Amendments Nos. 8, 9, 16, 17 and 39 are related. Amendment No. 9 is a logical alternative to amendment No. 8 and amendment No. 17 is a physical alternative to amendment No. 16. Amendments Nos. 8, 9, 16, 17 and 39 may be discussed together, by agreement. Is that agreed? Agreed.
Health (Regulation of Termination of Pregnancy) Bill 2018: Committee Stage (Resumed)
SECTION 9
I move amendment No. 8:
In page 8, line 25, to delete "avert" and substitute "substantially mitigate".
Since my amendment is married to others, I am quite happy to let colleagues go before me.
I wish to speak to amendment No. 9, in particular. It has been tabled by me, my Labour Party colleagues and colleagues from across the House. As the Minister will be aware, all the amendments in the group seek to do something similar, which is to address the question of the assessment of risk in respect of the various sections. The aim of amendment No. 9 is to insert "or mitigate" after the word "avert". This applies to the test to be carried out under section 9. Some of the other amendments seek to do something similar, by deleting the word "avert" and replacing it with the phrase "substantially mitigate". All the amendments essentially try to address the issue to which the Minister referred. Similar amendments were tabled and debated in the Dáil. "Avert" sets a high bar for risk assessment for a clinician. By inserting the word "mitigate" alongside or as an alternative to "avert", we are seeking to allow for a test that is broader and leaves more room for clinical discretion. We believe this would be more workable on medical and legal grounds. Essentially, we are concerned on our side that there would be too high a threshold of risk prevention in practice if we continued with the word "avert".
I listened with great interest to the debate on the previous group of amendments. I entirely agree with the Minister on holding the line on the word "appropriate" because it protected the exercise of medical judgment. Similarly, we are now saying inserting the word "mitigate", as an alternative to or alongside "avert", would protect medical judgment to a higher degree and allow for greater discretion in the sorts of cases the Minister describes.
The Minister is quite correct that there will, of course, be different assessments of risk made by the women or their medical practitioners, even in circumstances where the medical condition is the same. During the referendum campaign, there was very powerful and moving testimony from Dr. Peter Boylan and others who described medical circumstances they had encountered in which the same condition had given rise to two different decisions by two different women just because of the context in which they made those decisions. For example, where there is a cancer diagnosis and a resulting threat to health if a pregnancy continues, a woman who already has a number of children might make a very different assessment than a woman who has achieved her first pregnancy, perhaps after many rounds of IVF. Those are the different decision-making contexts that have to be borne in mind. That is why we say our amendment, alongside the others, would allow for a greater degree of clinical discretion, albeit clearly within the framework of the legislation.
In response to Senator Kelleher’s points on our earlier group of amendments, again on the issue of risk assessment, the Minister indicated it might be possible for us to meet clinical experts between Committee and Report Stages. Speaking for myself and my colleagues, we would like to have that meeting, if possible, between Committee and Report Stages. It would be very useful for us to hear clinical assessments about how these tests would work in practice. Having campaigned on this issue for decades, I believe it is the case that we have been debating legal texts and various words such as "necessary", "appropriate", "avert" and "mitigate" for so long. It is, therefore, so important that we hear what the clinical practice will be once the legislation comes into effect.
It is 35 years since the eighth amendment was passed. It had all the legal language. It is strange to hear people who argued very strongly against the Protection of Life During Pregnancy Act in 2013 seeking to defend the test associated with the word "necessary" that was used at the time. That was extraordinary for me to hear having sat through and participated in the bitter debates in 2012. We have been debating these texts for so long - it is seven months from the vote on the amendment - and we want to see how the legislation will operate in practice. That is why it would be useful for those of us who support the Bill strongly but who wish to see it strengthened and improved in the interest of women’s access to meet clinicians.
The point the Minister made in response to earlier amendments about the heads of the Bill having been presented to people is fair, even for those of us who would like to see the Bill made more progressive and who would like restrictions on access eased, as I would. As somebody who is pro-choice, I am clearly very much against some of the aspects of the Bill, including the three-day waiting period, but I am conscious that those of us who campaigned for the repeal of the eighth amendment did so on the basis that the heads of a Bill had been put before the people. I recall, even on doorsteps and in public debates, making the point that there were aspects to the heads of the Bill that I found too restrictive but that I had accepted that was the context in which the referendum was being held.
The Minister pointed out that in January there would be 372 women who would need abortion services who would otherwise be travelling - at a rate of nine per day - or, as was and remains the case, taking the pill at home illegally, at a rate of three per day. There is a hashtag in response to this debate, #WeCantWait. The sentiment is absolutely true. In the seven months since the referendum was passed, I have spoken to the Minister and other Ministers about trying to move more quickly and legislate to decriminalise women and ensure access. Therefore, I make no apology for seeking to do all I can to ensure a service is in place from 1 January. I wish it had been in place before now. The date 1 January is not some magical date that is being held like some sort of threat over anyone but it is the very latest date we owe to women. Our responsibility as legislators, to which we are finally facing up in a post-eighth amendment environment, is such that we do need to be able to provide the service.
I am very heartened that the Minister said there would be health legislation introduced. He indicated that it would happen in the new year. It would be useful for those of us who support the Bill and wish to see it strengthened to know when the proposed legislation is to be in the Houses. The Minister indicated that, as with any other legislation, it would be possible for us to propose amendments.
Of course, as legislators, we can bring forward Private Members' Bills now that we are in a post-eighth amendment environment. I am very conscious that the legislation we are debating is not set in stone and not a constitutional amendment and I will certainly be working with other colleagues on the progressive, pro-choice side to try to strengthen women's access to abortion services. Even if the Bill is passed, as it stands, with the issues and concerns we have identified, I will certainly work to ensure we can strengthen it in the coming months through other legislative mechanisms. I take the point, however, that it is not set in stone. Having said that, the amendments would have great merit in ensuring clinicians would have better discretion, that they would still have a framework in which to exercise medical judgment but with a little more freedom within it and, of course, in ultimately ensuring women would have access to services on the terms they so badly need it now and will need it in the future.
I support amendments Nos. 9, 16 and 39. The reasons have been outlined before and are obvious. Amendment No. 9 seeks to change the word "avert" to "mitigate" simply because there will be scenarios where pregnancy is a significant contributory factor to the risk to the health or life of the woman and its termination may significantly mitigate but not entirely avert the risk. Therefore, the provision in the Bill should be amended to better support medical practitioners' clinical judgment. For instance, clinicians have experience and acknowledge that a pre-existing medical condition can be impacted on negatively by pregnancy. The diagnoses and prognoses change with the added pressure on a woman's body caused by pregnancy. As has been said, it can be different for different women, but certainly it is medically indicated and will mitigate but not eliminate the risk. Use of the word "avert" will be quite confusing and result in a lot of toing and froing and guessing. I suggest it will create a high barrier in seeking access to abortion services and an obligation on women to endure a range of severe and debilitating health conditions during pregnancy, often to their detriment in the long term.
The Minister refused to accept similar amendments on Report Stage in the Dáil. He has said practitioners must be satisfied that termination is appropriate, rather than necessary. We will get on to those two words also. Averting the risk will not require it to be eliminated in order for the abortion to be lawful. I ask the Minister to think about this issue to allow doctors to do their jobs and not tie their hands when it comes to ensuring the safety of women. The Minister should insert the word "mitigate" and leave out "avert". I support Senator Bacik in her request that the Minister meet clinicians to provide clarity on the actual practice or procedure to be followed.
As I would like to see the Bill pass as quickly as possible, I will restrict my contribution on this occasion and simply quote a group of medical practitioners and professors who have briefed me on this matter to give a specific clinical example. They said:
"Avert" is ordinarily understood to mean "prevent". Therefore, in situations where an abortion would considerably reduce risks to life or health but not fully avert them, there is a legal risk that a pregnant person could be forced to continue with a pregnancy on the grounds that the need for aversion, rather than reduction or considerable reduction, had not been met. Placenta accreta (morbid adherence of the placenta to the wall of the uterus, usually to a C-section scar from a previous pregnancy) is an example of a condition in which abortion at an earlier post-viability gestation would undoubtedly be safer for the pregnant person. This is because the longer the pregnancy continues the more the placenta grows into the scar and the more serious the morbidity becomes. In such a case, ending a pregnancy at an earlier gestation would reduce but not completely eliminate the risk. Under the current wording of the legislation, a person who at 14 weeks gestation requires an abortion due to a condition like placenta accreta would meet the requirements of sections 10(1)(a) (risk to health) & 10(1)(b) (pregnancy has not reached viability), but may not meet the criteria of section 10(1)(c) as the abortion would not completely avert the risk but instead reduce it. That person may thus not be entitled to access abortion and might instead be required to travel for abortion care.
If we are considering compassionately the health and well-being of the patient, "avert" is a dangerous word to introduce in the legislation at this point.
I have tabled the amendment because it might help if the Minister answered very specific questions. In the Bill "avert" means to eliminate, not merely reduce and mitigate. Are there agreed examples of conditions where a termination will always eliminate the risk to life or risk of serious harm to health? I do not think so. Will the aversion condition ever be satisfied in cases of risk to mental health? That is why I do not think it is an appropriate word to use in this instance and, like other colleagues, think it should be changed to "substantially mitigate".
I agree entirely with Senator Bacik in her comments on where we are with this legislation and the importance of January. I hear comments about it being a political deadline and think that is really offensive. I will not be in a crisis in January but 300-plus women will be. It is not a political or a ministerial deadline. It is not a target but a recognition that, eight months after the referendum, the women of Ireland expect to be able to access services. In fairness to the clinicians of Ireland, despite what we often hear, many of them are stepping up to the plate and showing great clinical leadership in being ready to provide a service. That service will evolve and need time to be embedded, but clinicians are getting ready to start such a service in the new year. I thank Senator Bacik for the foundations she laid on the issue long before it became mainstream.
This conversation very much ties in with the conversation we have had about the word "serious" because it is in the same section. Section 9(1) states:
(1) A termination of pregnancy may be carried out in accordance with this section where 2 medical practitioners, having examined the pregnant woman, are of the reasonable opinion formed in good faith that—
(a) there is a risk to the life, or of serious harm to the health, of the pregnant woman,
(b) the foetus has not reached viability, and
(c) it is appropriate to carry out the termination of pregnancy in order to avert the risk referred to in paragraph (a).
It is important, when we talk about these sections, to acknowledge that the overwhelming majority of terminations will take place pre-12 weeks. This refers to occasions where we have moved beyond 12 weeks, are in difficult and exceptional circumstances and dealing with tragic cases. I think the people of Ireland want to know that, beyond 12 weeks, termination will only be allowed in certain circumstances where there is a real and substantial risk. We are using language related to serious harm to the health or the life of the woman.
The wording in the section was considered at great length and needs to be read together because the formulation of words set out in the Bill is based on a policy position approved by the Government. It was set out in the general scheme of the Bill published last March to regulate the termination of pregnancy. I take Senator Ruane's point and hear her frustration, but we cannot second-guess and I have no right to do so why people voted "Yes" or "No" in the referendum and whether they had read the Bill. I certainly know, however, that it was debated extensively. It was waved at us by our opponents as bad and by proponents as largely good in terms of the grounds proposed. Many who campaigned for a "Yes" vote answered questions on the detail based on the draft legislation. Not everybody did so but many did.
I have dealt with why the qualification "serious" was included from a legal perspective and established that it is about more than just normal risk to health that can come with pregnancy. Senator Devine is right to refer to the fact that Deputies in the Dáil also raised this issue, on which we had a lengthy debate. I need to reaffirm the view that the policy position approved by the Government and set out in the general scheme of the Bill to regulate the termination of pregnancy which was published in advance is that in the event that there is a serious risk to the woman's health, a termination of pregnancy may be carried out where it is appropriate to avert the risk. The term "avert" has not been changed since the general scheme of the Bill was introduced. As used in the Bill, "avert" means to avoid or prevent a serious risk of harm to a pregnant woman's health, to stop or turn it aside.
The section clarifies that in the event that there is a serious risk to the woman's health, a termination of pregnancy may be carried out where it would be appropriate to prevent that risk. The language used in the Bill, again, has regard to the need to clarify that the scale of the risk of harm involved goes beyond that normally involved in a pregnancy and a termination of pregnancy is appropriate in cases where it can prevent such harm. An important point I need to make is that termination of pregnancy is not restricted to cases where the medical practitioner believes that the termination is necessary. We have just had that debate.
The word "appropriate" somewhat balances some of the concerns people may have in respect of the word "avert". In other words, it is not the only possible course of action in order to avert the risk of serious harm to the woman's health. Senator Marie Louise O'Donnell is correct in stating there is not a list of what "avert" is and what conditions it covers. I see that as a strength rather than a weakness, although some Senators may not agree with me. I am referring to allowing clinicians, in their reasonable opinion formed in good faith, to make decisions rather than having to dust down or take out some prescriptive list. That is my perspective.
A constructive suggestion at this stage, as put forward by Senator Bacik, and one similar to the conversation on "serious", is that we take the conversation on "serious" and "avert" together in the engagement we will have. This whole section is interlinked and the word "serious" appears in the section relating to aversion. If we are going to engage on this, we should probably engage on section 9(1) in its entirety. I would be more than happy to facilitate that engagement happening in advance of Report Stage.
I think this is different from some of the other concerns in this section. As the Minister described it, I became more concerned. He described the word "avert" as very hardline. He spoke of avoiding, preventing, stopping or turning aside. I am worried, as other Senators are, about many scenarios. I refer to the example of an 80% risk of serious harm that is going to be reduced to a 20% risk of serious harm. Will that be considered as acting "to avert" the risk of serious harm? I ask that because it is not stopping it but it is substantially reducing it. There are a few scenarios like that and other areas mentioned include mental health. I refer to there being serious harm. If a doctor takes an action in such a situation, the harm still happens and he or she is not seen to have averted serious harm, will that doctor be vulnerable?
While it may seem that we are being pernickety on the details of these words, what makes it much more severe is something that not many people expected. I am talking about the element of criminal sanction and criminalisation. People are fearful about how these terms are going to be interpreted. It is a concrete fear. The word "avert" is harsh in respect of the line that it puts in place. A reasonable proposal, which builds on and develops from a debate in the Dáil, was made by our colleague Senator Marie Louise O'Donnell. She referred to "substantially mitigate". That is not a very wide framing. I indicate that I may come back to this issue on Report Stage.
I wonder about the perspective of the Minister if the word "avert" is the attachment and if we are to believe that the word "avert" is adequate for the scenarios of which I have spoken. Would, for example, the phrase "avert or substantially avert" be satisfactory? Then we could look to where we are not in a purely absolutist situation in having turned aside a risk of harm. I refer to turning aside in the sense that we will have wrestled with the wheel of the car and then have driven towards what we believe to be a safer route. We cannot, however, guarantee that we have stopped the danger or risk of serious harm. That is the reality of many medical situations. Perhaps that might be something the Minister will consider.
It is welcome that the Minister has indicated that he will engage in this area. I take it that he will and that he will also examine the specific clinical case that I mentioned. It was brought to my attention by medical practitioners and medical professors. I am referring to the question of placenta accreta. That is a situation that develops and gets worse and worse. An intervention at an earlier stage could be in the medical interests of the patient.
I thank the Minister for his comprehensive reply. It would be useful, as he has agreed, for those of us who have put forward these amendments to be facilitated in meeting with relevant practitioners or clinical experts. I think the Minister mentioned that would be before Report Stage. I am anticipating a meeting on Wednesday and that would be very helpful.
I have to agree with my colleagues in this matter. The word "avert" is very strict. That should be taken into account and the word "mitigate" considered instead. I certainly do have a concern on this issue. Action taken may not avert the final outcome and that is something that needs to be looked at from the perspective of the best interests of the patient. All medical practitioners will take what they deem to be the appropriate action to protect the life of both the mother and the foetus. In this situation, however, I am not clear that the word "avert" is the perfect solution. I agree with my colleagues on this matter and it should be examined.
I withdraw amendment No. 9 and reserve the right to reintroduce it on Report Stage, given that we will I hope meet clinicians.
The Senator can do that when we come to it.
Notwithstanding the genuine nature of the amendments submitted, I cannot bring myself to support them. In regard to the words "mitigate" or "substantially mitigate", from my own perspective, it would have the effect of reducing further the protection of the unborn child, which is already non-existent.
It is not possible to reduce something that is non-existent.
It is amazing what the objective is. I refer to removing rights that are not already there. The rights of the unborn child, unfortunately, have been eroded by this legislation. There is no question about that, regardless of what side of the argument we are on. We should, at least, agree on that. I was speaking about amendments Nos. 8 and 9. Amendments Nos. 16 and 17 refer to section 10 of the Bill. I have three primary concerns with both of these amendments. They would erode the protection of the unborn child at every stage of pregnancy. That includes right up to complete emergence from the body of the woman. In addition, it would only require one doctor to certify, as is the case under section 10. My third concern is that no one, including the nurses, the midwives or any of the healthcare professionals, would have any protection in the Bill from being expected to take part in an abortion under section 10. That goes back to the conscientious issue which will be dealt with later. I have some concerns about any further dilution of it in the Bill. I heard the Minister state he was willing to engage. That is welcome because engaging with all sides is the parliamentary process. I hope that courtesy will be extended to our own pro-life side also, not just to the pro-choice side. We are available to engage if some of our amendments were amenable.
Senator Ó Domhnaill's colleagues in the Dáil will assure him that in any briefing I have giving, I have included people from a variety of perspectives on this issue. I will have no difficulty in doing so again. After Committee Stage in the Dáil, I invited anyone who had participated in the debate and wished to partake to do so.
I have no difficulty in arranging it through the Seanad Office or whatever is the appropriate forum.
I do not believe at this stage I should add any more to what I have said other than to point out that Deputy Alan Kelly and others raised this issue in the Dáil. As a result I sought the advice of the Attorney General. That advice was that the word "avert" provided more clarity on this issue but in the light of Senator Higgins's comments on Senator Marie-Louise O'Donnell's amendment, I will do the same again. I will engage with the Senator in advance of Report Stage.
Sitting suspended at 6. p.m. and resumed at 6.25 p.m.
I welcome back the Minister and colleagues. The Minister had concluded. I call Senator Mullen.
I wish to make a very brief comment. My colleague Senator Bacik referred to being surprised that Members - I presume she meant me or Senator Ó Domhnaill - were invoking the 2013 legislation in the context of the discussion about necessity. There was always the acceptance in 2013 that necessary medical procedures in which there was a threat to life were appropriate. That was never the issue. As often with legislation, there are parts people support and parts people oppose. An issue that arose in 2013 which was highly problematic was the fact that there was no evidence base for the idea of abortion as therapeutic in the context of a threat of suicide. This was the core objection, colleagues may recall, that many people had. However, in the context of determining when a medical intervention is appropriate, even one that includes the loss of the life of the unborn, the test has always been one of necessity. There can, therefore, be no argument or surprise about the fact that we would seek to emphasise the word that was also, as it happens, in the 2013 legislation. Even if one were fully opposed to the 2013 law, it would still make sense to try to prevent a bad situation from becoming worse, which is what this legislation does. It makes a bad situation far worse because it extends the grounds for abortion far beyond the controversial area of the threat to life. I just wanted to make that point by way of clarification because it was brought up just before the sos.
I thank the Senator. Does anyone else wish to speak to this amendment before I put the question?
Which amendment?
Amendment No. 8. We are also discussing amendments Nos. 8, 9, 16, 17 and 39. Is Senator Marie-Louise O'Donnell pressing the amendment?
No, but I hope we will be able to have a conversation about it this week. I thank the Minister for his openness in responding to it.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 8, line 25, after “avert” to insert “or mitigate”.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 8, to delete lines 27 to 29 and substitute the following:
“(2) Where practicable, both medical practitioners must consult with the pregnant woman in order to ascertain her view of the risk referred to in subsection (1), and take her views into account in forming the opinion referred to in that subsection.”.
Amendment, by leave, withdrawn.
Amendments Nos. 11, 12 and 20 to 22, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed. Amendment No. 12 is a physical alternative to amendment No. 11. Amendment No. 21 is a physical alternative to amendment No. 20.
I move amendment No. 11:
In page 8, to delete lines 33 to 38 and substitute the following:
“(4) The obstetrician referred to in subsection (2)(a) shall make such arrangements as he or she shall deem to be necessary for the carrying out as soon as may be of the termination of pregnancy to which the certification referred to in subsection (3) relates.”.
I will be brief. This amendment would delete the requirement that the doctor who certifies that the woman may access an abortion where her pregnancy poses a risk to her life or health also carry out the termination.
In the context of the pressures on health services, this provision is far too inflexible, especially when a woman's life or health is in danger. We do not want the care of a woman in this vulnerable position to be placed at risk or to be interrupted because of a statutory requirement that is at odds with best practice, let alone as a result of issues that could arise from rostering or conscientious objection. The amendment would simply allow the doctor who certifies the woman for access to an abortion to make the arrangements for the abortion to be carried out by another doctor, if required.
The Minister will see from the list of Senators who tabled the amendment that it has support. It is common sense and accepts the reality of how health service provision will look once we move from the statutory realm to providing care for women. I hope the Minister will accept it.
I am speaking to amendments Nos. 12 and 21. My colleagues and I tabled this amendment after consulting many senior clinicians. Senator Ruane noted the practicalities of carrying out abortions in hospitals. The legislation encroaches in the areas of rostering and scheduling in hospitals. Many doctors and clinicians do not work in only one location. Many work in a maternity hospital and a general hospital and may not work in the same place continuously for a three-day period. The current provision is not practical. I ask the Minister to clarify the words "carried out" in this context and explain how broad or narrow their meaning is.
On amendments Nos. 11 and 20, there is a conflict between sections 9 and 11 which has not been explored in detail. As Senator Ruane noted, the amendment concerns the need for a certifying doctor to be the doctor who carries out the termination. The Minister realised the problem and amended this requirement in respect of early pregnancy when the Bill was before the Dáil. The requirement that the same practitioner certify and subsequently provide a termination is likely to act as a barrier to access to care and, significantly, to impose significant rostering burdens in hospital settings, leading to delay and later terminations, especially after 12 weeks.
The amendment seeks to clarify that medical practitioners may transfer care to colleagues, as happens in healthcare generally. A same doctor requirement is not workable in practice due to part-time working arrangements, rostering, annual leave, sick leave and so on. On Report Stage in the Dáil, the Minister appeared to suggest this provision was necessary to ensure the chain of causation was not broken if an unlawful abortion took place in a hospital setting, in other words, this requirement has been provided in a legal sense to identify whom to prosecute in cases of unlawful abortion after 12 weeks. This is really something else. It means that criminalisation is intended in hospital settings, even when all the proper certification and procedures have been gone through. It is the essence of what it means to perpetuate the chilling effect. It behoves us to ensure common sense prevails in order that legislation can be workable in a practical sense.
The Minister wishes to clarify a matter, after which I will call Senator Higgins.
I thank Senators for tabling these amendments as they highlight a very important area on which I was prompted to seek greater clarity. I have discussed this issue with Senator Ardagh and her party colleagues, Senator Ruane and others. Senator Gavan is correct that we moved in the Dáil to fix a practical challenge in the delivery of services in early pregnancy. While we do not all share this view, the practical difficulty arose from the fact that a three-day period had to elapse. This meant that a woman could go back to her general practitioner and find a different doctor working because the GP had gone on leave. We have managed to keep the link with certification because no doctor can be forced to carry out a procedure based on another person's medical opinion. However, we have managed to do so in a way that does not restart the clock. I believe people are largely satisfied that we have dealt with this matter as it relates to early pregnancy.
The question that arises beyond the 12-week period is what does the term "medical procedure" mean. We had a meeting of all the relevant stakeholders this morning, including leading medics who are preparing to provide this service, the masters of the maternity hospitals, Dr. Peter Boylan who is clinically advising on this issue, officials from the national women and infants health programme and representatives of the Irish College of General Practitioners and Institute of Obstetricians and Gynaecologists. To respond to Senator Ardagh's call for clarity on what the wording means, I refer Senators to the definitions section of the Bill in section 2. It states "termination of pregnancy", in relation to a pregnant woman, means "a medical procedure which is intended to end the life of a foetus", while the term "medical procedure" is defined as including "the prescribing, by a medical practitioner, of any drug or medical treatment". Therefore, the prescribing of the drug is the medical procedure.
I have heard of real cases which obstetricians and gynaecologists are right to highlight where a woman could start a procedure that could take a number of days. It is not commonplace but could happen for a variety of reasons. The clinician will have discharged his or her duty in the prescribing of the medication. That is the procedure. I have sought legal and clinical advice on this issue and sought the understanding of those drawing up the clinical guidelines. The medical procedure includes the prescribing of any drug. The aftercare or care of the woman during that procedure is a normal matter for rostering. I am happy to provide clarity, including written clarity, for Senators who have a concern about this matter. The idea is not that the same obstetrician must be present for a period of days.
If Senators accept the definitions of "termination of pregnancy" and "medical procedure" in the Bill, we need to ensure we do not break the link between the responsibility of one doctor in caring for a woman and the continuum of care for that woman. I shared the Senators' concerns on this issue and wanted to get it right. We amended the legislation where we believed it was not right. I think we have shown good faith and that we are not precious when we need to get something right. Where the legislation was not right in respect of early pregnancy, we amended it. However in relation to later pregnancy, health and life and fatal foetal abnormality, the person who certifies and provides the care must carry out the procedure. It is not the case, however, that this person cannot hand over aftercare or care monitoring of the woman. That is allowed for in the legislation. I will, before Report Stage, provide Senators and the clinical community with further clarity. However, I am satisfied that the excellent HSE engagement with stakeholders I attended this morning, at which Dr. Boylan and others had an opportunity to engage with clinicians, provided a degree of clarity that had been lacking. This has been very much welcomed.
I am happy to engage on this matter and tease it through, but I am satisfied that the legislation is robust in protecting the woman, ensuring it must be a doctor's reasonable opinion and that the doctor must certify that opinion. I am also satisfied that it does not provide unintended consequences in respect of ongoing monitoring and aftercare.
I would be happy to meet the Minister on this matter and take up his offer to provide written assurances in that regard because this is an issue of concern. I support amendment No. 20 which makes clear recommendations in relation to obstetricians. The language used for making arrangements for the carrying out of the procedure is reasonable. The Minister referred to prescription. Are arrangements envisaged in the same sense as they are envisaged for prescription?
My specific concern, on which I have proposed an amendment, relates to early pregnancy. I have proposed to delete the words "carried out" and substitute them with the word "initiated". I am sure the Minister will be able to reassure me on this issue. A significant concern arises regarding persons who may be within the 12-week period and for whom a medical termination may be initially indicated. A doctor may take appropriate steps and prescribe medication for a medical termination. However, it can be the case that, following the first dose of Mifepristone, a miscarriage is not successfully induced, although there may not be foetal life. This is similar to what happens in the case of missed miscarriages. It could be some time later, perhaps a week afterwards, that the person, who will not be carrying a viable pregnancy, must move from what would have been a GP setting to a hospital setting.
With due respect, the Minister caused some alarm with the language of chain of causation and so forth because we are looking at situations where persons in a GP's office being prescribed medication and taking steps with regard to a medical termination may then find themselves in a situation where aftercare takes place in a different setting - a hospital setting with an obstetrician who may not have been involved. We mentioned rostering and gaps. The GP may no longer be in the country and may have travelled, which would have been a reasonable expectation. This circumstance does arise. We know that it already happens in terms of missed miscarriages whereby foetal life ends but the pregnancy effectively continues to manifest and a miscarriage does not occur. We know that this situation arises, that misoprostol does not always work in terms of inducing a miscarriage and that there is time when surgical intervention is needed. None of that should be an issue, except for the fact that the Minister has used language like chain of causation. People will wonder where it fits in and what the concerns are. Should somebody in the hospital be concerned that they are dealing with aftercare in respect of a process that was started in a GP's surgery? Should the GP be concerned because the process continues? The Minister has given some clarity by referencing the prescription and the medication but I would appreciate getting this in writing. The Minister can understand the concern because situations also arise where people are potentially moving between one part of the Bill and another part. That is what I mean by chain of causation. It might be worth reconsidering because this language caused considerable alarm.
Obviously, the chain of causation is a concern but in saying the second doctor is not needed in the same way as happens under 12 weeks because of the three-day waiting period and schedules, this option after 12 weeks assumes that the hospital will be in a position to initiate the termination straight away, which might not be the case. Someone in a maternity hospital could be sent home to see how things go or because there are no beds or something is wrong. There are reasons someone would be sent home to wait a day or two for a procedure. It happened to me with high blood pressure. I ended up being hospitalised for a month and the staff constantly waited to see how bad the blood pressure got before they did something. In that circumstance, that clinician could easily change because having the same clinician is based on that individual being available to carry out that termination straightaway. If anything, the chain of causation, if that is what we are looking at, would be made even more robust by a second doctor being able to read over the notes. As somebody else would be having a second look at the decision that was made, it seems even more robust than somebody making a decision in isolation and nobody reviewing the case or file. I do not see how it is really practicable because a doctor could finish his or her shift, could be going on holidays or something could happen to him or her on the way home. There could be a million reasons the termination does not happen on the same day, which means the shift will change automatically the next day.
It is a question of balance. We must make sure this is operable from a doctor's point of view. All of us or certainly those of us in favour of the legislation want to make sure it can work and provide access for women. In making sure it works for doctors, we need to make sure it works for women. That is a balance. There is a duty of care on the part of the obstetric community in terms of the continuum of care for women. Remember the women who will be in this category. This is not early pregnancy. We have dealt with that issue. These will be women who are very sick, are at risk of dying or are affected by a fatal foetal abnormality. They will be people who are extraordinarily well known to the health service and continuum of care is really important in that regard. What we do not want and what nobody who has spoken here wants is a situation where an obstetrician would certify but might not carry out the procedure, if the Members accept my definition of a procedure, and the woman then has to find or hope there is another obstetrician in the hospital who agrees with that and will recertify. I am trying to get a balance. The balance is making sure the legitimate concerns raised by the Senators on behalf of people in the clinical community have been addressed in terms of how this operates and that there is practicality to this provision, if it goes on over a period of days. We must balance that, however, with ensuring the duty of care to the woman in order that a woman who is very sick does not have to experience changing obstetricians on a very regular basis. I am much more satisfied after the engagement I had today that the balance is right and that it is workable but I am very happy to pick up the points made by Senators Ruane and Higgins and others.
Sometimes when I try to explain things, it is easier to relate them to my own experience. When I was hospitalised for a month due to the threat of something happening because of blood pressure, it did not matter how many obstetricians saw me. If an emergency induction or caesarean section was needed to save the life of my daughter, the need for the same obstetrician to sign off on it did not arise but if it was to save my life, there would have been this extra barrier. If it is the other way around-----
Not in the emergency-led-----
-----even in respect of health, there is an extra barrier when it involves the woman's life and it is a barrier. As a woman who was in a maternity hospital experiencing childbirth, I can tell the Minister that when it comes to the continuum of care, when it is that close to affecting one's health, I do not think one would really mind if a different obstetrician or clinician comes in three days later and gives the life or health-saving intervention one needs.
I will be very clear because I do not want anyone thinking this in any devalues the woman's life because I would have thought we have come a long way from that with the referendum and the result the people gave us. If there is an immediate risk to the woman's health or life, the emergency provision is very clear in terms of many of the other procedures or processes being discarded. This is a situation where it is not deemed to be an emergency but there is deemed to be a serious risk or a situation involving a fatal foetal abnormality arises.
It would be the same if an early pregnancy was being brought on arising out of a serious risk to the baby. It is usually not a risk to his or her life. As it is usually a serious risk, the pregnancy is brought on earlier but they do not make sure the same clinician under whose care the woman has been in the maternity hospital is there.
I do not disagree with that but this is different in the sense that there is a risk of the law of unintended consequences where one obstetrician-----
It is the problem of criminalisation.
We will get to that in a second. It involves where one doctor has got to know a woman and her medical history well and has certified that she needs this medical intervention in the interests of her life or health. Then, all of a sudden, she needs to find and depend on another obstetrician.
What if he or she is not there?
We all know and have discussed at length conscientious objection. The person who certifies has the obligation to start the procedure. That is really what it boils down to. Senator Ruane is certainly not in this category but in the past week, it was almost as if we had a referendum about doctors. There needs to be a degree of clinical responsibility and leadership. The person certifying is undertaking to make sure the procedure happens. That is what he or she is doing as a clinician. If the doctor is not going to be there, he or she needs to make sure he or she transfers care and make sure somebody else certifies. We must look at this from all angles and both sides in getting it right for women and doctors. Doctors were and are right to highlight that there needs to be clarity about this and I am very happy to give that clarity and make sure there is certainty. They were right that there was a flaw in the legislation in terms of early pregnancy. I had no difficulty in conceding that and we have rectified it. However, there is also that duty of care and responsibility such that the clinician who certifies according to his or her reasonable medical opinion - remember we are in a pretty expert field because we have gone beyond the 12 weeks - starts that procedure. The definitions in the Bill are clear as to what the obligation is. I do not think it is as onerous as perhaps it first appeared. I will provide written clarity and will happily engage in that regard.
I am just pointing out that amendment No. 20 relates to the section on conditions likely to lead to the death of a foetus. These are situations in which persons may be receiving news in a very short space of time and may receive it twice in a very short time. While the Minister has emphasised the relationship between the obstetrician and the woman in question, it might not be the most important relationship.
There would be situations, for example, where a partner would need to be informed. There would be situations in which family members would need to be discussed. There is, of course, the element that the point of certification where the recognition of the situation meeting the bar that is set may happen at one point. It may be, however, that women find themselves going over a night or two or perhaps needing to speak to their partner on what will be a difficult decision. It is probable, if we are looking to the person who is pregnant in this regard, that there will be a need in many cases to have flexibility such as is set out.
I understand the Minister is speaking about having started the procedure and that seems quite close to the "make such arrangements" provision. In that regard, the phrase "carrying out" is not ideal in that it is not so clear. However, there is a concern that persons who are dealing with a very difficult situation should not feel they are ending up being rushed in to ensure they can avail of the same window with the same obstetrician and do not have to restart the process, recertify and get the bad news again another two times before they can proceed. In these situations, one already has got two opinions but it is clear in section 11 that there may only be one obstetrician. Therefore, there may effectively be only one person who can carry it out. The pregnant person is dependent on the presence of one medical practitioner in that regard. It is a situation where nobody should feel rushed. While the Minister can be in tune with the spirit of what he is trying to do, I urge him, in terms of section 11, to give serious consideration to amendment No. 20 or providing some clarification in that regard.
Before I comment on the amendments, I will address one point the Minister made. The Minister stated he was certainly not devaluing a woman's life and that we had come so far from that since the referendum. I have a real problem with that kind of political language because of its implication. The eighth amendment was sought and put in place to protect mothers and children. It proceeded from a place of enormous respect for women's lives and dignity. The loss of the eighth amendment and this extensive legislation for abortion disrespects a hell of a lot of unborn women. The Minister is entitled to his political view in stating we have moved away from the devaluing of women's lives by repealing the eighth amendment but when he expresses that political view, he makes a statement about the 34% of people who voted "No" and many more, perhaps, who voted "Yes" for abortion on exceptional grounds and puts them in the category of people who were complicit in devaluing women's lives. It is a statable opinion but the Minister can understand it is one that many will find deeply offensive. They see themselves right now as much better champions of women's dignity than the Minister because they are also defending unborn women's lives, fully and to the hilt, the lives and welfare of women in pregnancy.
Having regard to the reason I oppose the amendments, I heard the Minister's rationale. It seems that, by providing for allowing abortion to be carried out by somebody who is not one of the certifying doctors, this would surely see a situation where some doctors would be more likely to be willing to certify if somebody else was carrying out the procedure that would have the effect of killing the unborn child. That would be the case for anybody who would be so-called "pro-choice" but not so comfortable with abortion that he or she would be prepared to do it. Such persons exist. The effect of the amendment would be to widen the pool of medics who would be prepared to certify readily for abortions.
It also introduces an "as soon as may be" requirement not currently present in the section which would diminish time for reflection.
The amendments would do real harm. When one remembers what is at stake - we are supposed to be operating within a category of medical necessity - surely interventions that are considered to be medically necessary should be undertaken with great responsibility and great care for mothers and for the unborn children involved unless this section is really about bringing in abortion on a more liberal basis in the second trimester.
If the doctor certifying was scheduled to do another operation, was scheduled to be abroad or whatever else, of course, another doctor should come in. I do not see what significant difference it makes. The woman is anxious to receive this treatment. If she receives it, it does not make the slightest difference who performs the operation.
I have nothing further to add.
I did not expect the Minister to.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 8, line 34, to delete "carried out" and substitute "initiated".
Amendment, by leave, withdrawn.
Question put: "That section 9 stand part of the Bill."
The Committee divided: Tá, 31; Níl, 5.
Tá
- Ardagh, Catherine.
- Bacik, Ivana.
- Burke, Colm.
- Burke, Paddy.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Maria.
- Clifford-Lee, Lorraine.
- Coffey, Paudie.
- Conway, Martin.
- Craughwell, Gerard P.
- Devine, Máire.
- Dolan, John.
- Feighan, Frank.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Humphreys, Kevin.
- Kelleher, Colette.
- Lawlor, Anthony.
- McFadden, Gabrielle.
- Nash, Gerald.
- Noone, Catherine.
- Norris, David.
- O'Donnell, Marie-Louise.
- O'Reilly, Joe.
- Ó Donnghaile, Niall.
- Ó Ríordáin, Aodhán.
- Reilly, James.
- Richmond, Neale.
- Ruane, Lynn.
- Warfield, Fintan.
Níl
- Coghlan, Paul.
- Mullen, Rónán.
- O'Mahony, John.
- Ó Domhnaill, Brian.
- Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and Catherine Noone; Níl, Senators Rónán Mullen and Brian Ó Domhnaill.
Question declared carried.
SECTION 10
I move amendment No. 13:
In page 9, line 5, to delete "examined" and substitute "consulted with".
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 9, line 7, to delete "serious".
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 9, line 8, to delete "woman, and" and substitute the following:
"woman,
(b) the foetus has not reached viability, and".
Amendment put:
The Committee divided: Tá, 5; Níl, 31.
Tá
- Coghlan, Paul.
- Mullen, Rónán.
- O'Mahony, John.
- Ó Domhnaill, Brian.
- Wilson, Diarmuid.
Níl
- Ardagh, Catherine.
- Bacik, Ivana.
- Burke, Colm.
- Burke, Paddy.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Maria.
- Clifford-Lee, Lorraine.
- Coffey, Paudie.
- Conway, Martin.
- Craughwell, Gerard P.
- Devine, Máire.
- Dolan, John.
- Feighan, Frank.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Humphreys, Kevin.
- Kelleher, Colette.
- Lawlor, Anthony.
- McFadden, Gabrielle.
- Nash, Gerald.
- Noone, Catherine.
- Norris, David.
- O'Donnell, Marie-Louise.
- O'Reilly, Joe.
- Ó Donnghaile, Niall.
- Ó Ríordáin, Aodhán.
- Reilly, James.
- Richmond, Neale.
- Ruane, Lynn.
- Warfield, Fintan.
Tellers: Tá, Senators Rónán Mullen and Brian Ó Domhnaill; Níl, Senators Gabrielle McFadden and Catherine Noone..
Amendment declared lost.
I move amendment No. 16:
In page 9, line 10, to delete “avert” and substitute “mitigate”.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 9, line 10, to delete “avert” and substitute “substantially mitigate”.
Amendment, by leave, withdrawn.
Question proposed: "That section 10 stand part of the Bill."
The section needed to be amended to ensure that, where an unborn child was capable of being born alive-----
I am trying to listen to Senator Mullen. Will those Senators not involved in the debate either leave the Chamber or be silent?
The section needed to be amended to ensure that, where an unborn child was capable of being born alive, he or she would have been delivered alive, unless that course of action was not open to the treating doctors. We are left with a situation that there is currently no provision in the Bill requiring even a consideration of saving unborn life in an emergency. Surely it is not the aim that the child's life would be ended in such circumstances. It ought to be explicitly made clear that this is not the Bill’s aim. Adding in that clarification would have made no difference whatsoever to the right of a woman to receive the procedure in the circumstances given.
During the referendum, voters were repeatedly told that there would be no late-term abortion. The Minister told the Dáil: “It is important to be clear and truthful that, in cases where the foetus is viable, early delivery and the full range of neonatal care are the reality.” It is impossible to conclude that the Minister has been truthful in the light of what the Bill now states.
That is a terrible accusation.
Where in the Bill is it specified that the full range of neonatal care will be provided? Where is there any duty on doctors to act to vindicate life? Surely, in view of the Minister’s comments in the Dáil last April and the explicit pledge given to voters, the proposed amendments to the Bill should have been uncontroversial.
The Protection of Life During Pregnancy Act 2013 speaks of ensuring any decision made “has regard to the need to preserve unborn human life as far as practicable”. There is no equivalent section in this legislation. There appears to be no overriding aim that, where possible, the life of the child should be preserved. Will the Minister, please, explain how the current Bill’s provisions achieve this aim in the absence of explicit language? What protects against abortion right up to birth on mental health grounds? As has been noted, nothing in section 10 places a bar on it.
It seems bizarre to me that in situations where there is to be termination, including on the grounds of mental health, the medical practitioner giving the certification does not have to be a psychiatrist. This is not just grossly negligent drafting. It is cynical in the extreme. We are talking about procedures which are being defined as medical procedures but which are intended to end the life of the unborn. We do not allow psychiatrist colleagues to make pronouncements or to prescribe treatments on obstetrical matters. Why would we allow obstetricians or other medical practitioners to do so in respect of mental health matters?
My amendment had no impact on the right of women to access the service. It simply had regard to the need to respect and protect unborn human life, where possible, without placing the woman's life in any danger. This has always been the medical practice in Ireland for decades. I already have said the abolition of the constitutional right to life of the unborn means that the obligation on the treating doctors has changed. It was necessary to fill that gap to a limited degree. We surely cannot conclude that, in removing the eighth amendment, voters believed that children in the womb had no rights whatsoever in law, even later in pregnancy. This goes against everything we know about how Irish people react to and treat pregnancies. It goes against all opinion polling on when Irish people believe life begins. It goes against opinion polling and exit polling on the day of the referendum. It is appropriate to give legal protections of some kind from the point of view of viability. This should not be contentious.
If my amendment had been accepted, an amended section 10 would not in any way have lessened a pregnant woman’s entitlement to all necessary medical treatment to end her pregnancy. It would have meant, however, that where it was possible to save both lives, doctors exercising their clinical judgment would have made an attempt to do so where we were talking about the post-viability stage. Laws in other countries have been shown to be sadly lacking in that regard with no concern whatsoever shown to unborn babies in the later stage of pregnancy. It looks like we are facing a similar situation here beyond a shadow of doubt.
Will colleagues think one more time before they go with this section 10 unamended which will allow for abortion right up to birth, including on mental health grounds, despite the lack of evidence that abortion is therapeutic in cases of mental health? It is terribly irresponsible and unjust.
That is disgraceful.
I have allowed Senator Mullen much latitude. I recall him claiming that the Minister was not being truthful. That is an unfair charge. The Senator and the Minister might be diametrically opposed on certain issues. However, to claim a Minister would come here and be untruthful is an unfair charge.
The Senator should withdraw the charge.
I did not say the Minister was untruthful. I said it was impossible and it is impossible to conclude that he was being truthful when he claimed abortion post viability was specifically excluded.
Withdraw it.
We will have one voice only.
I do not like having to diagnose it in this way but I cannot conclude otherwise. There has been an absence of truthfulness when people claim the legislation specifically requires doctors to save life post viability when everything in the legislation adds up to exactly the opposite. I am sorry to say somebody has not been truthful and it is not me.
Seanad Éireann considered the Senator’s amendment with great deliberation, as one would expect from the House. Senators voted to reject it because they realised it was not necessary. We do not need the Senator to protect pregnancies because women do that. They are the greatest protectors of their pregnancies.
Hear, hear.
To pick this section of the law which refers to an emergency is particularly offensive. We are talking about a situation where a woman is at risk of dying or there is a risk of serious harm to her health. Senator Mullen knows very well that doctors work every day to preserve life.
We have already discussed the definition of viability in this House and mentioned the fact that all neonatal supports would be available to a baby born through a medical intervention where the life of the mother needs to be saved.
I want to be clear because the Senator keeps on levelling charges at me and I have no intention of levelling them at him. Section 9 of the Bill which refers to the risk to the life or health of the mother specifically refers to an abortion only being allowed where the foetus has not reached viability. The only place in the Bill where that is not the case is the emergency provision. The Senator will disagree with me but his effort to say "including mental health" as though it is something made up is setting this country back 50 years. As we have had this debate and the amendment has been defeated, we should really move on with the legislation.
Senators
Hear, hear.
I would like to respond briefly. Nothing that I have said about mental health sets anything back 50 years. It is the Minister who has failed to address for even one moment the latest evidence, the best evidence and the evidence that was brought before the joint committee last year about what is the position as to whether abortion is ever therapeutic in mental health cases. I went through it earlier and will not rehearse it again. I am not the one skating over the facts. The best current evidence available points to the need for the Minister to make a distinction in legislation as to what is appropriate when treating a mental health challenge in this context and what is appropriate to treating a physical health challenge.
The Minister seems to wish to appropriate blame to me for seeking to amend section 10, in particular, because it refers to emergencies. I have made it very clear that nothing in the proposed amendment would prevent the treatment that section 10 will allow. It would simply create a duty to try to save the life of the baby post viability. That is a very modest request. Unless the Minister is telling me that the death of the child is actually what is wanted-----
Will the Senator just stop?
-----under section 10, that is the only way-----
(Interruptions).
It is so disrespectful.
I ask for the protection of the Chair. We are, of course, in a very difficult situation.
What about the protection of the woman?
I am sincere and fact-based in what I am saying. I am not trying to offend anybody-----
Has the Senator ever even been in a maternity hospital? They do everything they can to protect children.
Please allow the Senator to conclude. This will be put to a vote one way or another.
We are in a new situation where we have legislation for the first time that is about deliberately intending to end the life of the foetus. The situation has changed, which is why every line of this matters enormously, with great respect to my colleagues who have just heckled me. I will not be doing it to them. Please understand that at least 34% of the people of this country who voted regard what is going through as a gross violation of human rights and many others who voted "Yes" are troubled by the fact that there is no time limit for abortions under this section and that it could include grounds invoked on mental health, notwithstanding the latest evidence in that area. It cannot be regarded as irresponsible of me or unacceptable for those voters to ventilate these concerns fully. I am absolutely within my rights and have a duty to challenge the Minister on the difference between what he promised before the referendum and what his legislation actually contains.
Question put:
The Committee divided: Tá, 28; Níl, 5.
Tá
- Ardagh, Catherine.
- Bacik, Ivana.
- Burke, Colm.
- Burke, Paddy.
- Butler, Ray.
- Buttimer, Jerry.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Craughwell, Gerard P.
- Devine, Máire.
- Dolan, John.
- Feighan, Frank.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Humphreys, Kevin.
- Kelleher, Colette.
- Lawlor, Anthony.
- McFadden, Gabrielle.
- Nash, Gerald.
- Noone, Catherine.
- Norris, David.
- O'Reilly, Joe.
- Ó Donnghaile, Niall.
- Ó Ríordáin, Aodhán.
- Reilly, James.
- Richmond, Neale.
- Ruane, Lynn.
- Warfield, Fintan.
Níl
- Coghlan, Paul.
- Mullen, Rónán.
- O'Mahony, John.
- Ó Domhnaill, Brian.
- Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and Catherine Noone; Níl, Senators Rónán Mullen and Brian Ó Domhnaill.
Question declared carried.
SECTION 11
I move amendment No. 18:
In page 9, line 20, after "woman" to insert "and consulted with her, where possible".
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 9, line 22, to delete ", or within 28 days of, and substitute "or shortly after".
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 9, to delete lines 29 to 34 and substitute the following:
"(4) The obstetrician referred to in subsection (2)(a) shall make such arrangements as he or she will deem necessary for the carrying out as soon as may be of the termination of pregnancy to which the certification referred to in subsection (3) relates.".
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 9, line 30, to delete "carried out" and substitute "initiated".
Amendment, by leave, withdrawn.
Question proposed: "That section 11 stand part of the Bill."
I have not proposed any amendment to this section which relates to the issue of "condition likely to lead to death of foetus", or the unborn. As we all know, families find themselves in very tragic and difficult circumstances in that regard. The situations of these families formed much of the background to what led to the campaign to repeal the eighth amendment. My position on this matter has always been that unborn children deserve love and care throughout, until their natural end, while having deep sympathy for any family that finds itself being told that a child will die shortly after birth and will not live very long.
There are problems with providing for abortion in this situation from the point of view of those families that have lived and loved in this situation. They believe their children had a right, independent of their love and decisions for their children, to live until their natural end. I speak, in particular, to their witness. It should not be forgotten because it was a point of view that was largely forgotten and often ignored during the debate. I say that with due respect to people who travelled a different path and found themselves in a different situation.
Everybody can agree that there is a need to do everything possible to ensure top-quality perinatal hospice care facilities and resources are made available to families that find themselves in these situations. As I recall, some of what was said in the Dáil about perinatal hospice care by those who would see themselves as supporters of legalised abortion was not edifying. They suggested the calls for perinatal hospice care were intended to be obstructive in some way. I believe people on both sides of this question can agree that it is not enough just to have perinatal hospice care. It is also important that people always be informed about the support that can be made available to them if, having received a tragic diagnosis, they decide they want to see their child die naturally shortly after his or her birth. Love and care has to be available to everybody.
It is important that people be fully informed. As I said, I have not proposed any amendment to this section. My eventual vote on this section on Report Stage will be determined by how the Minister deals with other amendments that have been proposed such as those which seek to ensure there will be fully informed consent and that information will be given properly to people. My approach to the latter issue is set out in one of my other amendments, to which we will probably come tomorrow. I will not oppose this section for now.
Question put and agreed to.
SECTION 12
I move amendment No. 22:
In page 9, line 36, to delete "carried out" and substitute "initiated".
Amendment, by leave, withdrawn.
Amendment No. 23 not moved.
Amendments Nos. 24 and 25 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 24:
In page 9, lines 38 and 39, to delete all words from and including “that” in line 38 down to and including line 39 and substitute the following:
"that—
(a) the pregnancy concerned has not exceeded 12 weeks of pregnancy, and
(b) a termination of the pregnancy concerned is not being sought because of the sex or race of the foetus concerned or because of any condition or disability affecting the foetus concerned.".
Amendment No. 24 modifies section 12 which has to do with abortion in early pregnancy when, as we all know, abortion is available without having to give a reason by adding a condition that the certifying doctor is of the reasonable opinion formed in good faith that the termination of pregnancy concerned is not being sought because of the sex or race of, or any condition or disability affecting, the unborn child concerned. The amendment is straightforward and is intended to encode anti-discrimination provisions in the legislation. It reflects the fact that during the referendum the Minister made numerous commitments to the people that discrimination against people with disabilities would not be permitted under the new legislation. The amendment simply seeks to ensure abortions do not occur on discriminatory grounds that have long been recognised in society as an unacceptable basis for treating people differently.
Unfortunately, abortion for disability reasons is shockingly common in countries where it is permitted. Abortion due to gender is less common in western countries than in some cultures but it still occurs. While gender and disability require testing to be determined, both can be determined before the 12-week point, as emerged in the discussions and debates prior to the referendum. It is clearly unjust and discriminatory, even by the standards of people who regard themselves as supporters of abortion, to permit abortion based on disability or the race or gender of the unborn child.
A number of years ago in a previous Seanad I brought forward a Private Members' motion to draw attention to and raise the issue of gendercide, an appalling and scary phenomenon in parts of our world where there is a huge demographic imbalance because of the targeted abortion of girl children. This is in countries such as China, India and parts of the Caucasus. I remember reading about how it also led to other problems downstream, when because of the imbalance between the number of men and women there was trafficking of women from other countries into China and men unable to find wives were described in the culture as bare branches.
To deny people a benefit they deserve, let alone to deny them the rest of their life, based on gender, race or disability is not something that any society should countenance. This is reflected in the Employment Equality Act 1998, as amended, and other equality legislation. Any suggestion abortion on such discriminatory grounds would not happen here is a naive proposition or flows from a determined unwillingness to learn from the experience of other countries that have legal abortion.
Prior to the referendum, the Minister promised people that the Bill would not allow abortions for non-life-limiting disabilities but unless the amendment is included in the Bill he will fail to fulfil this promise since section 12 permits abortion without having to give any reason, in other words, abortion for any reason without having to state it. During the campaign, the Minister stated we had specifically excluded disabilities as grounds for abortion in the legislation. When one is specific, one makes a positive statement about something. Senator Norris might or might not agree with me.
I heartily agree with the Senator.
I am right on that one.
I largely agree with the Senator's grounds.
I know that.
Going back to the question of truthfulness which drew some comment, if we are to be truthful and say we have specifically excluded disability and if we have not specifically done so, there is a truthfulness deficit. The Minister, referring to the committee on which I sat, stated it looked at the area of disability and specifically excluded it as grounds for a termination. He also stated that while he appreciated my concern, our Oireachtas colleagues differentiated themselves from the words of the Citizens' Assembly. The Irish Independent reported that the Minister had pointed out if the electorate voted to repeal the eighth amendment in the referendum, the proposed legislation widening the grounds for abortion would not include grounds for disabilities such as Down's syndrome. He stated it would be confined to cases of fatal foetal abnormality where the unborn baby would not live. However, during the course of the referendum campaign we heard from numerous consultant obstetricians that the so-called non-invasive pregnancy test, NIPT, which consists of a blood test given to the mother at the ninth week of pregnancy, can detect the baby's DNA in the mother's bloodstream and can show the sex of the baby and whether the baby has a condition such as Down's syndrome.
I have been very influenced by personal friends and courageous people such as Martin and Sinead McBreen who were prominent during the debate before the referendum. These tests are available in Ireland. In the UK, the National Health Service offers the test to screen for genetic conditions such as Down's syndrome. In practice, the test is used to screen out children with Down's syndrome and other conditions. In the UK, 90% of children with a prenatal diagnosis of Down's syndrome are aborted. There is even a campaign called Don't Screen Us Out and it has some eloquent members of the Down's syndrome community who have spoken out publicly.
Another disturbing fact is that the NIPT test is used to detect the sex of the child and this can lead to sex selective abortions. In the UK, Conservative and Labour Party members oppose sex selective abortion. Labour Party MP Naz Shah, the shadow women and equalities Minister, stated the Government must act to stop the misuse of the non-invasive prenatal test to abort pregnancies based on gender and that it was morally wrong that women were using the NIPT test to determine whether they were pregnant with a girl and then scheduling an abortion based on the result. She called for a Government investigation into the practice. This is part of the context.
The possibility of discrimination against unborn children on grounds of disability or sex is a reality and the amendment seeks to ensure the practice is prohibited. Prior to the referendum, on the "Liveline" programme on RTÉ on 10 May 2018 it was significant to hear the master of the Rotunda Hospital, Professor Fergal Malone, describing as "the unfortunate few" those families and women who received a test result showing the detection of Down's syndrome during pregnancy. This comment caused much hurt. That characterisation was criticised immediately by one of the guests on the show, calling on him to explain why they were unfortunate to have a child with special needs. What was also significant and of interest in those days and on the "Liveline" programme was the conflict of testimony and the confusion between the contributions of other leading obstetricians in the campaign, Dr. Rhona O'Mahony and Dr. Peter Boylan, on the issue of whether it would be possible to get the results of such a test in advance of the 12-week deadline. It is fair to say suggestions it would not ever be possible to-----
As it is 8 p.m., I ask the Senator to report progress.
Progress reported; Committee to sit again.