision in the case of Kearney v. McQuillan, the Supreme Court went further in stating that health care professionals owe and always have owed a duty to patients to protect their constitutional rights.
Underscoring both of these cases seems to be the requirement for some evidence in terms of one's evidence. In order to fulfil ethical and legal obligations, there must be some evidence in terms of what medical practitioners do, and that is about the only way the ethical injunction primum non nocere, or "first, do no harm" can be fulfilled.
When it comes to the question of certifying certain opinions in sections 7 to 9, inclusive, and 13, in each case there is a requirement that the opinion be formed in good faith only. When one is relying on the good faith safety justification, that justification will always succeed. Trying to demonstrate mala fides, bad faith, or even improper motivation in this area, is virtually impossible. There is a whole series of cases where this has arisen under the old mental health legislation in the past 40 years. With respect, it seems what is happening in this Bill represents a very old fashioned approach which is inconsistent with the ethical and now the legal and constitutional duty that the courts have elaborated on over the past two years. A good faith opinion, which is accepted without any reference or is unsupported by any reference to evidence-based practice, is regressive or potentially dangerous. That is the point.
It is not good faith, by definition.
It is subjective.
Senator John Gilroy's interventions might be unhelpful to the debate.
If only a good faith opinion is required but there is no reference to evidence-based practice, we are going backwards and not forwards. The primary reason for the changes I am proposing in these amendments is that any reasonable opinion be based on medical grounds alone, not on any extraneous non-medical considerations.
In the Bill in its current form, there is a remarkable lack of any requirement that medical practitioners should have clinical reasons for their decisions. There is a reference to clinical grounds, but it appears there is a related incongruity. Section 19 requires a certification to contain the clinical grounds for carrying out the medical procedure without any provision in the Bill that requires the medical practitioners involved to have clinical grounds. They must form a reasonable opinion. In a way this makes a nonsense of the use of the word "reasonable" when it is being made subject to a rather out-of-date subjective test, namely, that of perceived good faith.
I see a good deal of merit in what Senator Mullen has said. There is a danger in relying on a good-faith opinion. How can we ethically justify the taking of a life of a baby without clinical markers? The Minister has given us many assurances, but, to be fair, once this law is passed they will carry no weight. There is nothing in the legislation to prevent two psychiatrists from signing away the life of an unborn child once they claim it is in their reasonable opinion. Since there are no clinical markers to judge whether the intervention is necessary, they are free to sanction as many abortions as they wish and the absence of that objective standard concerns me greatly. Will the Minister comment on why there are no clinical markers?
I have before me a letter from a doctor. She has given her Medical Council registration number. She has spoken about her experiences working in the United Kingdom although she is now working here. She said to me that a consultant in obstetrics in the United Kingdom with whom she worked some nine years ago advised her at the outset that he would do any abortion on any patient who requested it. He said that he could rely on like-minded colleagues in psychiatry and general practice to sign the necessary legal forms. The justification offered for this policy was that no doctor could be certain that a woman with an unwanted pregnancy would not complete suicide.
The Minister of State at the Department of Health, Deputy Alex White, justified the need for the Bill on the same grounds. This is the danger of relying on a good-faith opinion. The rate of suicide among women in pregnancy in Ireland is of the order of between one in every 250,000 and one in every 500,000. Thank God, it is a rare event. However, we know that women experience suicidal thoughts in pregnancy. In fact, approximately 15% of pregnant women experience suicidal thoughts, but this does not mean that they complete suicide.
I return to my original question. How can we ethically justify the taking of a baby's life without reliable clinical markers? How can we rely on good faith when we know there is boundless evidence to show that after several years this becomes common practice? There are even pre-signed forms in the United Kingdom such has been the abuse of the system in time. If the Minister could answer those questions I would be delighted.
I have no wish to prolong the debate but I wish to make some comments on this amendment and the section. Senator Mullen speaks of the test of reasonableness. He quotes from the Dunne case of 1989. However, the precedent of reasonableness was established long before that. If memory serves me correctly, it dates back to 1856. Blyth v. Birmingham Waterworks Company is the test case during which the Lord Justice at the time described reasonableness as the standard of the man on the Clapham omnibus or the man on the street. That is what is considered reasonable. Let us consider reasonableness and juxtapose it with the other term in the section, that is, good faith. There is no possibility of any reasonable person acting in good faith while ignoring the medical evidence. Senator Mullen's concerns are entirely and completely unfounded. They are selective and perhaps even amount to a misunderstanding of the intention of the legislation.
Senator Healy Eames made a point about there being no markers for suicide. She absolutely and fundamentally misunderstands the nature of suicide. There are many objective markers. If we are to say that our consultant psychiatrists are unable to diagnose suicide to within the standard of reasonableness which is required under this legislation, then we might as well say that there is no such thing as suicide or mental illness or the psychiatric profession. That is what we suggesting if we say what Senator Healy Eames has said.
I made the point to Senator Mullen some time ago that it is not the threat of suicide that we are legislating for, but the risk of suicide. The risk of suicide sometimes, but only sometimes, includes the threat of suicide. Other markers include the formulation of a plan, suicidal ideation or perhaps some last final acts. There are many markers that are absolutely, 100% objective and any psychiatrist who says there is none should not be a psychiatrist. It is as simple as that. It would be like a cardiologist being unable to diagnose heart failure. To say or suggest otherwise is to move into an area that is extraordinarily dangerous and amounts to denying that suicide and suicidal ideation are medical emergencies. If we accept that suicide and suicidal ideation and intent are not medical emergencies, then we are in trouble. Further, I believe we are in real trouble by making this argument in the first place.
I started work as a psychiatric nurse in 1984. The stigma associated with mental illness and suicide in 1984 was appalling. We have made, or, we appear to have made, great strides in reducing that stigma. I believe that the conversation in the Chamber and the use of the threat of suicide by opponents of the legislation has set back that work to pre-1984 levels. It is an absolute disgrace. People are speaking from a position where they simply do not know what they are talking about. They do not know the harm they are causing to the mental health services of the country. I am furious about it, because it is a fallacious argument and it is absolutely wrong. No one can convince me that there is any shade of wrongness about it. It is 100% wrong. I call on the Senators to have cognisance in their comments for the stigma reduction measures that we have been trying to put in place in the country for the past 30 years.
Senator Mullen raised a particular issue. It is important to note that the level of litigation in medical negligence is highest in the area of obstetrics and gynaecology. Obstetricians are always remarkably careful in how they manage their patients and that will continue. The level of litigation is high in this area not because people intentionally go out to cause a problem but because of the difficulties in the job that they must deliver on and the work they must do. Unfortunately, there is a high degree of litigation as a result. It is something that they must live with.
Reference was made to the area of obstetrics and gynaecology. I understand that the life expectancy of a consultant obstetrician is 63 years because of the stress levels associated with the job.
If I understood Senator Mullen correctly, he said that medical negligence really only took off after 1989. However, medical negligence claims were around long before 1989. While the rules may have changed somewhat in 1989, it was not the case that there was no medical negligence pre-1989. Perhaps I picked up the comments of the Senator wrongly in that regard.
In fairness to every consultant and doctor in the country, they intend and will continue to protect the life of the mother and the life of the unborn. I emphasise that this legislation will change nothing in the way they will manage their patients from here on in. Their priority is to do the best for both and that is what will continue to happen.
I have been listening to the debate on the three amendments and believe they are reasoned amendments. They bring me back to when the Animal Health and Welfare Bill was before the House. At the time all main farming organisations were lobbying intensively to have the powers of officers working for the Department changed from operating on reasonable grounds to operating on evidence-based grounds.
To be fair to the Minister for Agriculture, Food and the Marine, he was sympathetic to the cause and did bring about changes in that Bill which was to do with animal welfare.
We are now talking about human beings and basing decisions on good faith. That is not to question in any way the professional conduct of members of the medical profession but we must bring evidence-based medicine into the decision-making process for abortion where the life of the mother is in danger through the risk of suicide. I draw the attention of the House to a report by Dr. Eleanor Corcoran from County Donegal, a consultant psychiatrist of 27 years' experience in the area of suicidal behaviour, its management and prevention. She states that in 2011 there were 525 suicides in Ireland. Of those only 100, or approximately one in five, were women. Approximately one in five of all suicides in Ireland, as I understand from the Department's figures are young men. When we are debating suicide we should not narrow or demean the debate by saying that it pertains only to women because it is a major problem in our country due to the financial pressures and burdens on people. If we really want to deal in a societal way with the scourge of suicide we would take a more holistic approach than the knee-jerk reaction of introducing the Bill before us. Let us never narrow the debate-----
Does the Senator call 21 years a knee-jerk reflex? That is a long reflex.
Does abortion reduce the risk of suicide in pregnancy? There is no suggestion in any of the core psychiatry or peri-natal psychiatry text books that abortion is a treatment on its own or as part of the risk reduction measure for suicidality in pregnancy.
That is more appropriate to section 9.
I am happy to defer to the section by all means if the House considers that is more appropriate.
That is the critical section on the whole area of suicide, to avoid repetition.
When we are legislating on a health Bill - this is a health Bill, one which will define Irish history in the years to come, whether people get the chance to live or whether they will be aborted - we should make sure that the legislation is evidence-based. All of the medical evidence coming from pro-life and pro-choice psychiatrists suggests that it is almost impossible to determine whether an individual would carry out a suicide-----
The Senator cannot make that statement.
-----when she presents in the manner outlined in the Bill because it is very difficult to pre-empt what people would do.
If the Government and the Minister are serious about dealing with the issue then why confine it to good faith, why not look at the evidence-based medical practice? Why not include medicine-based best medical practice? Why confine it to good faith? Good faith is very wide. That is not to question the good faith of clinical professionals or doctors but it leaves a very wide umbrella under which decisions can be made.
If we are serious about protecting and supporting women through what is potentially the most difficult time in their lives we should make sure that decisions are bases on the best medical evidence and not just on good faith. That is why I support these amendments.
I remind Members that we are dealing with the risk of loss of life from physical illness and that the suicide issue is confined to section 9. I remind Members who are maybe of an opposing view not to concentrate on this because it is ultra vires the issue before us.
The Minister has not had a chance to respond to me yet.
Senator Cullinane has not spoken yet. He should try to avoid the suicide issue which is in section 9. There are a lot of other amendments on that issue.
I have no intention of raising that issue at all. I am very reluctant to speak but I want to make one comment on these amendments. The previous speaker said that he was not happy with the words “good faith”. Several Senators have said this several times. They then go on to say that they do not want to call into question the decision-making capacity of any medical professionals but that is exactly what they are doing. That is the point. I believe that the wording here is very clear. It states:
It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where—
(b) subject to section 19, two medical practitioners, having examined the pregnant woman, have jointly certified in good faith that—
(i) there is a real and substantial risk of loss of the woman’s life from a physical illness, and
(ii) in their reasonable opinion,...
This is based on good faith. To me it could not be any clearer. It is crystal clear. The argument being put forward by some people, who are allowing themselves very deliberately be wrapped up in linguistic arguments for their own purposes, is that they do not believe that even where there is a risk of loss of life from physical illness a termination should be allowed. There are people who hold that view. One could argue that they are entitled to hold that view.
Nobody here holds that view.
There are people who hold that view and they are entitled to hold that view but that is what is at the heart of some people's arguments here. This is very clear-cut and page 8 of the Bill carries the heading "Risk of loss of life from physical illness". That is what we are talking about in these amendments and the words are very clear.
I am astonished that we have spent so long on this section. It is utterly superfluous. Senator Cullinane has put his finger on it, concisely. What other way would a doctor form an opinion except using the clinical evidence in front of him or her? I am not accepting these amendments. They make no sense at all. They are utterly unnecessary. I do not think I need even read my note. I have made the point quite clear.
Is Senator Mullen pressing the amendment?
I would like to make a comment and respond to that response. I want to point out as well that I have not questioned anybody's integrity here today. I might have shown my asperity with the quality of some of the responses that have been given but I have not questioned anybody’s good faith. There have been several implications about my good faith in bringing forward amendments and I ask those who have made those implications whether by way of hissing or booing or direct statement to desist.
If the Minister does not mind my saying - he can correct me if I am wrong - his last response struck me as slightly contemptuous of the amendments.
He was clear on the point.
I would like to address it. First, I accept Senator Gilroy’s good faith in his desire to prevent suicide and to do everything to address the problem of suicide.
That is not my point.
Senator Mullen has tabled this amendment. I accept that he has done so in good faith and he is entitled to expand on it. At the same time I think that it is unwise and foolish to-----
Could I ask the Leas-Chathaoirleach to make a ruling? When Senator Gilroy says something that I feel is unjust to me, I may shake my head sadly. I make a little note and prepare to rebut it when I get a chance because that is the more courteous thing to do. The Senator has not let me expand on what I was going to say. I know what he means. He suggests that by raising these questions-----
There is one issue on which I have ruled, that is that the suicide clause is dealt with in section 9. Senator Gilroy probably wandered into that section unintentionally or otherwise.
For the merit of Senator Mullen's amendments, he is quite capable of dealing with them without going down the road of the suicide clause.
There is a difficulty because my amendment No. 15 which is in the group of amendments to which I am speaking is an amendment to section 9.
The other amendments relate to different sections.
Section 9 is the key provision. I hope the Leas-Chathaoirleach will allow me to clarify a few issues.
First, no suicide prevention expert has said that what is in this Bill is a good thing. In fact, we heard one very eminent suicide prevention expert, Professor Kevin Malone, warn about the dangers of foregrounding suicidal feelings in the way the Bill does. Although I am not an expert, I believe I am on very safe ground in warning about the wider collateral dangers of the legislation. However, my primary focus is on the danger to the unborn child of allowing abortion in situations where there is a real and substantial risk to the life of the mother originating in the threat of suicide. I certainly am on safe and accurate ground in so characterising it. We have heard all about the incidence of false positives and so. There are clinical markers for suicide, but they are very uncertain. The reality is that psychiatrists find it extremely difficult to know whether a threat of suicide is likely, tragically, to materialise. We heard other psychiatrists saying it should not be a matter for their profession to determine this issue at all. Senator John Gilroy is not doing me justice in this instance, because there is a clear problem here.
Senator Gilroy also raised the question of reasonableness. He seems to be suggesting that in the case of a certification under section 9 there is a real and substantial risk to the life of the mother which can only be averted by this procedure, the opinion of the practitioners in question must be reasonable and must be in good faith. However, that is not what the legislation says. In fact, the notion of a reasonable opinion is actually turned upside down in the legislation because it defines for us what a reasonable opinion is. It is defined as an opinion formed in good faith which has regard to the need to preserve unborn life as far as is practicable. It is entirely subjective.
The standard of reasonableness is a well accepted and well established legal precept.
The standard of reasonableness for the purpose of this legislation is defined in the legislation. With respect, that is the point which has been missed. The Bill does not require that an opinion be reasonable and in good faith. Rather, it tells us what "reasonable" means for the purpose of this legislation. It is not an objective test but a good faith test which is entirely subjective. As I said in my opening comments, it is extremely difficult to make a finding of mala fides. What I am proposing as being desirable and necessary given the life and death issues at stake is a more objective test which would require that the certification be jointly certified and have regard to the relevant clinical evidence. In other words, if people have their evidence right, we need not worry about good faith or bad faith because they will have to do what is right according to the evidence. That is safer from the point of view of protecting all the lives involved.
Senator Colm Burke referred to medical negligence and the likelihood or otherwise of litigation. The point is that the victim will not be around to litigate, which is why we have to ensure there is a safe and objective test. I already pointed out that the clinical grounds are not actually mentioned, although they are referenced in another section.
On the point raised by Senator David Cullinane, there is no contradiction between having problems with a good faith test and also saying one has a problem with, as he put it, the decision-making capacity of some medical professionals. To be clear on this, we all trust women and we all trust doctors. Sometimes, however, there are doctors who perhaps cannot be trusted and that is why we have legislation. The whole problem with the abortion on grounds of suicide provision is that it opens up what many of us see as the likelihood of an abortion-on-request scenario, as we set out on Second Stage. The problem is that not all doctors believe they have a duty of care to the unborn. In that sense, I have to say in all honesty that I do not trust all doctors. I do not trust those doctors who came into this House and said abortion should be available as a matter of choice. I do not see how those doctors can be trusted to protect unborn children under this legislation. I do not think it makes me a bad person to say there are doctors out there who cannot be trusted in this regard. As I said yesterday, there are doctors in Britain trained to save lives as obstetricians who are skilled in the destruction of life as abortionists. That is the reality of the Western world.
It is a little unfair to say to those of us who have concerns about this legislation that we do not trust certain people. The whole point of good legislation is that one does not have to rely on trust. If we trusted everybody we would all be angels and there would be no need for legislation at all. Let us make credible arguments and be fair to each other. I certainly trust doctors. Sadly, I do not think it is possible to trust all doctors. That is probably why we have a fitness to practise committee at the Medical Council and why there are occasionally cases of breach of good practice which sometimes result in practitioners being struck off the medical register. That is the world we are living in, not a perfect world in which everybody acts ethically. It is why we need law and it is why I am proposing the tightening up of this unfortunate legislation.
Does the Senator wish to press the amendment?
As there are no Tellers on the Níl side, the vote will not proceed. I declare the question carried.
Amendment No. 16 is in the name of Senator Walsh. Amendments Nos. 16, 17, 20, 22, 25 to 28, inclusive, 35, 36, 41 and 55 are related. Amendment No. 17 is an alternative to amendment No. 16. Amendment No. 26 is an alternative to amendment No. 25, while amendment No. 36 is an alternative to amendment No. 35. Therefore, amendments Nos. 16, 17, 20, 22, 25 to 28, inclusive, 35, 36, 41 and 55 may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 16:
In page 8, to delete line 34, and in page 9, to delete lines 1 and 2 and substitute the following:
"(ii) in their reasonable opinion (being an opinion formed on reasonable grounds and in good faith which has regard to the right to life of the unborn), that risk can only be averted by carrying out the medical procedure,".
This is an important amendment. It proposes the deletion of section 7(1)(a)(ii) and its replacement with the words "in their reasonable opinion (being an opinion formed on reasonable grounds and in good faith which has regard to the right to life of the unborn), that risk can only be averted by carrying out the medical procedure". My amendment proposes two changes to the wording of the subsection. I am including an additional ground for the reasonable opinion. I understand that reasonable opinion, where one qualifies it as formed on reasonable grounds, tightens any legal interpretation of it. Where subsection (1)(a)(ii) states "which has regard to the need to preserve unborn human life as far as practicable", I propose the insertion of the words "which has regard to the right of life of the unborn". My motivation for doing that is that I am using the words that are in the Constitution, namely, "the State acknowledges the right to life of the unborn". I seek to have those changes made for the reasons I mentioned.
Does any other Member wish to speak to the other amendments?
I wish to speak to amendment No. 20. It proposes:
In page 9, between lines 5 and 6, to insert the following:
"(c) where the unborn is sixteen weeks gestation or older, an effective anaesthetic for pain relief shall be administered to the foetus before the medical procedure is commenced, provided this does not increase the risk of the loss of life of the pregnant woman.".
The Minister will note I discussed this earlier today and I raise it again to let him know that I have agreed to defer it until Report Stage. I did that for the express reason that I hope that when we come back here on Monday to discuss it again the Minister will able to discuss foetal pain and how he proposes that would be addressed. I will leave further comment until then.
The first number of amendments in this grouping, amendments Nos. 16, 17, 25, 26, 35, 36 and 55 are around the issue of reasonable opinion. These amendments would have the effect of deleting the words "as far as practicable". In regard to the latter, the words "as far as practicable" are taken directly from Article 40.3.3o of the Constitution, which states: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, in far as practicable, by its laws to defend and vindicate that right."
In relation to the amendment to change the definition of "reasonable opinion", section 7(1)(a)(ii) provides that a termination can only be carried out where the medical practitioners have formed an opinion described in the following terms, "in their reasonable opinion ... that risk can only be averted by carrying out the medical procedure". Section 7(1)(a)(ii) further provides the reasonable opinion must be "formed in good faith" and one "which has regard to the need to preserve unborn human life as far as practicable". These two requirements place further obligations on the medical practitioners before they arrive at a view that in their reasonable opinion the risk can only be averted by carrying out the medical procedure. These requirements and obligations are expressed in a language that follows very precisely the test laid down in the X case. That is why as part of the certification process where there is a real and substantial risk to a pregnant woman's life, doctors are required specifically to consider whether it is practicable to preserve the unborn human life.
The language put forward in the amendments is not expressed in the terms required by Article 40.3.3o of the Constitution and as interpreted by the Supreme Court in the X case and could have unintended consequences. However, in practical terms, the Bill, as currently drafted, places a clear obligation on medical practitioners to ascertain whether it is possible to deliver the unborn, or indeed take other measures, that would enable the foetus to be brought to the point of viability before the pregnancy was ended in order to safe the mother's life. For those reasons I cannot accept the amendments proposed.
I will deal with the second theme, that of viability, in this group of amendments under amendments Nos. 20, 22, 27, 28 and 41. Again as I pointed out previously, the Bill makes reference to a medical practitioner's reasonable opinion in this regard, which places a statutory duty on each medical practitioner required to form an opinion for the purposes of the legislation to have regard to the need to preserve unborn human life as far as practicable. This imposes a clear duty on medical practitioners to make every effort to preserve the life of a foetus. Not to do so would mean a medical practitioner would be in breach of the proposed legislation and subject to its penalties.
The purpose of the legislation is not to regulate obstetric procedures, which do not constitute termination of pregnancy, or to dictate practice of obstetrics. Standard medical practice will provide appropriate mechanisms for assessments of both the woman and the unborn and it would not be appropriate to include this, or other details of medical treatments, in legislation. Therefore, I will not and cannot accept the amendments proposed.
On some of the comments made earlier today, to which Senator Healy Eames alluded again, on the issue of pain, I have talked to a number of experts today, including my chief medical officer, and the thalamus which is a very important part in terms of pain experience, does not really develop until the 21st week. As we mentioned, none of the techniques described by Senator Walsh is used. Medical induction of labour and delivery is what is used after the 12th week. There is no instrumental termination used after 12 weeks. It would be considered to be far too dangerous for the life of the woman.
Consequently, while the Senator has some information indicating some possibilities of pain being experienced by a foetus of 17 weeks plus, I would be grateful to have sight of that research and to hand it on to the medical people concerned. As I stated earlier, at all times, care and compassion in respect of safety and as much pain control as possible is what is used in all procedures in hospitals from the point of view of all patients.
On the pain issue, I am grateful for the Minister's answer. I will be happy to supply the Minister with the information I have and will try to do so this evening in the course of the debate but simply need to get a break to obtain it. In a final question on the pain issue, can instrumental procedures be used after 12 weeks?
I also have three other amendments in this grouping, namely, amendments Nos. 22, 28 and 41, all of which relate to the same issue. I must make a small correction to amendment No. 22, which should read as:
In page 9, between lines 21 and 22, to insert the following:
“(5) Where the medical practitioner believes in his or her reasonable opinion that the unborn child is capable of surviving outside the womb with appropriate medical support, that that medical practitioner, where practicable, shall deliver the unborn and take all necessary measures to sustain the life of the born infant.".
This is instead of the wording, "sustain the life of the unborn infant".
Is the Senator proposing to make a change to the amendment?
Yes, if I could just-----
The Senator cannot do it on this Stage but must do so on Report Stage.
Okay, I will leave it as it is, because the meaning is fully clear. In other words, the word "unborn" becomes the word "born".
As for the effect of this amendment, there is no requirement in the Bill as it stands to place a duty on medical professionals to sustain the life of the baby where that is possible. I acknowledge Members have received assurances from the Minister but again, once the Minister, Deputy Reilly, has left office - no one stays here forever - such assurances from him will no longer apply. However, the wording of the Bill will remain in the Act. The refusal to accept this amendment during the Dáil debate is extremely troubling and is completely at odds with the Minister's comments regarding delivering the baby at the cusp of viability. One must remember that as currently presented, this Bill does not render lawful the delivery of a live baby. I plead with the Minister to take on board this amendment, as a failure to include it-----
Does Senator Keane wish to raise a point of order?
I have a question.
I cannot take a question.
Okay, I have a statement.
I cannot take a statement either. Does the Senator have a point of order?
What doctor would not leave a child alive at this point?
Will the Senator, please, resume her seat?
It is amazing.
It is crazy.
I agree, but the point is it is not in the Bill.
There are medical ethics.
Senator Fidelma Healy Eames to continue, without interruption.
The entire point is it is not contained in the Bill. Were this provision included in the Bill, it would make all the difference. The Bill as it stands does not render lawful the delivery of a live baby. I understand the concept of good faith and I understand that each obstetrician who came before the joint committee stated his or her duty was to preserve life. While I accept that, this should be included in the Bill. I plead with the Minister to take on board this amendment, as a failure to include it will show conclusively the Bill is life-ending and not life-saving. The Bill is entitled the Protection of Life During Pregnancy Bill and Members have a great opportunity to show the Bill is life saving and not life ending simply by including these words. I again plead with the Minister to take that on board.
I thank the Minister for getting in touch with his chief medical officer and whoever else on the question of foetal pain. I certainly anticipate there will be further debate on this subject on Report Stage. It is noteworthy that the issue did not arise until the Seanad raised it. It also is noteworthy that despite being the subject of amendments of which the Minister and his team would have been aware, the information was not available to the Minister this morning. While I thank him for going to the trouble of finding out what he did, I do not believe it disposes fully of all the issues because thus far, the Bill is silent as to what may happen or, more to the point, what may not happen to a child who has arrived at the state of viability.
I seek clarification from the Minister on an issue that has confused me but perhaps can be cleared up. I believe the Minister himself mentioned this in the Dáil in the context of a section 9 abortion or procedure when he stated there would be no question of waiting until the child could be delivered safely because he would not have it on his conscience that a person with suicidal ideation might endanger her life. As the Minister is leaving the Chamber and will not be present to respond to it, I will postpone this question until he returns.
My amendments in this group are amendments Nos. 17, 26, 36 and 55, which provide a definition of reasonable opinion, "being an opinion which respects the equal right to life of the unborn, and which has regard to the duty to deliver the viable unborn alive where practicable". The Minister stated the words "as far as practicable" are taken directly from Article 40.3.3o. That much is true but they are taken in a different context and in a different way from which they are used in Article 40.3.3o, because what must be done, as far as practicable in this Bill, is to have "regard to the need to preserve unborn human life", whereas in Article 40.3.3o, it is "to defend and vindicate" that life, as far as practicable. The express language of Article 40.3.3o is absent from the current Bill, which instead defines reasonable opinion as including "regard to the need to preserve unborn life as far as practicable". There is no mention whatsoever of the equal right to life of the unborn or of respecting, vindicating or defending that right. The Bill merely requires that regard be had to the need to preserve unborn human life, a need immediately qualified through the addition of the clause "as far as practicable", yet the constitutional guarantee in Article 40.3.3o that laws respect the right to life of the unborn is not qualified in any way. Furthermore, a need to "preserve... life" is a much more amorphous and much less legally established concept than a full-blown constitutional right to life. Consequently, the Bill grants a lesser level of respect to the equal right to life of the unborn than does Article 40.3.3o, which I believe to be a significant question hanging over this Bill from the perspective of the Constitution.
There is a further equivocation in the Bill regarding the equal right to life of the unborn in that the aforementioned reasonable opinion is not a reasonable opportunity at all, because it merely requires an opinion formed in good faith. Consequently, the Bill requires a significantly lower standard of mental element than that of an objective reasonable opinion, which in turn greatly undermines the supposed safeguards offered by section 9, as well as the criminal provisions of section 22. Since the medical opinion need not take heed of relevant medical evidence in ordinary practice, the good faith test also is out of touch with the development of the tort of medical negligence from Dunne v. National Maternity Hospital onwards, as I noted previously. It should also be noted that the entirety of the medical evaluation adheres to a good faith standard, including certification of a real and substantial risk to the woman's life. Further, and perhaps crucially, whether due regard is had to the need to preserve unborn human life as far as practicable is, according to the Bill, entirely a matter of subjective good faith. I cannot discern how anyone could reconcile the Bill's provisions with the constitutional duty for laws to respect the equal right to life of the unborn, a duty that is framed in a categorically objective manner. The subjective good faith standard pervading the Bill's provisions for medical assessments reflects the subjective grounds of suicidal ideation upon which the Bill provides for abortion. Consequently, in the complete absence of empirical evidence that abortion makes women less suicidal, this Bill does not require that a medical opinion sanctioning an abortion on this very basis be based on anything more concrete than a subjective opinion.
Further, the good faith test does not incorporate a duty to deliver a viable child from the womb alive. In other words, a reasonable opinion required, as in the Bill, imposes no duty to ensure that where practicable, a viable child should be delivered alive, rather than aborted. This will not really affect the operation of sections 7 and 8, which pertain to necessary interventions in cases of physical illness and a mother in that position will want everything done for herself and for her child.
In practice, and as a matter of law, the Bill permits a section 9 medical procedure to effortlessly subordinate the need to preserve unborn human life to the statutory right to abort that child even where the preservation of unborn life is achievable as a matter of routine medical practice. It is extremely difficult to equate all this with a guarantee to respect the equal right to life of the unborn, especially since it may, in fact, incentivise a medical practitioner to opt for an abortion instead of an early inducement so as to avoid questions over civil liability on foot of the disablement of a child, as we stated earlier.
Sections 7 to 9, inclusive, and 13 continue to permit a termination of pregnancy to be carried out up to and including delivery and in a manner that ends the life of the unborn at a stage in its development where, if that termination was to be carried out otherwise, the unborn would be capable of surviving. Reasonable opinion can be anything but reasonable under this Bill provided it is formed in good faith. This Bill does not leave the normal meaning of reasonable in place. It tells us what a reasonable opinion is and it does not include the word "reasonable". The courts will have to go on whether it is in good faith and as I stated, it is extremely difficult to prove mala fides.
The definition of "reasonable opinion" in sections 7 to 9, inclusive, and 13, involves giving a purely artificial meaning to the term and provides for a subjective rather an objective test. The current definition will make the reasonableness or otherwise of the opinion completely irrelevant, and this surprising result is achieved by giving the term a definition that has nothing to do with the ordinary meaning of the word "reasonable".
This has major implications for the operation of section 7 - risk of loss of life from physical illness - section 8 but, particularly, sections 9 and 13, as it governs the second opinion that must be formed in those sections, that is, that the risk of the loss of life can only be averted by carrying out that medical procedure - that is the second opinion in the sense of the second issue to be decided. It is a classic example of the Legislature turning the meaning of ordinary words on their head and case law confirms the right of the Legislature to do just that. By juxtaposing the word "reasonable" with the word "opinion" in the term defined, the unsuspecting reader is seduced into believing that the term "reasonable opinion" must be based on reasonable grounds but nothing could be further from the truth. On a close examination of the precise wording of the definition, it becomes clear that the opinion in question, that is, that the risk of loss of the woman's life "can only be averted by carrying out the medical procedure", must only be formed in good faith - an entirely subjective test. There is no onus whatsoever on the medical practitioner, when forming his or her reasonable opinion, to base that opinion on reasonable grounds.
On Report Stage in the Dáil the Minister stated:
To be clear, it will only allow a pregnancy to be terminated in circumstances where it is expected that the woman will otherwise die. It has been suggested that the legislation should include a clear provision to that effect and also an explicit reference to viability. I reassure all Deputies that, as currently drafted, the Bill prohibits the killing of a viable foetus.
As previously stated, the Bill makes reference to a medical practitioner's reasonable opinion. This places a statutory duty on each medical practitioner required to form such an opinion for the purpose of legislation to have regard to the need to preserve unborn human life as far as practicable. This imposes a clear duty on medical practitioners to make every effort to preserve the life of a foetus that may be viable. The amendments to sections 7 to 9, inclusive, and 13 would express this in the body of the Bill. Sections 7 to 9, inclusive, are structured in such a way as to provide for a balancing of the rights of the unborn and those of a pregnant woman.
Against what the Minister stated, there is nothing in the Bill to support his contention that it, specifically, in the context of section 9 which is where the controversy is, prohibits the killing of a viable foetus. There is nothing in the Bill to support that contention.
The Minister supports his viewpoint with reference to reasonable opinion but there are a number of problems. First, as drafted, the Bill only protects those procedures that will end the life of the unborn.
Second, reasonable opinion requires that the relevant opinion, it should be remembered, a good-faith opinion, has regard to the need to preserve unborn human life as far as practicable, and that last clause is the crucial one. A woman who seeks a section 9 certification almost certainly does so on account of the child's existence, not simply because she is physiologically pregnant. As such a medical procedure that does not involve ending the life of the unborn, whether viable or otherwise, is not a procedure that averts the real and substantial risk to the woman's life by way of suicide and, in a double sense, it is not a procedure protected and clarified by the Bill. To be an efficacious and legally protected procedure under the Bill's provisions, it necessarily must involve the death of the unborn.
Third, all this helps make clear how redundant the phrase, "have regard to the need to preserve unborn human life as far as practicable", really is. It adds nothing of substance to the Bill. One must remember it is at the certification stage that such is required; it does not affect what the practitioner does. The practitioner is protected in carrying out a procedure that ends the life of the child. There is no good reason to refuse an amendment clarifying that a viable child, under section 9, will not be aborted.
I listened to what the Minister, Deputy Reilly had to say with regard to the wording of the amendment. I am still not persuaded by the explanation he has given. I acknowledge that he has gone to check some of the points that were made here, which is useful.
That was useful.
I am surprised that these issues were not anticipated and that he had to go outside his Department to get that information.
That is why there is the Seanad.
That is why there are checks and balances.
I accept fully the point he made about the procedures in Ireland and that the ones I described are not applying here. I accept that current medical practice in Ireland is not something in this area with which I would have difficulty.
My problem is that by not defining medical procedures, the Minister is wide open to those procedures falling in line with those that are happening internationally. I have checked, because of Senator Colm Burke's comments earlier, with three different medical professionals who told me everything I have described is, in fact, in practice in different parts of the world, particularly in the United States. One of them stated, "Jim, you do not have to go further than looking back at the Gosnell trial". I do not anticipate that will happen here but by not defining medical procedures, we, as a Legislature, are not stating what is allowed and what is not allowed. That is my fundamental objection to it.
I have nothing further to add.
I move amendment No. 19:
In page 9, line 4, after "obstetrician" to insert "or a medical practitioner of another relevant speciality, not being a psychiatrist,".
I discussed this issue with Senator Crown. The Bill provides, in the case of section 7 procedures, that the procedure must be carried out by an obstetrician at an appropriate institution. I understand that at an earlier stage, the heads of Bill stage, the original proposal was that it would be capable of being carried out by a registered medical practitioner at an appropriate location. Perhaps the Minister of State can clarify that for me and maybe, for the benefit of the House, explain the reason for the change.
The Senator is moving away from amendment No. 19, which is specific.
I am not. Amendment No. 19 is all about the question of whether we ought to widen the category of persons permitted to carry out procedures under section 7 to include non-obstetricians such as oncologists. Currently any relevant medical practitioner acting in accordance with current medical guidelines is protected by the law from criminal sanction under sections 58 and 59 of the Offences against the Person Act. Under this Bill, if enacted, will he or she, if not an obstetrician, be vulnerable, through some unintended lacuna, to possible criminal prosecution under section 22? I very much hope not. I ask the Minister of State to address that issue.
Amendment No. 19 proposes widening the list of medical practitioners permitted to carry the medical procedure at issue in the legislation. However, other than in an emergency, a termination of pregnancy should be carried out only by an obstetrician or gynaecologist. This strict provision is to ensure that the procedure will be carried out only by highly skilled, qualified and relevant medical personnel in order to secure the best possible care for the woman whose life is at risk and for the unborn. For that reason, I cannot accept the Senator's amendment.
I am sure the House is aware that the restriction to an obstetrician or gynaecologist does not, for very good reasons, apply to section 8 in respect of emergencies. That is clear. I believed the Senator was positing an emergency at some point in his contribution but perhaps he was not.
The Senator is incorrect if he believes that, in an emergency, the ability to carry out the procedure would be restricted to an obstetrician and gynaecologist. Section 8 provides that the procedure should be carried out by medical practitioner.
Oncologists, respiratory physicians and others who may be involved in the care of the pregnant woman were mentioned. Nobody should be concerned about any constraint on those professional people carrying out their function in a professional way, as they always have done. There is no suggestion that they would be constrained. The provision concerns the person who carries out the procedure. There is no restriction, nor should there or could there be any restriction, on the professional people involved in the care and treatment of a pregnant woman, such as an oncologist, respiratory physician or heart specialist.
Sections 7 and 9 provide for the involvement of the second medical practitioner in the certification process. I refer to somebody with a relevant specialty. If an issue arises, perhaps relating to cancer, the oncologist might well be the second medical practitioner with the relevant specialty. It could be a cardiologist or one of any number of professional people involved in the certification process. They would be required to certify jointly and be present and involved.
The provision in question is concerned with the actual carrying out of the procedure. It makes it lawful. It is appropriate that the procedure be carried out by a highly skilled medical practitioner. I am not saying that medical practitioners in general are not highly skilled, but that they have specific and different skills.
Notwithstanding what was contained in the heads of the Bill and earlier drafts, the Government is clear that the appropriate provision in the legislation should be that the procedure itself should be carried out by an obstetrician. For that reason, I respectfully say that we do not propose to accept the amendment.
I thank the Minister of State for his answer. I will reflect on it and study it carefully. The medical procedure is defined as including the prescribing by a medical practitioner of any drug or medical treatment. As was pointed out earlier, the legislation does not specifically mention abortion. It provides for the lawfulness of carrying out a medical procedure, including the provision of a drug which is the type of thing that I imagine an oncologist might do when treating a pregnant woman with cancer. Where that might happen and where the child's life might be ended as a result of, or in the course of it, that would be lawful but that is where an obstetrician does it.
The concern remains. I recognise that if there were a negative consequence for obstetricians, it would be unintended. However, I ask the Minister of State to reflect further on it to ensure that there is no unintended exclusion of the necessary medical care that we would all expect an obstetrician and other professionals to give in circumstances which have nothing to do with procuring an abortion.
Amendment No. 20 has already been discussed with amendment No. 16. Is the amendment being pressed?
No. I will resubmit it on Report Stage.
Amendments Nos. 21, 39, 50 to 52, inclusive, and 71 are related and may be discussed together. Amendment No. 52 is an alternative to amendment No. 51. Does any one wish to speak to those amendments?
We can discuss the other amendments, that is, Nos. 39, 50 to 52, inclusive, and 71, when we get to them.
Amendment No. 22 not moved.
Amendments Nos. 23, 29 and 42 are related and may be discussed together.
I move amendment No. 23:
In page 9, between lines 21 and 22, to insert the following:
“(5) No procedure as defined herein where the result of such procedure is the delivery of a viable infant shall expose any medical practitioner to civil or criminal liability for negligence.”.
Amendments Nos. 23, 29 and 42 all relate to the issue of doctors' criminal or civil liability. On the basis that medical practitioners are taking this on board and that they will in good faith carry out all procedures where a viable infant is delivered in the course of such a procedure, I believe it is absolutely necessary that those doctors are indemnified against any criminal or civil proceedings against them. They will be saving two lives, rather than one. The risk - even if it is very small - of them being exposed to any liability in this regard is unacceptable. We want doctors to be able to carry out these procedures in the full knowledge that they will not be at risk of liability. There should be no ambiguity in the Bill whatsoever as to whether a doctor who saves both mother and child is exposed to liability.
Will doctors be indemnified against any criminal or civil proceedings against them in the context of such a procedure? We live in the real world. If a doctor is not indemnified against liability it may be easier for him or her if the baby died. We do not want that situation to occur because it would make the whole situation fraught. We want doctors to be able to practice in good faith under the oath that most doctors have taken, to do not harm. I look forward to the Minister of State's response.
The purpose of the Bill is not to regulate obstetric procedures, such as the delivery of a viable premature infant, or to change the law of negligence in relation to the practice of obstetrics. I cannot accept the proposed amendments. However, I would observe that normal cover for medical practitioners, through their professional regulatory mechanisms, would apply in such situations.
I am not prepared to proceed other than on the basis that medical professionals will act professionally, in accordance with the best professional standards and in accordance with this legislation. I am not remotely prepared to take as any kind of a working assumption the proposition that they may take the view that it would "be easier for them if the baby dies". I am not prepared to proceed on the basis of that presumption.
I do not want to proceed in any other way either, but the Minister of State mentioned normal medical indemnity. Are the doctors indemnified or not, yes or no?
That question is not germane to this legislation. Most doctors are covered by professional medical insurance. I presume they all have it, so that is the position. I do not know whether the Senator is seeking a broader discussion on medical negligence and professional medical cover but it is not germane to this legislation. It is a general topic of interest but it is not a matter that comes up for decision in this legislation.
On the contrary, it is very germane to this legislation. If the medics are not covered, then it creates a situation where liability occurs. Liability insurance is costly. While the State may pick up the tab for that cover, what we have found in other jurisdictions is clear. Medics are softly pressurised - I hope we will get to the conscience stage because it will come up also - by people who come from a different disposition. Within the Department and within the HSE we have people who are ideologically wedded to the idea of being pro-choice - that the woman should have a choice to determine if the baby lives or dies. Earlier today, I have spoken to people in the medical profession about this. I am concerned that unless people are reassured, I do not want to see a situation where they will either feel real or imagined pressure on them to ensure that the outcome is one which totally safeguards their position. Under this Bill it is clear that if the baby's life is ended, they are absolutely in the clear. I seriously question anything that leaves ambiguity surrounding the fact that the baby who may be seriously disabled is not delivered, and that not all attempts are made to save that baby's life.
I am not inventing these situations; doctors have put them to me. We are going into a whole new area here.
Doctors may deliver babies earlier than they should because of what we say is a real and substantial risk to the life of a mother. The baby is not looking to be born at that point. We may create a situation where there is injury. There is at least a danger that an obstetrician who chooses to terminate a pregnancy by a premature delivery of the unborn child rather than by a procedure which ends the life of that child will not enjoy the protection of the Bill. That is what is being said to me. If that is so, we could end up with an invidious situation where it might be safer for the doctor if the child died. God forbid that this would be the case. If the child survives and suffers injury as a result of premature delivery, the lawfulness of the procedure cannot be determined by reference to the Bill. That is the issue I want the Minister to address.
This is a time when litigation on matters of medical negligence and the cost of insuring against it is a growing cause of concern for doctors, particularly those in the field of obstetrics. It is important to ensure the Bill does not make this situation any worse. We say we are interested in providing clarity to doctors. If we are truly interested in providing them with clarity, we should ensure that any doubt on this point is removed. I ask the Minister to take what I have just said on board and address the point.
It seems that this will be a different field in medical negligence involving insurance and hospital and doctor liability. If blanket cover was provided for everything on medical negligence, it might do a disservice to all persons involved. The aspect of it is outside the remit of the Bill. I ask the Minister to correct me if I am wrong. If blanket immunity from liability is provided, some situations will be missed. How can one provide for every situation? The Bill is about ensuring doctors have more authority and confidence in what they are doing and are covered legally.
The Bill sets out clearly the procedures doctors must follow in sections 7 to 9, inclusive. The State Claims Agency deals with claims of medical negligence. The insurance is there for all of those involved who are working for the HSE or maternity hospitals. There is an insurance scheme in place. It is not just one person who is involved in the management of a patient. There are consultants, registrars, junior doctors, nursing staff, support staff and anaesthetists. It is a team effort. Everyone on the team intends at all times to do their best for the patients. There is no way the Bill exposes people to any greater degree of liability. It is important that a false impression is not given that the Bill exposes doctors to greater liability. Their job at all times is to do the best for a patient. Doctors will only arrive at a decision on a procedure under sections 7 to 9, inclusive, in a case involving protecting and saving the life of the mother.
There is a real irony here. If I heard it once, I must have heard it 100 times from Government spokespersons. I cannot remember if the Minister of State, Deputy White, said it, but I would be surprised if he did not. Part of the background to all this was a criticism by the late Mr. Justice Niall McCarthy that we had failed to legislate. The criticism was made in the X case. Now, the Government is failing to legislate again. It is putting in place legislation which changes the pitch. It establishes the tone and also the rules while omitting the question of what a doctor ought to do in circumstances where a child is at viability and may be saved. The certifying psychiatrist and obstetrician, who may or may not be the person required to carry out the procedure, are only required to have regard to the need to preserve the life of the child as far as practicable. They have to have regard to that while making a decision on certification in subjective good faith. The person who carries out the procedure is governed by the law which says it shall be lawful to carry out a medical procedure in the course of which, or as a result of which, an unborn human life is ended. The silence on giving comfort to a doctor that he or she might lawfully carry out a procedure where the life of the child might not be ended is just as bad as any failure to legislate.
In the context of legislation, we have a lacuna. In one way, the lacuna serves not to protect the doctor who might want to act. The failure to impose a duty to protect the child who is at viability gives comfort to the type of doctor, who may exist, who may have an ideology or to a careless doctor of the type who ends up in front of the fitness to practise committee of the Medical Council. The Minister said earlier that he would not proceed on the basis that doctors would not act well. The whole point of law is to ensure that one does not depend on the good intentions and best practice of 100% of any population, be it the citizenry, medics or legal professionals. We must, therefore, ask the Minister to proceed on the basis that there might be people who do not have the best interests of unborn children at heart. They exist and might be medically qualified and within the zone of applicability of the legislation. I submit that there is a very serious failure to legislate on the lacuna I have mentioned.
I agree with Senator Colm Burke. We heard that the medical profession has to date done everything to save the lives of both patients in these scenarios. Above all, they seek to do no harm. However, we are changing the culture of the medical profession. We are asking them now to kill the unborn. It is a significant cultural change and it has taken place in every single country where abortion has been introduced.
I am somewhat persuaded by Senator Keane's point that giving carte blanche indemnity to everybody is not a good principle, although we are probably doing it. We will continue to have for a decade and perhaps beyond significant pressures on public expenditure, in particular in the health area. Hospitals are under pressure now and will be under increased pressure. That creates a situation in which people will not wish to incur liability claims. That leads me to one conclusion with regard to the application of the Bill and it worries me, in particular when the culture of the medical profession is being changed.
The Bill gives the mother priority over the baby's life. The baby is treated as something that can become a medical procedure if the baby becomes a danger to the mother. In sections 7 to 9, inclusive, only the mother's life is protected. The baby's life is not. Members of the medical profession have raised concerns with me. I have been informed by obstetricians that it is the area of medicine in which insurance premiums are highest. There is a high risk.
They do not pay insurance premiums unless they are in private practice.
This is what they are saying.
Do not be such a know-all.
Is Senator Ó Domhnaill afraid of the facts?
The Minister of State will answer all the questions. Please llow Senator Brian Ó Domhnaill to continue, without interruption.
If it is covered by public insurance, the taxpayer is exposed; therefore, it is even worse. The Members opposite cannot have it both ways.
No, that is not the case. Will the Senator get his facts right?
We know many of these consultants operate private practices in public hospitals and have their own private insurance in addition to any public cover they have in public hospitals.
According to obstetricians who require insurance to cover the work they carry out, they fear, with the legislation as drafted, that in so far as practicable and possible if they save the life of the child, it could result in their insurance premia being increased. I expect the Minister will give a guarantee that this will not be the case. If so, it should be put on the record of the House and ensure the myth is put to bed. Otherwise, if such a guarantee cannot be given tonight, we know it is not a myth. Obstetricians, who are doing this country some service, deserve to know if new legislation which introduces the abortion of children will mean their insurance premia will be increased because they will be forced to take certain actions against their better judgment. That is what Senator Healy Eames is trying to ascertain.
On a point of order, the first casualty in war is language. We are not talking about the abortion of children.
This is abortion. One can dress it up whatever way one likes but it is the abortion of vulnerable and innocent children.
The previous comment reaffirms my earlier point that there are a small number of Senators who are entitled to their view but who believe under no circumstances should a termination be permissible, even if a woman’s life is in danger.
That is not true.
Who said that?
That is my interpretation of what some Senators have said.
On a point of order, that is very unfair and disingenuous. Will the Senator point out where I have said that?
It is through the use of the Senator's language.
It is a point of order. I am being quoted out of context and it is very disingenuous of Senator Cullinane.
Will the Senator, please, resume his seat?
That is my interpretation from the contributions I have heard.
On a point of order, I am the Member who tabled the amendments. I accept under sections 7 and 8 that there can be an intervention.
The Senator has spoken on the issue already. Senator David Cullinane to continue, without interruption.
Senator Cullinane has misrepresented me. That is the second time he has done that. It is very disingenuous and is absolutely out of order.
It is not disingenuous at all.
There is a lot of smoke and mirrors. Members are referring to lacunae, creating the impression there is some hidden agenda in the Bill with no legal protections for medical practitioners. I have so far listened for three hours to the debate on this issue. The Minister has said umpteen times that there is no hidden agenda. The Bill is explicitly clear. When dealing with medical procedures lawful under the legislation, it states clearly, “it shall be lawful”. It cannot be any clearer than that.
When Members, however, come in with all sorts of other arguments about lacunae and hidden agendas, using inflammatory language, I then question their motives. They cannot in all seriousness argue there are no legal protections for medical professionals in this Bill when everyone knows that is what the Bill is about. It only formalises existing law. That has already been said 1 million times in this debate. We are going around the houses over and over again. How many times have we heard the same argument from the same people? It is about time we moved on to section 9 which many Members want to debate.
Someone said we are trying to change the culture. No one is trying to change the culture. This Bill-----
We are on amendments Nos. 23, 29 and 42.
I am responding to some of the comments made.
There is no need for the Senator to respond to them. The Minister will respond to them.
One policy in the North and another in the South. That is Sinn Féin all over, recognising the Border.
It is better than having two groups in the one party, like the one opposite.
At least we have freedom of conscience.
Is that what it is?
As Senator Keane said, if one looks at the way these amendments are worded, they constitute a blanket exclusion of civil or criminal liability for negligence in respect of circumstances where a viable infant is delivered. It is an extraordinarily severe and strong blanket exclusion of liability that one could conceivably not adopt. Adopting this amendment would also exclude liability in circumstances where there was negligence. The amendment is unstatable and unsustainable.
Senator Cullinane is correct that we cannot legislate for every exigency of the clinical environment. All we can do as legislators in good faith is set a legislative set of standards, principles and requirements. It is not even a question of me proposing we should rely on the professionalism of doctors. We have to rely on it as we always have. They do not let us down. They have standards. I am not prepared to proceed otherwise than on the basis that standards will be high and upheld.
I disagree with Senator Mullen’s test that he is proposing which is essentially the opposite, that we have to make a presumption that bad things will be done. He said a doctor may have an ideology. That is the basis upon which the Seanad is being asked to deal with this.
I did not say that.
Those are the Senator’s words.
It is all about just one in 1,000 children dying.
It is not a good idea to support the kind of presumption inherent in this proposal that doctors would act otherwise than in accordance with best professional standards.
The Minister of State is so simplistic.
These are standards upon which we rely and are upheld by the professional colleges. They have been upheld in a way that gives us good reason to rely on them over many generations.
At the risk of inflaming some of the points made again and again regarding the overall thrust of this Bill, I must say it is manifestly untrue to state it gives the mother priority over the baby and that only the mother's life is protected.
I spoke on this issue in this Chamber yesterday. I will not put it in quite the same terms again for fear of offending people but I will state that nobody who had read this Bill could possibly come up with such a conclusion.
The only reason I am contributing is to record what I indicated in my Second Stage contribution, namely, that I fully support 90% of the legislation. I have absolutely no difficulty with section 7. I have every trust in the medical profession in this country and believe it has acted in the best interests of the mother and the unborn baby in distressed situations. I am aware, like everybody else, that sadly the baby's life has been lost in situations in hospitals in which medical personnel have been faced with the awful dilemma of deciding life-and-death issues. I would never wish to be in that situation. This Bill, in common with the 2002 legislation, gives the legal clarity the medical profession has sought. I hope this is the end of the argument in respect of the seeking of any further clarification by the medical profession, that it will just get on with it and incorporate the legislation we are passing here, including this section, into its own ethical code, and that the Medical Council will act accordingly and will be satisfied with the decision.
I concur with Senator Mooney. This section gives certainty. Let us be quite clear about this. I am voting against the Bill only because I have an issue with section 9. As far as I recall, section 7 or something very similar relating to the protection of the pregnant woman's treatment in hospital was in the Bill introduced in 2002 by the former Minister Micheál Martin. Let us not misrepresent anyone in this regard. Most of this Bill is very satisfactory. It gives certainty and protection, which is what any reasonable person wants. As a parent, that is what I would expect.
Some people think that if one votes against this Bill, one is voting against all sections. That is not true. One has no choice. If one disagrees with a full section, unfortunately, one must in conscience vote against the Bill. One cannot vote against each section. When we come to section 9, we can discuss our reservations about it, which I have. Other than that, I know the intentions of the Minister and the Department of Health, in which I served for a number of years. I know the feeling that exists with regard to this particular situation. There might be a difference of opinion in respect of sections and I respect my colleagues' opinions. Women will feel far more secure when section 7 is made law.
We all want to get onto section 9. That is the good news. In response to Senator Cullinane, who has brought the matter up twice, none of us ever wants to deny a woman in this country who is physically in trouble and whose life is at risk treatment that will save her life.
Some people do. The Senator may not.
This morning we discussed foetal pain, of which I was not aware and on which I will not dwell because I am slightly out of order. We have found that Senator Healy Eames has proof regarding foetal pain and the Minister for Health wants to see that evidence and consider it over the weekend. If this is all that comes out of this morning's deliberations - I apologise and hope we will get on to section 9 now - when the Minister reads that evidence, he will want to consider it and bring it to Report Stage.
I thank Senator Mary Ann O'Brien and echo what she has just said. Like her, I fully support, for the avoidance of doubt, the protections that sections 7 and 8 seek to confer. The issue has always been that if the absence of legal clarity up to now means legislation is needed to reassure doctors that what they are doing is protected, is that not as true where their actions unavoidably injure the child as it is where their actions take the life of the child? That is all that this is about and it is perfectly reasonable.
Does the Minister of State have anything to add?
I have nothing to add.
I again wish to record remarks similar to those I made on section 7. I fully support the contents of section 8.
Amendments Nos. 30, 34 and 40 are alternative and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 30:
In page 10, between lines 3 and 4, to insert the following:
"9. (1) Any pregnant woman who presents as suicidal at her general practitioner or at an accident and emergency department shall be entitled to a Care Pathway which shall comprise the following steps—
(a) a full psychiatric assessment and an assessment of capacity within two hours of presenting at her general practitioner or at an accident or emergency department,
(b) a suicide prevention algorithm shall be formulated by the psychiatrist to assess the need for hospital admission, day hospital care or care at home as appropriate,
(c) a full psycho-social assessment of her needs shall take place within 24 hours of presenting at her general practitioner or at an accident or emergency department,
(d) an integrated multi-disciplinary care plan for the woman will be formulated between the psychiatrist, an obstetrician (if she is already under the care of an
obstetrician), her general practitioner, a social worker, and her family,
(e) if the woman is still expressing suicidal ideation, she shall be entitled to focused therapy which, based on the evidence, should include dialectical behaviour
therapy, in her home if necessary,
(f) day hospital care, and/or pharmacological treatments will be concurrently made available within 24 hours of the request for same, depending on need,
(g) the psychiatrist shall evaluate the woman twice weekly during the crisis stage of her treatment and thereafter depending on the consideration of the psychiatrist and the perspective of the woman and her family, based on clinical need,
(h) thereafter the woman’s interdisciplinary care team will meet at least once in every 14 days to assess her progress.".
Section 9 is the crucial section, as everybody has said. It concerns the risk of loss of life through suicide. I want to correct matters because I may have been misunderstood earlier in respect of the way I presented my points. We wandered into the section on suicide by accident and came out of it. What I am saying is that everyone agrees - psychiatrists have clearly put it on record - that they are really good at assessing pregnant women at risk of suicide but that they are really poor at predicting suicide. In fact, up to 15% of women express suicidal feelings but may not go on to take their lives. Psychiatrists have been very clear that while they are skilled at identifying patients at high risk of suicide, even in the high-risk group, they are likely to predict incorrectly 97 times out of 100.
As there is no reliable body of evidence that access to abortion reduces suicide rates or improves women's mental health, it is not possible to develop clinical practice guidelines based on medical evidence to clarify where it is justifiable to certify a woman as eligible for abortion. The Oireachtas was informed that none of the three consultant perinatal psychiatrists in Ireland, in their collective experience of 40 years, had seen a woman for whom termination of pregnancy was the only suitable treatment. In the context of this, 113 psychiatrists produced a statement explaining and outlining their huge difficulty with the notion that abortion was a suitable treatment for suicidal feelings or intent. That is where this care pathway is coming from.
Before I look at the exact wording of the care pathway, I would like to share with the House an e-mail I received from a young woman only two days ago. She asked me to share this story with the House because she had an abortion for mental health reasons.
Here are her words:
I remember going into the theatre hoping that the [doctor] would ask me would I like to change my mind but he never did. Straight afterwards, not only was the life and soul of my child suctioned out of me but a crucial part of me had died as well.
I felt it [deeply]. It was a feeling that I could not shake off and hence I used prescription medications daily and weekend binge drinking to numb and block out the horror of killing my baby. I desperately tried to forget what I did and tried to convince myself that it was the best decision. I slowly [turned] from being a caring nurse into an impatient and sometimes cold and cynical nurse. I became withdrawn and depressed and at times I entertained suicidal thoughts after the abortion as this brought hope to me, because my life was not worth living, I was just existing. I worked extremely hard maybe 60 to 70 hours a week, a lot of night shifts. This has been the worst decision of my life.
I implore of you and your colleagues to appreciate your privileged position to be aware that your elected post has not been by chance and that you are in this role at this time and that the fate of the unborn is now in your hands and you are in a position of power to choose life or death.
This young woman clearly states the critical role of the doctor who at that moment might have been able to change her mind. She is also explaining that she is under incredible pressure. That is why this care pathway is so critical. I know many people have much to say on this issue.
Amendment No. 30 states:
In page 10, between lines 3 and 4, to insert the following:
"9. (1) Any pregnant woman who presents as suicidal at her general practitioner or at an accident and emergency department shall be entitled to a Care Pathway which shall comprise the following steps—
(a) a full psychiatric assessment and an assessment of capacity within two hours of presenting at her general practitioner or at an accident or emergency department,
(b) a suicide prevention algorithm shall be formulated by the psychiatrist to assess the need for hospital admission, day hospital care or care at home as appropriate,
(c) a full psycho-social assessment of her needs shall take place within 24 hours of presenting at her general practitioner or at an accident or emergency department,
(d) an integrated multi-disciplinary care plan for the woman will be formulated between the psychiatrist, an obstetrician (if she is already under the care of an obstetrician), her general practitioner, a social worker, and her family,
(e) if the woman is still expressing suicidal ideation, she shall be entitled to focused therapy which, based on the evidence, should include dialectical behaviour therapy, in her home if necessary,
(f) day hospital care, and/or pharmacological treatments will be concurrently made available within 24 hours of the request for same, depending on need,
(g) the psychiatrist shall evaluate the woman twice weekly during the crisis stage of her treatment and thereafter depending on the consideration of the psychiatrist and the perspective of the woman and her family, based on clinical need,
(h) thereafter the woman's interdisciplinary care team will meet at least once in every 14 days to assess her progress."
The underlying intention is to provide care for someone who is expressing suicidal feelings in pregnancy and is carrying another life. There is a great intention of providing the very best care for mother and child. The psychiatrists who have proposed this have requested that this be designed by the college of psychiatry. How could we wish against this? It is wholesome, holistic and caring. It proposes to give life every chance and mind the woman whose life may be at risk. I ask the Minister of State to strongly consider accepting the amendment on the basis of the previous testimony I have presented from just one young woman who had to have an abortion.
I am speaking on my amendment, No. 40. In tabling the amendment I was motivated by evidence from the United States where in several states abortion clinics have a legal obligation that a pregnant woman presenting herself for an abortion is shown a scan of the unborn baby prior to any procedure being carried out. I am grateful to Senator Ó Domhnaill who gave me a statistic based on evidence that in 90% of such cases, the pregnant woman changed her mind and the baby was saved. My sole motivation in drafting this amendment was in the hope that at the very latest stage of the process under which section 9 operates, a life could be saved and in fact the two lives could be saved.
However, I have further reflected and spoken to a large number of women because I believed women could give an insight into the matter. I have no wish nor was it ever my intention to inflict any further emotional or psychological pain on an already distressed mentally ill pregnant woman, who has gone through the legal processes, has been reviewed and assessed by a team of psychiatrists and an obstetrician, has arrived at the point of certification, and is at the institution where the procedure is to be carried out. I would not wish for one second to add in any way to the distress that is obviously felt. For that reason, I will more than likely withdraw the amendment. However, I wish to outline my reasons for drafting it in the first place.
This is obviously the central issue in the entire debate. Senator Healy Eames has spoken very eloquently and I will not speak for very long. I was particularly taken by Senator Mooney's proposed amendment and it is a matter for him as to whether he presses it.
Good care for a mother should always be and by definition has to be completely compatible with good care for her unborn child. Our understanding of caring based on everything we have heard and learned through this long process is that women are not well served by abortion. As we know from the famous but perhaps not sufficiently discussed Ferguson studies, abortion is not associated with any improved mental health outcomes for women and is associated with a low to moderate risk of negative mental health sequelae for women. That is not just in the case of women with prior mental health issues but it is a more general proposition.
During the committee hearings we heard and the Minister has pointed out that it would be impossible to do a specific study of women presenting as suicidal and requesting an abortion that would distinguish between those who were given it and those who were not. The drift of knowledge in this area is to associate abortion with negative rather than positive mental health outcomes. It would therefore seem entirely appropriate that, in the context of a caring protective engagement between any woman and her medical expert, guide and carer, the possibility of negative mental health outcomes associated with abortion would be canvassed in truth - that is called informed consent.
If, in that context and in an appropriate way some reflection on the reality of the unborn child were suggested, that would seem entirely compatible with good care for both the woman and the child. We need to bear in mind as we have been constantly told there is a constitutional architecture that refers to the equal right to life of the unborn and also bearing in mind what the legislation we are told requires which is the formation of a reasonable opinion that the risk to life brought about by the threat of suicide and suicidal ideation can only be averted by carrying out the medical procedure.
In an ideal world of the kind where there are only good doctors and pregnancy counsellors - we are being invited to believe there is such a world - no abortions would be carried out under section 9 because, by definition, one would not have to be a psychiatrist to conclude that abortion could not be the only means by which the risk of suicide could be averted in view of the fact that there would always be a possibility that the person involved, by an act of will, would opt against abortion. In that sense, it could always be truthfully stated that abortion could not be the only way to avert the risk. This would apply in the circumstances to which I refer in a way in which it would never apply to section 7 or section 8 procedures because there is an objective risk to life which could only be remediated by medical intervention.
We live in the real world and all know what section 9 means. We also know how difficult it is for psychiatrists to make decisions in this matter. There are no experts present but I heard Senator Gilroy's comments and respect them.
I have stated that I am not an expert.
I am giving the Senator credit, not criticising him.
Which is strange.
The Senator should not jump all over me. The joint committee heard from the experts and Professor Kevin Malone, a suicide prevention expert, was extremely concerned with regard to the impact this would have, not just on women but on young men, particularly in the context of their mental health. Approximately 113 psychiatrists signed a statement indicating that they believe they are being wrongly drawn into a process which they do not regard as medical. Dr. John Sheehan, a perinatal psychiatrist, stated that under the legislation, psychiatrists are being asked to be the gatekeepers and that he could not predict what would be the outcome in this regard.
The joint committee also heard from other psychiatrists such as Dr. Anthony McCarthy who did not provide any reassurances in respect of numbers, other than the fact that he thought there would be very few. Dr. McCarthy did not provide any understanding on this matter and he never highlighted any circumstances in which a psychiatrist might decline an abortion on the grounds of suicide. It must be remembered that one is always rightly supposed to believe someone who states that he or she is suicidal. We were never really provided with an explanation as to how we might extricate ourselves from that morass.
For all of those reasons, I welcome Senator Healy Eames's amendment. Amendment No. 34 in my name provides a much more abridged version of what is contained in amendment No. 30. The basic point I am seeking to make with the amendment is that the good-faith standard contained in section 9 is extremely subjective and does not confer a duty upon psychiatrists to make a genuinely reasonable attempt to avert the risk of suicide by methods other than abortion. As a result, amendment No. 34 proposes that an objectively reasonable attempt should be made to "avert the risk of suicide via psychiatric treatment and/or engaging the patient with psychotherapy or counselling services". At an earlier point and in another context, the Minister stated that there would be a possibility of delaying a procedure where a child is on the cusp of viability. It seems, therefore, that there ought to be time to do this.
I also know what was stated in this Chamber by Dr. Maria Cahill during the joint committee's hearings in respect of the judgment in the Cosma case. The argument Dr. Cahill put forward was not, in my view, effectively rebutted by the Minister for Justice and Equality. In its judgment relating to that case, the Supreme Court appeared to lay down a clarification on how the X-case test might be applied when a person presents as suicidal. None of the Cosma case requirements has been imported into the legislation before us.
As stated, amendment No. 34 refers to a reasonable attempt to "avert the risk of suicide via psychiatric treatment and-or engaging the patient with psychotherapy or counselling services" and in that context I recognise that every case turns on the facts relating to it and on the experience of the particular patient involved. The amendment also refers to the need for one of the medical practitioners involved to inform the woman of her "legal right to place her unborn for adoption after birth". During this debate, the idea of adoption has been almost completely neglected. This amendment, if accepted, would place no onerous duty - everyone should note those words carefully - on medical practitioners and nor would it place any kind of obstacle in the path of a woman. I am merely seeking to defend and vindicate the right to life of the unborn by conferring a duty upon medical practitioners to consider all non-lethal means of avoiding a risk to the woman's life via suicide and to inform her of her rights.
In political and ideological terms, this issue lies at the core of the legislation we are proposing to pass. We are dealing with the suicide clause and the Minister, his colleagues in the Government and the proponents of the Bill put forth a strong response regarding our obligation to introduce it. The Lower House was informed that if such a clause were not introduced, we would be overturning the entire Supreme Court judgment and that we cannot go down that particular route. Obviously, I do not have any of the legal qualifications of which the Minister of State is in possession. However, I am sure that he will acknowledge - as was acknowledged by all of the experts who came before the joint committee and former Supreme Court Justice Catherine McGuinness - that the Oireachtas is under no obligation to legislate as per the X case. The Supreme Court handed down a judgment in respect of that case but we are under no legal obligation to legislate in respect of it.
I am sure the Minister of State will also acknowledge that the Supreme Court judgment on the X case, as it relates to the suicide clause-----
We are dealing with amendments Nos. 30, 34 and 40.
Absolutely. Amendment No. 30 in the name of Senator Healy Eames would, if accepted, give rise to section 9, as constituted, being removed from the Bill. The Minister of State and, as we have been informed, all first year law students are aware that the Supreme Court's judgment in the X case in respect of suicide was uncontested and, therefore, places no binding in law upon us.
I can stand over the two arguments I have just offered. Notwithstanding that fact, however, and if it were so disposed, the House could pass the legislation minus the suicide clause and defend itself fully for doing so in the Supreme Court on the basis of all of the medical and psychiatric evidence from across the globe that has become available in the 20 years since that court made its decision in the X case. The evidence to which I refer clearly shows - without any doubt or possibility of contradiction - that abortion is absolutely not a treatment in respect of the threat of suicide and that it may actually pose a significant risk to the long-term health of women.
I will park that legal argument, because it is a matter for another day, and reflect on the proposal which has been put forward by Senator Healy Eames. The Minister of State knows better than I - this is becoming one of the mantras used in this debate - that the clause in question will only apply where abortion is the only possible treatment. It is quite clear that it is not the only treatment and during hearings of the joint committee held over two days, successive witnesses stated that it was not a treatment. As something of a political scholar, I am of the view that it is amazing that we are enshrining in law as a treatment something which we have been informed is not a treatment.
We are not stating that it is a treatment.
How does that stand up to scrutiny? We are in the process of seeking to enshrine in law abortion as an entitlement in circumstances where it is the only treatment. Senator Healy Eames has presented an alternative view. There were many interruptions earlier as Senators sought to jump ahead to discuss matters relating to section 9. Some appear to be inclined to the view that people on my side of the argument wish to ignore or dismiss the fact that suicide, suicidal ideation and psychological problems do not occur during pregnancy. Everybody fully acknowledges that pregnant women can be suicidal. Everybody also fully acknowledges the scale of the problem and the fact that a solution is required. What we are asking is that a solution based on evidence and fact and which is based on the premise that it will actually work should be put in place. We are outlining our deep concerns about the prospect that a so-called treatment which is not a treatment at all will be enshrined in Irish law.
It is not a treatment.
This matter was debated in the Lower House.
It is fair to say that I know where this proposal first entered the public debate. Almost immediately, Ministers and people on the medical side reacted and claimed why it could not happen. I am sorry that the Minister is not present. Yesterday, he and I clashed - purely in a political way and no more - when I raised some of the interventions of Dr. Anthony McCarthy. The Minister reminded me of how Dr. McCarthy had entirely dismissed this concept. However, I remind the Minister of what said gentlemen stated on "Morning Ireland". I say this in the context of what the Minister of State's party colleague, the Minister of State, Deputy Kathleen Lynch, charged us with this afternoon when she asked what price we were putting on women's health. I agree with her, as I hope the Minister of State present does. It should be priceless. As a Government, a House and a nation, we should provide whatever money and services are required to look after women.
When Dr. McCarthy was asked whether he was dismissive of this amendment because it was somehow wrong, he replied that he was dismissive of it because it could not work and was "totally impractical". He stated:
I would love it if it were practical [but] mental health services in Ireland ... have always been under-resourced and cut back. The idea that, around the country from Dublin to Caherciveen to Drumshanbo, there would the availability in emergency departments of psychiatrists who would do comprehensive suicide assessments within two hours ... [when] we don't have them on call at weekends.
Listening to that interview, I heard a gentleman clearly outline the problem facing us, that being, resources. I ask colleagues, particularly my party colleagues, to reflect on this issue. We claim that this suicide option - as I would call it, this abortion treatment for suicide - would only apply when all other prospective treatments had been exhausted. However, a leading psychiatrist who some like to claim supports some of their arguments has put it firmly on the record that most of the so-called supports are not available.
As I stated on Second Stage, our ambition for the women and mothers of this country must be high, honourable and proud and contemplate more than just abortion. Women in pregnancy who are suicidal need every possible support. We should be willing to break the bank fiscally at budget time to live up to our responsibilities. We should be able to provide evidence-based treatments that have a history of working globally. Instead, we are being asked to include in law a treatment or solution-----
It is not a treatment.
-----that will result in problems, not solve them. This is the issue on which we must reflect.
I look forward to the Minister of State's comments on the constitutional side. It will be a lengthy, weighty and substantive debate and I respect his opinion, as he has expressed it strongly in the Lower House.
There has been so much interest in this section because it is at the core of the ideology behind this debate. No perfect amendment has ever been produced in either House, but Senator Healy Eames has produced a view of how we can help the presumably many mothers who may have suicidal tendencies and ideation in pregnancy. She has proposed a formula that works.
We are being asked to inscribe in our law forever a scheme that witness after witness at our two sets of hearings claimed would not work. One can never base judgments purely on how many people write to one saying "Yes" or "No". One must do a little bit of deeper thinking. We all know that, to date, the majority of psychiatrists in Ireland who have let their opinions on this legislation be known have appealed to us not to enact section 9.
It is disingenuous to assert that people's support for this section is because of ideology. Many Senators who have different social and political ideologies on a range of issues support this section because it is concerned with the reality for women. This situation happens and we have a responsibility to deal with those women's circumstances.
I wish to provide some clarity about what the section does and what the amendment would do if accepted. I will seek clarity from the Minister of State, but my understanding is that this issue relates to the Supreme Court judgment, which was made on the back of a referendum in which a clear proposition was put to the people, who described what they wanted.
The Bill is also clear in that it refers to a real and substantial risk to the life of a mother, including suicide. Are we claiming that suicide is any less of a risk than any other medical illness that a woman may have, for example, a heart problem? This is the nub of the problem. We must also be deeply conscious of the impact our opinion has on the issue of suicide, as discussed by many Senators when they touched on it. The section formalises existing law on the basis of the Supreme Court judgment and a referendum expressing the will of the people.
Accepting the amendment would make the Bill unconstitutional, as we would be removing the provision covering a real risk to the life of a mother. The legislation would fail a constitutional test.
Not a single person inside or outside the Seanad believes that abortion is a suitable treatment for suicide. To claim otherwise is deeply offensive to Senators who support the section and the Bill. It is simply not true. A range of options are available to medical professionals if a woman presents as suicidal. To claim that we are offering abortion as the only solution is disingenuous and wrong.
Everyone accepts that suicide is an extremely emotive issue. In some way, we have all been touched by suicide. I doubt there is a person in this Chamber who does not know someone who has died from suicide, be it a relative, close friend or someone in the community. We have been brought down many culs-de-sac by the Bill's opponents. When I hear arguments to the effect that, if accepted, the Bill would open up the floodgates to abortion on demand, they devalue the issue of suicide as well as women. To propose that tens of thousands of women will queue up for obstetricians and psychiatrists and use the threat of suicide to get abortions is disingenuous. For this reason, I question the motives of some of those who have made this argument.
Many people have genuine concerns about the question of suicide.
I accept that. I have spoken to many people who support the Bill but have concerns about the suicide aspect of it. The core purpose of this Bill is the protection of women. While it also seeks to protect the unborn its main purpose is the protection of women where there is real and substantial risk to their lives. There are circumstances wherein a woman is suicidal and medical professionals have to make the judgment that a termination may be necessary. That is the reality which we as legislators must face up to. I propose to do so by supporting the Bill.
I must ask Senators to be brief.
I agree with those Senators who have spoken about suicide that it is a major problem in our society. Like others, I know of many families who have been devastated by it. We know from the hearings that approximately 1 in 500,000 women who are pregnant commit suicide. I agree that we should do everything we can to prevent suicides. We know also from the evidence that women who have had abortions are more prone to committing suicide. I am minded by the case in England of Emma Beck who was expecting twins and was coerced into having an abortion-----
There is no evidence of that.
-----and as a consequence committed suicide six months later. She left a note saying why she had committed suicide.
That is very uncommon.
It is not uncommon. It has happened in many instances.
The most eminent expert on suicide in Ireland, and recognised internationally, is Professor Kevin Malone. During the hearings, he told us that there was a real risk that legislating for the small number of women who commit suicide could have an adverse affect on women of child bearing age who are suicidal but not pregnant and also on young males. Professor Malone stated that two in 1 million women in pregnancy and 350 in 1 million young males will commit suicide. These are real and genuine concerns.
All of the psychiatrists who appeared before the hearings, some of whom were on the pro-choice side and others of whom were on the pro-life side, stated that there is no way of being accurate in predictions. We were informed that a study in Britain found that of 100 people predicted to commit suicide 97% did not. The expert advice is that any person who presents with suicidal ideation should be treated in accordance with best practice in the psychiatric field.
Another issue that arose towards the end of the debate, for which I am sure the Minister of State was present, is the presentation of women with suicidal intent who are mentally ill. A psychiatrist assesses the predicament of women in this regard. It was also stated by some experts that in their judgment the number of women who will present with suicidal intent and do not have a mental illness will be high and that because of our mental health legislation these women will be offered treatment but are entitled to refuse it. Therefore, the only treatment remaining, if the woman requests it, will be the abortion she seeks. This presents real dangers. The experts believe the largest number of cases will be in this area.
People have spoken about trusting women and so on. While many groups with different perspectives took part in the hearings, it is a pity more people did not engage in the process. One woman who has had an abortion was in touch with me yesterday to confirm what she said during the meeting in the AV room. The woman concerned is an Irish woman who was pregnant and in the British army. She was advised by people in the British forces who are senior to her that there would be adverse consequences of her not having an abortion and that it would affect her career. Her boyfriend, who is also in the army, was adamant that she should have the abortion. When she sought advice, she was told that she should in her interest seek the abortion on the grounds of being suicidal because it would fast-track her abortion.
During the hearings I quoted at length from Bernard Nathanson's book, Aborting America (Double Day 1979). It states that the supposed threat of suicide was the logical battering ram and, that "It was a question of finding a squad of complacent psychiatrists". Many people have written books on this issue. We also met with Women Hurt who told of the advice they had been given in order to secure an abortion. They told us that because of the pressure they were under, the distress they were in and their unwanted pregnancy they would have said or done anything to secure that abortion. I believe them. I have no reason not to. I also have no reason to disbelieve that there will be other women in the future who will find themselves in similar positions and will take the same route.
The late Dr. Anthony Clare who was pro-choice at the time of the 1992 referendum supported the 2002 amendment to the Constitution, having changed his opinion. He is on record as saying that suicide was the wedge through which liberal abortion regimes were introduced.
That is a misquotation of Dr. Clare.
That is what he said.
He said "mental health", not "suicide".
Assuming this legislation is passed, we will need to be able to analyse the detail of why abortions are carried out here. I am not happy with sections 15 and 20. The reports to be laid before the House will not give adequate information to evaluate the position. I hope when we reach those sections we will be able to change that situation.
I am opposed to this section. I have little difficulty with the remainder of the Bill. I am concerned that this legislation, because judicial activism intervenes and hard cases are presented by people who are pro-choice, as happened in the C and X cases and in other countries, will be broadened. Judges, because they come from a particular disposition, will take a view.
I am hugely concerned about the application of this section. I have concerns around the disposition of staff in the Department and HSE to the issue, many of whom do not share my perspective. Any honest assessment of the hearings would be that those who appeared before them were either pro-life or pro-choice. Therein lies a problem from the point of view of having objective, clear, independent evaluations. That worries me. Unfortunately, I predict this section will lead to a situation whereby abortion will be more liberally available here in the next five years than it has been for the past 30 years.
I would like first to speak to amendment No. 40, which I do not support.
I am taken by the very obvious note of compassion in the comments of the person who moved the amendment. It is commendable, which should be noted, as some of the other comments we have heard have not been as compassionate as they could have been.
With regard to amendment No. 34, I should read the following so there can be no misunderstanding, wilful or otherwise, of what I am saying. Section 9(1)(a)(ii) states: "in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure". The word "only" has been omitted from the debate throughout this day, and if that word is removed, one can interpret sections 7 and 8 to say anything one wishes. When we include the word "only" and read it in the context in which it is plainly written, it is quite clear that the intent of the Bill is limiting.
There are very few women who die by suicide while pregnant, with studies showing two in three years in this country. I believe - Senator Crown may confirm this - that this is the same number that have died from cancer in the same time. It is a very rare occurrence, with one in every 500,000 being the rate in the UK. However, the fact that it is rare does not mean it does not exist. We have heard the soundbite that abortion is not a treatment for suicide. Whoever said this - I do not know who said it-----
I see. Now there is a change, when the soundbite does not work.
It was said-----
I have heard it said by Senator Bradford; he said it clearly. Many people on this side of the House said "Abortion is not a treatment for suicide." It has been said a hundred times. Who-----
It was said at the health hearings by psychiatrists.
Name a person, or a consultant psychiatrist, who said that. I would challenge such a person to resign, as he or she does not know what he or she is talking about. There is no treatment for suicide. It is as simple as that.
The reference is to suicidal ideation.
We are not considering suicidal ideation. We are considering suicide risk. Suicidal ideation is one element that is often but not always present in suicide risk. It is as simple as that, mostly. There are other clear markers for suicide risk, and it is only suicide risk that psychiatrists are being asked to analyse. It has been said as recently as four minutes ago that there is no predictor, once suicide risk has been determined, that it will actually be carried out, but that it is not the intent of this Bill. It clearly states that what we are looking at is risk - not prediction, not ideation, not a threat to health. We are talking about a clear threat to life. Surely I am missing something in the debate, as the point seems so obvious to me. I cannot understand how it can be obscured with the arguments here. It seems that some of the arguments have tied their proponents into certain positions that they cannot retreat from. I am not pointing the finger at anybody. I have said all along that I am not an expert, although I worked as a nurse in the area throughout my career.
Those who say they are able to support sections 7 and 8 but are unable to support section 9 are drawing a distinction between our response to medical emergencies on one side and psychiatric emergencies on the other. It is a false dichotomy which denies the reality that these are equal risks. A heart attack can be diagnosed and if untreated it can lead to death, but suicidal risk, if untreated, can also result in death. Both are equal emergencies; I cannot understand, therefore, how we can support sections 7 and 8 and not support section 9.
I will speak on amendment No. 30. Although it may appear reasonable at first glance, there is no way this could be incorporated into the law of the land. The idea is for a full psychiatric assessment and assessment of capacity within two hours of admission, but a first year student nurse can tell us that a proper risk assessment takes several days. There is no possible way we could have a proper, comprehensive and accurate risk assessment in two hours.
I presume the reference to a "suicide prevention algorithm" refers to a strategy which can be formed by a psychiatrist to assess the need for hospital admission, day hospital care or care at home as appropriate. This is a key element. What if somebody presents with a risk of suicide without a mental illness or a diagnosable mental disorder, which is required under section 7 of the Mental Health Act? A diagnostic tool is the WHO's ICD-10 Classification of Mental and Behavioural Disorders, of which chapter V lists all diagnosable mental disorders, one of which must be present for involuntary detention of anybody in any of our psychiatric hospitals. If somebody who has been adjudicated as having a risk of suicidal ideation - which is not a mental disorder, according to the terms of the Mental Health Act - is pregnant and presents to a hospital, or, more likely, is brought by gardaí, do we have the power to detain them? Should we change the section of the Mental Health Act that offers protection against unlawful detention in a psychiatric facility, which we have seen much abused even in my own time? In the 1930s, 1940s and 1950s, our psychiatric hospitals were places to incarcerate people rather than treat them. As one section of the Mental Health Act dealing with diagnosable mental disorders offers protection against that, are we now looking to repeal that section? The logic of the argument for the amendment means we must do so. There is another type of logic which would create a position that is unbelievable or even farcical. The only other option we have is to reclassify pregnancy as a mental disorder. These are the only two options we have. How stupid does that sound? It sounds appallingly farcical.
If a person does not wish to avail of treatment for suicidality - if there is treatment at all, and I do not think there is - there is no pathway. I have heard about the idea of pathways.
The Senator should be fair to the rest of the House.
It has been said that suicidality is an act of will, but it is not. Most people who die by suicide have a very ambivalent view of whether they want to live or die, and that is a well established fact.
Paragraph (e) of the amendment prescribes dialectical behaviour therapy, and although this sounds good, it is not without its critics. To enshrine something in our law-----
Nothing is without its critics.
Why would we enshrine this therapy in our law rather than cognitive behavioural therapy, counselling or any kind of psychotherapy? Why would we choose one rather than another?
This is the recommendation of a psychiatrist.
Senator John Gilroy to continue, without interruption.
Why should one be chosen over another? Would Professor Crown enshrine into law one treatment for cancer? Of course he would not, and nobody should think of doing that. Why would we enshrine one therapy when several therapies might be available to treat the underlying cause of suicidality?
It is on a needs basis.
We are talking about treating the underlying cause of suicidality; we are not treating suicidality, because there is no treatment for it. The amendment also contains a provision for a psychiatrist to evaluate a woman twice weekly during the crisis stage of her treatment, but how do we do this if she refuses to co-operate? The idea is clearly not thought out. Do we give people who are suicidal for one reason priority over those who are suicidal for another reason?
I do not believe that is equitable or that one can do that in a republic or in medicine. When one has a close look at this type of nice, woolly, seemingly well thought-out prescription to deal with the issue, it turns into a ball of smoke and is unworkable. It appears to be plucked out of the air.
I could speak until midnight, a Chathaoirligh, but I will not.
The Senator could, but I call Senator Lorraine Higgins.
Since 1992 the Legislature has been obligated to legislate for the X case.
That is two Government speakers.
I am calling on Members as they have indicated.
That is the reality. It has been ignored by successive Governments since then but this Government has taken the bull by the horns to sort out this sorry situation.
We must be clear about what the situation was and is under the X case before this Bill becomes law. I will put myself in the situation. At present, if I happen to be suicidal by virtue of my pregnancy, I could go to the High Court after getting a report or an assessment from an unregistered individual or somebody who might have completed a three month or six month course and I could apply to have the court direct the HSE to find a doctor to perform an abortion on me. That is the law as it stands. This legislation provides that somebody in this situation must see a gynaecologist, an obstetrician and a psychiatrist. In addition, an appeal is also a basis-----
We are discussing the amendments, not the section.
It is a very important point. There has been a great deal of scaremongering in the House about this section. There has been a great deal of faux philosophising also. The suggestion that we are liberalising the regime must be put to bed. Outlining the scenario as it is and as it will be is very important.
There is also the suggestion that was made earlier today that abortion tourism will become the norm on foot of this legislation. That is ludicrous.
We are discussing the amendments.
The Minister confirmed it.
The Minister did not confirm it.
If the Senator wishes to look at the record, he will see that I clarified that issue earlier.
We have heard a great deal about what happened at the committee hearings. Having attended the six days of the hearings, I can say there was contrary opinion. This suggestion that everybody agreed is regrettable. There was contrary opinion, as I pointed out on Second Stage. We should be very careful about making sweeping statements.
In regard to the amendments, Members have questioned why we are doing this. Article 40.3.3° states that the State "guarantees in its laws". We do not always uphold our constitutional obligations in our laws, but we must and I believe we must do so clearly for the X case. The Cosma case was raised, which surprised me. It was said that the Minister, Deputy Alan Shatter, did not deal with it effectively, but I watched it in the Dáil. During the committee hearings, however, a senior counsel and a former Supreme Court judge dismissed that. I do not need to study law to know that a High Court ruling on an asylum case does not gazump - I do not have the legal terminology - a Supreme Court ruling. I do not need to study law to know it is the Supreme Court.
The issue is suicide in pregnancy. I spoke on this issue on Second Stage and will not repeat what I said as I am conscious that other Members wish to speak. However, I have a difficulty with this section because we are separating it from section 7. This is about risk to life. Throughout this debate I have had the feeling - "feeling" is the right word - that this is about a woman who has certain feelings or thoughts. That is not what we are talking about. We were given some very real examples at the committee hearings. We heard about the woman who is anorexic and wants to get rid of the pregnancy. She had taken three overdoses. This is not somebody who has gone to a psychiatrist and said she was not feeling great. We also heard about the woman who is pregnant due to incestuous abuse and about the growth inside her. We heard about the woman who is in an abusive relationship. There are reports which show that when women in an abusive relationship get pregnant, the violence very often escalates. We heard about a woman being kicked repeatedly in the stomach. She did not want this for her child and wanted to kill herself. This is not about a woman who has this idea to circumvent the law. That woman is on the aeroplane and is gone. This is about a risk to life. There are very rare cases and the wording deals with this.
People talk about clinical markers. How do we commit people involuntarily if there are no markers or no way to diagnose? How do the doctors make that decision? It is a medical practice. There is an idea that mental health is not medical. Physical and mental health are interlinked.
I will conclude because I am conscious that other Members wish to speak. As we clearly heard at the committee hearings from obstetricians and many of the psychiatrists, they will always work towards saving both lives. They will work to secure foetal maturity, which is the ideal, and viability, which is the second option if the first cannot be achieved. We are talking about the exceptional cases.
There are other issues I would have liked to raise, such as the establishment of the review committee and the penalties in section 22 for the destruction of the unborn. However, I will raise them on Report Stage as there is a long list of speakers.
The amendment tabled by Senator Fidelma Healy Eames is an effort to change section 9. I do not agree with it. I have no wish to amend the section as I would prefer if the section was not in the Bill. Most of the Bill is well crafted by the Department of Health, and most people accept that. Nobody doubts the bona fides of the Department in this regard. However, this is a very important issue. The evidence was given to the committee but nobody seems to be reading that. Eminent psychiatrists have said that termination is not a treatment for suicidal ideation. The Bill is not evidence-based.
We dealt with that issue.
Dr. Sam Coulter-Smith, master of the Rotunda Hospital, a wonderful hospital, said there was no evidence to indicate that abortion prevents suicide, as did Dr. John Sheehan, consultant psychiatrist in the Mater Hospital and a lecturer in UCD. They are very eminent people.
There appears to be a complete denial of the fact that section 9 will allow the abortion of a healthy child. That is what this is about. Having looked at the evidence and heard all the views, I believe that a woman who would have an abortion on the basis of a threat of suicide would possibly be more suicidal as a result of having the abortion. I admire Senators Fidelma Healy Eames and Paul Bradford. They have a real conscience about this and have put everything at risk. They are not enjoying this. It is a very difficult period for them politically.
The Senator should speak to the amendment.
I make that point because Senator Healy Eames tabled the amendment. I will not delay because others wish to speak. The architect of Britain's liberal abortion laws, Lord David Steel, has said the Irish Government will be making a mistake if it goes ahead with plans to legalise termination on the grounds of a threat of suicide. There were 185,000 abortions in England last year. Can one imagine the number of people who have died because abortion is permitted in England?
It is for a different reason.
Once that started, it continued. Let us be quite honest about this. We are talking about potential Irish boys and girls who will never experience life. That is the reality, although one can dress it up any way one wishes. I know this is a political decision. The members of the Fine Gael Party, in their hearts, did not want this Bill. They gave a commitment before the election that they would not legislate for abortion, but the Labour Party-----
How is this relevant?
I have dealt with the Labour Party in the Council of Europe.
Acceptance of this amendment would involve the deletion of section 9.
I do not know why the Labour Party has an obsession with abortion. I cannot understand it.
That is a desperate statement, even by the Senator's standards.
The Senator has spoken already.
It is not. I know, because I was in the Council of Europe when a proposal was brought forward to extend abortion on a liberal basis in Europe. The Minister of State, Deputy Joe Costello, abstained in the vote.
He would not vote against it but I did and can prove it. Let us be quite honest about the matter. That has been the ideology of the Irish Labour Party for some time. That is fact and the party is proud of it. Do not worry. Senator Bacik has promoted the idea all of the time and is always doing so.
A Chathaoirligh, as there have been enough personal attacks, let us stick to facts.
I wish to make a final point. There is no provision in section 9 to consult the person responsible or father. As we do not know the circumstances, I ask Senators not to jump to claims of rape, incest and everything else. Natural situations do arise and I will not mention the court case that is taking place. There is no regard for the person, whatever the circumstance, who is responsible for conceiving the foetus. He could be very suicidal if the child is aborted but the Government side may not like to hear that point. At the end of the day, they are all glad to be here and glad to be alive. They are all very glad to have experienced life so please do not deprive somebody else of life.
What about the mother?
There should be equal rights for the mother and the child.
I am very disappointed to hear that we will finish at 10 p.m. and that all of the amendments will not be heard. That is very regrettable.
I shall try to speak to the amendment at hand. Again, we have heard a great deal about evidence-based medicine and the fact there is no evidence basis in medicine, allegedly, for abortion ever being a treatment for a pregnant woman with suicidal intent. I hasten to add, and some of my colleagues have touched on the matter, evidence-based medicine is not something that is decided by legislators. Evidence-based medicine is decided by teams and panels of health care professionals and clinicians after synthesising the data and breached guidelines. Some evidence-based medicine comes from a very high level of evidence derived from large randomised trials. The default position when such evidence is not available is that the best evidence available is the evidence which there is and it may be anecdotal.
The other critical matter about evidence-based medicine is that it is not immutable, it changes. As I pointed out earlier, there are things that I do now that I did not do one month ago. There are things that I did one month ago that I have stopped doing now. It is not because a legislator told me what I should or should not do but because the evidence has evolved. We are in a situation where if, in theory, there is no evidence-based medicine forever - I mean forever - doing an abortion on a suicidal woman in an attempt to prevent her going through with self-harm will not happen. One will not get three doctors to agree to do this if they follow evidence-based medicine. Clearly, the subtext is that there will be deliberate malfeasance by doctors in collusion with malfeasant women.
No other interpretation can be put forward for this fear that a non-evidence-based practice will become widely pursued other than the fact that doctors, uniquely in this circumstance, will suspend their sense of obligation and rigour in interpreting data. We are not talking about doctors flown in to some little fly by night clinic. We are talking about people who are consultants. Trust me, I have said often enough in here that one of the several strengths in our mediocre health system is the people who work in it. We have the best trained nurses and doctors in the world. At senior consultant level in all of the specialties we have an unbelievable winnowing process and only people who have gone through an extraordinary level of selection get to a position where he or she can make decisions. We need to trust them.
What then is the problem? As Senator Gilroy has pointed out, maternal death is extraordinarily rare in all western countries. I stand to be corrected on the following. There have been years in Ireland, and during the ones that I have been here, when there were no maternal deaths in the whole country. It is impossible to make the kind of statistical assumptions one needs to make to define an evidence basis for a procedure like this. We have clear evidence - I am sorry but I have tried to stay away from the sad case of Savita Halappanavar and I understand the nuance of the multiple factors that contributed to her tragic death. However, one thing must be said. It was partly an attempt by politicians, judges etc. to give an opinion on what would be the right medical care meant that led to a group of doctors who, I believe, would otherwise have interpreted what would have been the evidence basis feeling constrained from doing so. On the Monday of that poor lady's illness I believe most doctors, in most parts of the world, would have said she was someone who was having an inevitable miscarriage, that the pregnancy could not survive, that the foetus or baby and her precious first born baby would be dead within a matter of hours or days because it could not be saved when the cervix was dilating. I do not want to go into all of the details but Members will know what I mean. It could not have been stopped. The decision was not made to do the manoeuvre which might have resulted in a lesser risk of a potentially fatal infection for her. The understanding of the doctors, on the basis of the legal ambiguity in which they worked, was that they might be breaking the law. That was that, clear and simple. I am not saying that was the only reason. I ask all of those who have told us about evidence-based medicine to please understand that if the doctors had been left alone to practise evidence-based medicine without the fear that was imposed on them by medical amateurs, through a faulty legislative process, the situation may well have been avoided.
I must say something else because I do not believe that I will get a chance to say it later.
We can only deal with the amendments.
With the greatest of respect for my dear friend and colleague, Senator Paschal Mooney, whose absolute sincerity on this issue I appreciate, I am delighted that he will withdraw his amendment. The idea that showing any kind of an X-ray or scan to a suicidal person would change him or her from being suicidal is the least evidence-based proposal that I have ever heard. To illustrate what evidence-based medicine is about, people need to understand this point. I am delighted that, wisely and humanely, Senator Mooney took counsel on this matter and decided to withdraw the amendment.
No one who supports the Bill, which includes the suicide clause, claims that doctors must consider abortion as a treatment for suicide. Rather, it is saying that if the evidence base at the time the decision must be made – evidence bases change - suggests that it may be appropriate, the doctor will not face prosecution. The only logical reason that people of good faith could be opposed to the Bill was if they believed that it was a licence for deliberate malfeasance. It is on this question that those who oppose the inclusion of the suicide provision need to say whether they believe that women will lie and not one but a whole panel of doctors will collectively and unprecedentedly suspend every critical faculty they have and make the wrong decision for reasons that are wholly malfeasant, not based on their training and clinical evidence.
Various people who have spoken on the Bill have been quoted repeatedly. I will not mention names but the number of Members in this House and the Lower House on the airwaves and in the print media who have expressed opinions is extraordinary. I will stray into the legalities, as everyone else is straying in to the medicine-----
As many Senators still wish to contribute, I cannot allow the Senator to move away from the amendments.
They have ignored the fact that people had voted 65%-35% in the most clearly worded referendum in the history of the State, on the twelfth amendment of the Constitution, to the effect that we should not exclude suicide.
I have listened carefully to Senator Crown and others. We are nearing the end of the debate, but I oppose the legislation for a simple reason. I have listened to the psychiatrists who gave evidence and contacted me. I have read written observations that clearly outlined that there were alternative methods to abortion for dealing with suicidal ideation.
Where they are available.
I will share what Senator Leyden outlined. I have grave reservations about section 9 and I am unsure as to whether it can be improved. Senator Healy Eames is genuinely endeavouring to do so in the form of her proposal.
If I gather correctly from Senator Gilroy, everything he said supports where Senator Healy Eames is coming from.
I said the exact opposite.
Senator Ó Domhnaill could not have been listening to what Senator Gilroy said.
He outlined there is treatment and other ways of dealing with it and that abortion is a last resort. Why, therefore, is there nothing in the legislation-----
As it is now 10 p.m.-----
It is giving only one option. It is disgraceful that we are guillotining the debate on a Bill that is a matter of life and death.
-----I am required to put the following question in accordance with the Order of the House: "That amendment No. 30 is hereby negatived, that sections 9 to 23, inclusive, the Schedule and the Title are hereby agreed to in Committee and that the Bill is, accordingly, reported to the House without amendment."
- Bacik, Ivana.
- Brennan, Terry.
- Burke, Colm.
- Clune, Deirdre.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Conway, Martin.
- Crown, John.
- Cullinane, David.
- Cummins, Maurice.
- D'Arcy, Jim.
- D'Arcy, Michael.
- Gilroy, John.
- Harte, Jimmy.
- Hayden, Aideen.
- Henry, Imelda.
- Higgins, Lorraine.
- Keane, Cáit.
- Kelly, John.
- Landy, Denis.
- Moloney, Marie.
- Moran, Mary.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- Ó Clochartaigh, Trevor.
- O'Donnell, Marie-Louise.
- O'Keeffe, Susan.
- O'Neill, Pat.
- O'Sullivan, Ned.
- Reilly, Kathryn.
- Sheahan, Tom.
- van Turnhout, Jillian.
- Bradford, Paul.
- Daly, Mark.
- Healy Eames, Fidelma.
- Leyden, Terry.
- MacSharry, Marc.
- Mooney, Paschal.
- Mullen, Rónán.
- Ó Domhnaill, Brian.
- Ó Murchú, Labhrás.
- O'Brien, Darragh.
- O'Brien, Mary Ann.
- O'Donovan, Denis.
- Walsh, Jim.
- Wilson, Diarmuid.
When is it proposed to take Report Stage?
On Monday, 22 July 2013.
When is it proposed to sit again?
Tomorrow at 10.30 a.m.