Health (Regulation of Termination of Pregnancy) Bill 2018: Committee Stage (Resumed)

SECTION 12
Debate resumed on 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.".
- (Senator Rónán Mullen).

I welcome the Minister, Deputy Harris, back to the House.

At the conclusion of business at 8 p.m. yesterday evening, amendment No. 24 was being discussed and Senator Mullen was in possession. I call on Senator Mullen to resume his contribution.

As the Minister and colleagues will recall, this amendment has to do with the provision of abortion under section 12 in early pregnancy. It provides for additional text which would ensure that a termination being sought because of the sex or race of the foetus concerned or because of any condition or disability affecting the foetus concerned would not be certified where the medical practitioner in question is of the reasonable opinion, formed in good faith, that such is the reason for the termination.

It goes without saying, as with all the amendments that I have tabled and that Senators Ó Domhnaill and Coghlan have seconded, that we are trying to make a bad situation better.

The purpose of the amendment is not to nullify completely the provision of abortion at that 12 weeks stage. I will not repeat what I said yesterday when I recounted the international context in which abortions are sought on gender grounds in particular. The amendment is fairly self-explanatory but one thing is clear. It would have the effect of delivering on a core promise made by the Government in advance of the referendum that abortion, on the grounds of disability, would be specifically excluded by this legislation. Without this amendment, that is not the case, and that puts question marks over the Government's credibility and honesty.

The entire tenor of this debate has been changed by the advent of what is referred to as non-invasive pregnancy testing. Tests such as the Harmony test can tell the sex of the baby but also screen for genetic conditions such as Down's syndrome, Edwards syndrome and Patau syndrome. Major focus was given to this issue during the referendum campaign. In my Second Stage contribution, for which I accept the Minister was unavoidably absent from the House and which was not responded to by either the Minister of State, Deputy Catherine Byrne, or the Minister of State, Deputy Jim Daly, I stated that the Minister said he had specifically excluded disability as grounds for abortion in the legislation. His former party colleague, Deputy Fitzpatrick, mentioned recently that the Fine Gael head office had produced a graphic for Twitter during the campaign which stated that termination on grounds of disability is prohibited. The Minister used the words "specifically excluded" and Fine Gael said "has prohibited". Will the Minister to point out to me where that is in the legislation? Legal experts, and there are a few in the House, would tell him that for legislation specifically to exclude or prohibit something, there must be explicit language in the Bill which excludes or prohibits. Expressio unius est exclusio alterius is the Latin phrase. It is long established. The expression of one thing is the exclusion of the other. For something to be banned, the legislation needs to state specifically that it is banned, but no such language exists in the Bill that bans abortion on the grounds of disability. If it exists, will the Minister please point it out, as I have asked? I will gladly withdraw the amendment if he can do so, but if no such language exists, why can the Government not support this amendment since it explicitly implements the pledge made by the Minister and by his party during the referendum?

Likewise, why not include a provision outlawing abortion on the grounds of gender? I gave the international context as to why that is a relevant issue, that it is quite close to home in terms of our nearest neighbour and so on. The Minister has trumpeted this legislation as a great victory for the equality of women, but what kind of victory is a law which would allow women to be selectively aborted for the sole reason that they are women?

Under equality legislation, which I will not go through as I did that yesterday, it is illegal to discriminate on any of nine grounds, but there is a clear possibility of discrimination on the grounds of disability. Any suggestion that abortion on these grounds would not happen here is a naive idea. It is important to say that because there has been a certain reliance on language that seeks to get into the mind of the proponents of these amendments to say that this is about their lack of trust and that people are not like that. Such charges are unworthy of a Minister. They are unworthy in a carefully functioning democracy which is about the scrutinising of legislation to avoid unintended consequences. We do not legislate for a society that is composed of saints because there are no saints in society. We legislate for something that may not happen but which could happen. Good legislation is legislation which prevents all foreseeable unwanted consequences and bad legislation is legislation that leaves open the possibility of unforeseeable, unwanted consequences. These amendments are not a judgment on anybody and I will challenge again any suggestion that that is the case. This is about reality. It is about a promise made by Government. The honour of the Government and its credibility depend on its ability to show that it has kept its promise, which is that abortion on the grounds of disability would be specifically excluded.

There was an examination in respect of sex selective abortions by the Nuffield Council on Bioethics, a UK Government advisory body, which is roughly the equivalent of the National Advisory Committee on Bioethics established by Senator James Reilly when he was Minister for Health. It warned earlier this year that advances in technology around gender screening meant that the UK could become a haven for sex selective abortions. I quoted yesterday MPs such as Naz Shah.

We do not, nor should we assume, that we are morally superior to our UK neighbours. We are human beings the same as everybody else. At the Joint Committee on Health, Dr. Clíona Murphy from the Institute of Obstetrics and Gynaecology, IOG, admitted in my presence, in general terms, an expectation that abortion trends in Ireland might roughly mirror those of our nearest neighbour, particularly Scotland. The cat was somehow let out of the bag a couple of months ago when there was a reference to there being 11,000 abortions in Scotland, which has a population similar to ours. That was the first time I heard, and I certainly did not hear it before the referendum, an acceptance that there could be an increase in abortions as a result of this law. That was an unsayable from the point of view of the Yes campaign before the referendum but we are being allowed to contemplate that reality now. Dr. Murphy referred to it as evidence of an unmet need. It seems that all those abortions that did not take place in the past, the women who did not suffer abortion regret and the lives saved are not good news. They are just evidence of an unmet need up to now.

We should not pass a law which allows women to be discriminated against before they are ever born to the extent that they may not even be allowed to be born because they are women. That would be reprehensible. This amendment would remedy that. The sad reality is that the rights of unborn women are to be sacrificed in the name of the rights of born women, along with the right to life of unborn children generally, medical ethics and rights to conscientious objection.

On the subject of abortion on the grounds of disability within the 12 week limit, the reassurance given that this could not happen under this legislation was predicated on earlier and now defunct arguments that disability could not be diagnosed before 12 weeks. When the debate adjourned last night, I was coming to the conclusion that occurred during the campaign in the contributions of Professor Fergal Malone, Dr. Rhona O'Mahony and Dr. Peter Boylan around the question of whether disability could be diagnosed within the 12 week period. The fact is that screening is now offered in Ireland that detects abnormalities before the 12 week cut-off, making the non-existent ban very mute indeed. Any arguments about it not being necessary because disability could not be detected prior to 12 weeks are rendered mute.

In the Rotunda Private, where Professor Malone works, the foetal DNA test is offered at nine weeks’ gestation and, to use his words on "Liveline", results come back typically in a week. These are screening tests with an accuracy of 99.9%. A further diagnostic test is advised in those situations, but one can imagine that people who would desire an abortion in such circumstances would not take a second test.

We have to legislate on the basis of a decision we must take about whether it is desirable that a decision to have an abortion could be countenanced and supported even where there is knowledge that the reason is for disability. Everything the Minister and the Government said in the run-up to the referendum was to the effect that that would not be allowed.

Since the legislation clearly allows it, where is the integrity in claiming that this has been specifically excluded when the medical and diagnostic reality, combined with the openness and unamended form of section 12 abortions to date, provides for the exact opposite of what the Minister and the Government promised?

I fully understand Senator Mullen's wish to exclude abortions on the grounds of sex. I think we would all agree that it is a horrible practice. While it certainly exists in India, I was not aware of any threat of it in Ireland. However, as Senator Mullen says, it is important in legislation to contemplate the possible, even if it is unlikely. The same is true of the race of the foetus.

Where I am in some difficulty, and find myself in a dilemma, is on the question of disability. I have several friends with Down's syndrome and they are wonderful, warm, affectionate people who love music. They are a difficulty but also a joy to their families. No one would wish them out of the way and I am sure the Minister does not wish them out of the way either. I do not think this Bill contemplates abortion for the purposes of disability. However, I will say, as I believe in being honest, that I can understand circumstances in which a mother would find it impossible to cope with a disabled child. For example, if she had another disabled child or there were already two disabled children in the family, I can completely understand that she would find it impossible to cope with yet another child with disability. I say that although I have a sensitivity towards the disabled and understand that people who are disabled have a great nervousness and fear that people in their situation could be just eliminated. However, there is also the human factor. People may be in a situation where they cannot afford financially to look after another child, cannot afford to give the overwhelming amount of time involved in caring for a disabled child, or may find that their obligations to their existing children mean they do not wish to contemplate a future in which they have to divert a large part of the family resources to looking after a disabled child. I know that it is a very unpopular and controversial thing to say but that is what I think. We must look at the human reality. Although I am quite certain this Bill does not contemplate abortion for people who are threatened with disability, in human terms one must be able to understand the attitude of those who decide they cannot take any more or cannot afford another disabled child in emotional, financial and family terms. In my opinion, that is a human situation.

I support the amendment and I will add to Senator Mullen's remarks. The amendment seeks to ensure that unintended consequences are mitigated and that the legislation could not in some way be used for an unintended objective outside that which the legislation sets out to achieve. Technology is advancing and continually evolving in Ireland or elsewhere. The legislation before us will potentially define our stance on this issue for a generation or two. Technological advances in that timeframe will be much greater than they are today. Therefore, the detection capability that arises from that will also change. It would be regrettable if one of the unintended consequences of the Bill were that abortions could for some reason occur due to the sex. I am not saying that will occur but it could be an outcome and no one can argue to the contrary because we cannot predict what will happen.

The area of disability concerned many people during the course of the referendum campaign and subsequently. I agree with Senator Norris. We all know people with disabilities, including people with Down's syndrome. I have some very good friends with Down's syndrome who make an exceptional contribution to their local community. We all know people who have done that. This legislation is not framed in a vacuum and we must learn from what happens in other jurisdictions.

In 2016, the United Nations Committee on the Rights of Persons with Disabilities published a report on abortion and the rights of persons with disabilities. The committee's criticism of the UK Government for the lack of progress on a range of disability rights issues made headlines. The report also contained an argument around a controversial issue related to the UK's policy on disability selective abortions. It stated:

The Committee is concerned about perceptions in society that stigmatize persons with disabilities as living a life of less value than that of others and the termination of pregnancy at any stage on the basis of fetal impairment.

The Committee recommends that the State party amend its abortion law accordingly. Women’s rights to reproductive and sexual autonomy should be respected without legalizing selective abortions on the ground of fetal deficiency.

This is not a new or unexpected development. The United Kingdom is merely the latest country to feature on a list that includes Austria, Hungary and Spain to which the committee has recommended reforms on conditions that allow for later term limits in abortions relating to disability. The UK's Abortion Act 1967 prohibits most abortions after 24 weeks' gestation. However, section 1(1)(d) of the Act provides that where the child would be seriously handicapped - this is Ground E in official UK abortion parlance - the limit does not apply. Therefore, in the UK abortions can theoretically take place up to birth. In 2016, 3,208 Ground E abortions were carried out in the UK, comprising approximately 2% of the overall abortion figure. Of these abortions, 225 happened at 24 weeks' gestation or over, that is, over the limit for children without disabilities. Between 1995 and 2016, the incidence of Ground E abortions carried out in Britain after 24 weeks' gestation increased by 263%.

In its 2016 abortion report, the National Health Service in the UK warned that these figures should be treated with caution as it is likely that there is a significant undercount, so the data may not be fully representative of the rate of abortion on those grounds.

In 2014, it was discovered that half of the ground E notifications to the National Health Service were missing. Despite some improvement, the pattern continues today as I understand it. These figures include what Irish abortion activists would term as abortions for fatal foetal abnormalities such as anencephaly, contradicting arguments that the concepts of fatal abnormality and disability are never conflated.

An examination of some of the other conditions that count as abortion-worthy disabilities in England and Wales is revealing as well. For instance, in 2016, the figures available from the NHS indicate that nine abortions were for cleft lip and cleft palate and that 706 abortions were carried out in the case of Down's syndrome diagnosis. Only a few hundred of these were late-term abortions, not worth reporting on according to the NHS. They were not worth recording. My answer to that is that to turn a blind eye to discrimination is often to collude in it.

On a point of order, I do not mean to be rude but I understand that this is a matter that is simply not contemplated by this Bill at all, whatever the situation in Britain. There is a situation in Britain where disability is a ground for abortion but it is not here so we ought to get on with the real Bill. With the greatest of respect to my colleagues, we have ventilated this to a certain extent, which is reasonable, but we should not go on about it because it is not part of the Bill and it is not contemplated by the legislation.

That is not really a point of order. I ask Senator Ó Domhnaill to conclude.

I understand where Senator Norris is coming from and I intend to get to the point where I will refer directly to the Bill but giving this context is important because it is setting the contextual picture on what could happen. We are trying to mitigate against unintended consequences which can come with all legislation. We are trying to support the Minister in mitigating against those. We are trying to provide the context from the United Nations report which looked into the situation in Britain because we do not want the same findings in the United Nations report on the rights of persons with disabilities castigating Ireland because of our abortion laws and those unintended consequences which we are trying to mitigate against with this amendment.

The United Nations body recommends that our closest neighbour changes an abortion law, and that is worth noting. Not one advocate on the pro-choice side noted, welcomed or referred to this United Nations report. Perhaps if the report was leaning the other way I am sure it would have got great coverage all over the media but it was not reported at all, which raises its own questions. When we turn to the Irish context, a major issue here and the purpose of this amendment is around the potential impact or effect the Bill will have on the abortion rates of unborn babies with non-fatal abnormalities or diseases. Several very senior doctors seem to have no objection in principle to the law allowing abortions in such cases. That is fine, that is their right and they have stated so publicly.

These abnormalities can now be detected before the 12-week cut off, as was pointed out by Senator Mullen, and that is where it becomes relevant in the Irish context because that is when terminations can take place for any reason. Three of the doctors, including Professor Fergal Malone and Dr. Jennifer Donnelly of the Rotunda Hospital and Dr. Rhona Mahony, master of the National Maternity Hospital, outlined their views on this. Talking at an event organised by Together for Yes, Dr. Donnelly called for the repeal of the eighth amendment at the time, citing what she called complex fatal abnormalities, which would include conditions that would not necessarily lead to death soon after birth. Dr. Mahony stated on the RTÉ "News at One" days before the referendum that non-invasive prenatal testing, NIPT, is offered in her hospitals. She stated that the purpose is to prepare families for the risk that their children might suffer some disabilities, but she admitted that when anomalies are detected, an abortion often follows. During the interview, Dr. Mahony pointed out that the update of the test is increasing and that in her opinion, most women now avail of the test for reassurance purposes. She also stated:

Given that Down's syndrome is quite rare, most women will be reassured. I think it is very important to note that where we have antenatal diagnoses, for example in the Rotunda figures 50% of women would choose to continue a pregnancy knowing their baby has Down's syndrome - 50% will choose not to continue.

Again, no principled objection was offered from the doctors concerned. On the other hand, Professor Malone, the master of the Rotunda Hospital, spoke on "Liveline" about the foetal DNA testing offered in his hospital. I listened back to the clip late last night and like the other two doctors, he did not raise any principled objection to abortion in this scenario.

Those who defend the Bill before us claim that abortion will not be allowed on the ground of disability. However, under this Bill, abortion is allowed for any reason before 12 weeks. Therefore, what happens if disability can be detected before the 12-week gestation period? This is the crucial question which has not been answered.

As has been outlined in this House, in the other House and by the advocacy groups, screening is now offered in Ireland that detects abnormalities before the 12-week cut off, making the apparent ban moot. In the Rotunda Private Hospital, where Professor Malone works, the foetal DNA test is offered at nine weeks gestation and results come back, according to Professor Malone, typically in one week. He further stated that the test is 99.9% accurate. A further diagnostic test is advised, but not necessary. One can imagine that some couples who are keen to have an abortion in such circumstances will not take a second test, particularly if the 12-week limit puts them under time pressure in that regard. The same test, known as panorama, is offered in other Dublin clinics such as the Beacon Hospital or the Royal College of Surgeons. Additionally, in the Merrion Fetal Health clinic, where Dr. Mahony also works, the harmony test is offered at ten weeks and results arrive within seven days.

In addition, in Cork, a new company called P4ML was set up in 2017. It offers non-invasive prenatal testing, the NIPT test, at nine weeks gestation and results are available within two to four business days, confirming my argument on the technology advancing all of the time. On the P4ML website, Professor Louise Kenny appears as a testimonial. She was one of the most vocal doctors campaigning for the removal of the eighth amendment and advocated her position on television and radio debates before the referendum. P4ML also supported the repeal of the eighth amendment. I wonder if economic reasons were attached to that.

Clearly, there is a grave danger here when we have such advances in testing or scanning. We all welcome that-----

The Senator needs to be careful about what he says about certain doctors in this House.

I did not refer to any doctor. I referred to a private company.

You did refer to doctors and the transcripts will show same. The Senator needs to be very careful and he is treading on dangerous enough ground.

The transcripts will show that I referred to a private company named P4ML based in County Cork which, as I mentioned, campaigned to support the "Yes" campaign in the referendum and presumably there would be economic advantages for doing so.

That is a fact.

No, it is not.

Senator can we try to stick to the amendment?

It is an economic fact.

It is speculation. It is outrageous.

On a point of order, speculation as to motivation is spurious speculation. It is not a fact.

I request the Senator to continue on the amendment.

Technically, my point is correct.

I listened back to the doctor. I have the utmost respect for all of these doctors. They have their own opinion and they are entitled to it, just as I am entitled to my opinion and the Minister is entitled to his. I know the Minister has a difficult job to do and this is not an easy piece of legislation to steer through both Houses. We all have an opinion. I have the greatest respect for those who stand up and have a pro-choice argument to make. At least they are here and making the argument. They are exercising their right. I am not trying to make political points. I am trying to articulate facts. The facts are important.

If there is a loophole in the legislation or an unintended consequence, where one can have screening at nine weeks, a result back in two or four days, confirming whether that baby may or may not have Down's syndrome with a 99.9% accuracy rate, then would the Minister not concede that some babies who have Down's syndrome will be aborted and the legislation will actually facilitate that? If that is the case, that is a loophole in the legislation. It is a shortcoming that needs to be addressed. The only way of addressing it is by way of accepting this amendment. To do otherwise is to do a disservice. We are willing to sit down with the officials between now and Report Stage, if the Minister is willing to work with us on this. Otherwise, we will have to press this amendment, which we do not want to do. We are trying to be helpful. I understand the Minister has a job to do, but we have a job to do as well. We will try to do it in a respectful manner.

I think the first thing we have to do when speaking about this issue is to speak in a sensitive manner. I am not suggesting that colleagues to date have not done that but obviously there are people watching this debate who have a disability, or are the parents of children with a disability. During the course of the referendum campaign it caused me significant concern that there was an implication that the only reason some children were born with a disability in Ireland was because of the eighth amendment. I think that the mothers and fathers whom I know, and we all know them, who raise their children with such love, compassion, dedication and care for them more than anything else did not do that because of a line in the Constitution. Whether the Senator or I think it is a good or a bad line, they did it out of love. We need to be very careful that we do not suggest that anything we do in here or in the Bunreacht would determine the decisions those parents make. We debated this issue at length in the other House and it is right and proper that Senators can table it in this House as well, but I will not be accepting it for the same reasons that I outlined in the Dáil when a very similar amendment was put forward by Deputies. It is important to state that the Bill, as drafted, does not provide for terminations of pregnancy to be carried out on the grounds of sex, race or disability.

We need to be very careful going down this rabbit hole of suggesting that because the Bill does not say it means that it is allowed. That would be a very peculiar legal precedent. The Bill does not mention hair colour but it is not a ground for termination. By not including things in legislation, we are excluding them. This Bill sets out very clearly what is allowed, and what is not allowed is excluded. It is illegal. We will be getting to a debate later and I know I will disagree with some of my colleagues on this, but there are serious criminal sanctions when one breaks the law and carries out a termination, above and beyond those grounds as well.

The Bill does provide for a termination of pregnancy to be carried out only in cases where there is a risk to the life or serious harm to the health of the pregnant woman, where there is a risk to the life or serious harm to her health in an emergency, where there is a condition present which is likely to lead to the death of a foetus either before or within 28 days of birth or where the pregnancy has not exceeded 12 weeks. Ending the life of a foetus otherwise than in accordance with these provisions is an offence which may be prosecuted.

My starting point in the drafting of this legislation and then publishing a general scheme that the people of Ireland could consider before they voted, was what the all-party committee had looked at. The all-party committee made a very conscious decision and I have no doubt from watching those debates and reading the report that it was a conscious decision to exclude disability as a ground for termination. The decision of that committee was to exclude it.

The committee also made another very important finding. It made a recommendation that we should allow termination in early pregnancy up to 12 weeks without specific indication. My very honest assessment of this amendment is that it would intentionally or unintentionally make that early pregnancy head of this legislation inoperable. People have said already that people did not vote on the heads of the Bill. Maybe that is true and maybe it is not, who knows, but whether one was in favour or against the referendum, the issue of 12 weeks without specific indication or very crude and offensive language such as on demand, was put on posters and was debated up and down the length and breadth of the county so the people of Ireland were very much aware of it.

People thought about it very carefully and they thought about it long and hard. It was not an easy decision for many people. They teased through the 12 weeks and why it was set at 12 weeks and this was a big feature of that referendum debate as well.

We as a people have decided on repealing the eighth amendment in the knowledge that if we do so, the Government will bring forward legislation that will allow for termination in early pregnancy up to 12 weeks without specific indication. To amend the legislation in the way the Senator is endeavouring to do today would make that inoperable because his wording is actually saying is, "a termination of the pregnancy concerned is not being sought because of...". How does one prove the "not being sought?" Are we going to psychologically assess the woman, look into her deepest darkest thoughts? How are we going to determine that thought process?

We made a conscious decision to trust women in obtaining medical advice from their doctors to access early termination in our country without specific indication. To do anything else would be to deviate from that. I need to be clear. This Bill does not allow termination on the ground of disability, race or sex. The race or sex grounds I find even more spurious in terms of the early pregnancy issues but it does not allow that. What the Bill does allow is that a woman is not second-guessed, judged or asked to give a reason pre-12 weeks. To alter that in any way would be to substantially divert from what we told the people of Ireland we would do and what has been in the draft Bill published in March and every version of it published ever since and was a key finding of the Oireachtas committee's report.

I completely agree with the Minister. It was perfectly clear that this 12-week period was envisaged. I said on the record of the House that I thought the Government was foolish to do so because I thought it was too honest. I thought it would frighten people off. One would have to be deaf, blind, dumb and batty not to know that this period was 12 weeks. Everybody knew and that is what they voted on. I have not the slightest doubt. I cannot prove it statistically but that is what they voted on. I said the Government was foolish, but I was wrong.

There are one or two things that the Minister has said that need very specific working out. I might start with the last point and I am happy to go through it with the Minister, if he is happy to go through it with me.

The Minister says that he finds the grounds that the Bill might permit without specifically providing for abortions on grounds of sex and gender more spurious. Why does he say that?

Does the Minister wish to respond directly to the question?

I am not going to do a back and forth response like what it would be if I were in a courtroom but I will answer that question. When a pregnant woman goes to her GP in early pregnancy, that pregnant woman often has not obtained any information on the sex or race of her child. What the legislation is endeavouring to do is to trust the woman to make the decisions that are best for her and her family at that early stage of her pregnancy.

I do not think there is any evidence to suggest that this legislation is attempting to do anything other than that. The Senator is attempting to put in place further hurdles and measures that would make the pre-12-week part of this legislation inoperable. I respect the fact that the Senator fundamentally, vehemently and sincerely opposes this ground. I fully accept that, but I fully support the ground. I am not going to do anything, or amend the legislation in any way, that would make one of those key grounds inoperable.

Nobody is trying to put the Minister in a courtroom. Specific questions were put and answered on Committee Stage in the Dáil. Sometimes that is the only way to get clarity. Each time the Minister says something, he puts words in my mouth that have not been said-----

-----or he makes allegations about the amendment or the intent of the amendment that simply are not true. For example, it would not make-----

It is about the effect of the amendment.

Can we hear the Senator without interruption? Can we stick to the amendment?

The specific exclusion I am proposing would not make section 12 inoperable. My proposal would, in line with the test that is already provided for in section 12, ensure that a doctor does not provide certification if it is his or her "reasonable opinion formed in good faith" that the abortion is being sought on the grounds of disability, gender or sex. That does not make section 12 of this legislation inoperable.

It simply imposes a specific duty on a doctor in circumstances in which certain knowledge has come to his or her attention. The Minister cannot twist that.

I do not need to twist it.

Words have ordinary meanings. The Minister brought out the contradiction in the joint committee's aims when he rightly mentioned that it wanted to see abortion legalised without reason up to 12 weeks and also wanted to see a specific exclusion to be provided for in the case of abortion on the grounds of disability. Those two aims are incompatible where information arises that causes disability, sex or gender to be the reason for the abortion being sought. The Minister has an opportunity to adjudicate between those two situations. I understand very much what Senator Norris has been saying here. I went over it to try to establish clearly in my mind what he meant when he said that the Bill does not contemplate abortion on the grounds of disability. I am not going to put words in the Senator's mouth.

No, that is fine.

He will confirm that I asked him whether he meant that the Bill does not contemplate it in the sense of not intending abortion on those grounds, or that the Bill does not contemplate it in the sense of not even permitting it by omission.

The Senator told me that his view is that it is not contemplated in both senses. That is where the Senator and I have an honest disagreement. I think it is very obvious, in light of the evidence that Senator Ó Domhnaill and I have put before the Minister again, that circumstances can arise in which there will be knowledge of disability prior to the moment when the permitted time limit for the section 12 abortion without reason has elapsed. That is fact. As I have raised previously in the context of later-term abortions, the provision that is being made for abortion on the ground of health does not distinguish between physical and mental health. In light of the evidence that mental health is not improved by abortion situations - I referred to this evidence yesterday - the Minister's Bill is not protecting against a situation where the tragic or challenging discovery of disability, if one wants to use such words, could be said to trigger a mental health challenge for the person involved.

It is true that the law being proposed here is different from the law in Britain, as Senator Norris has said. Britain's very cruel provision on disability expresses no time limit whatsoever where disability is diagnosed. As Senators will be aware, abortion is criminal in Britain but is not prosecutable under various exceptional headings. The one in relation to disability is particularly cruel and unjust. We have heard about late-term abortions for disabilities as simple or as uncomplicated as a cleft palate. The Minister's Bill is cruel and irresponsible in its vagueness because it provides for abortion without reason up to a 12-week limit without insulating against the possibility that a vulnerable person in such a vulnerable situation might seek an abortion on the grounds of disability. Before the referendum, the Minister gave a commitment to provide for a specific exclusion in the case of disability, but he cannot deny that it is not specifically excluded. He may claim that his Bill does not intend to legalise abortion on the grounds of disability. He can truthfully say that and I cannot challenge him, but I can question the honesty of the Government when the Minister tells me that this Bill does not specifically exclude disability because he has failed to specifically exclude the invocation of disability as a ground under section 12, section 9 or even section 10. At the bar of history, this will not be a difficult one to resolve. The words have clear meaning.

Senator Norris reminded us all of something that is important here - how difficult it is for families who find it impossible to cope, including and perhaps especially families that already have a child with a disability. Those who are seeking to exclude abortion on the grounds of disability can only do so with integrity, in my view, if they are on board with extra support and care at taxpayers' expense for families that deal with this challenge. I hope that in my ten or 11 years here to date, I have been on the side of the angels in that respect. We can never do enough in this regard. The point of legislation here is not to pretend that people do not find themselves in vulnerable situations; it is precisely to deal with what happens when people find themselves in vulnerable situations. The difference of opinion in this Chamber is about what constitutes compassionate care in this situation. For some Senators, compassion in this situation points to acceding to a request for abortion. For me and for some other Senators, and for many people in this country, the only way one can be compassionate is if one is consistently and inclusively compassionate. This means that no child is left behind, not even an unborn child. We have a greater obligation to be supportive of people and families when disability is diagnosed in pregnancy. It is precisely because of the vulnerability that this situation brings about that the law needs to be especially clear. That is exactly what this legislation is not - it is not clear.

The Minister rightly said that we need to talk about these matters in a sensitive manner. He took umbrage at the implication that the only reason some children were born in the past was because of the eighth amendment. He paid tribute to those families that give life to their children out of love. With the greatest of respect, that is seeking to obfuscate the issues by reference to an emotive argument. Nobody even disputes the love that parents have when they find that they cannot cope, even if they make a choice that I would disagree with. It is an indisputable fact that our constitutional protection for the unborn coincided with dramatically lower abortion rates, according to the best information available, than those that exist in the parts of the world where abortion is legal - especially, but not exclusively, our nearest neighbour. There was a radical difference in the incidence of abortion of children where conditions such as Down's syndrome had been diagnosed in utero. It can be claimed that the difference was love - that the Irish were more loving than other people. I would like to think that was the case. I can even agree that it may have been the case. However, it is not a basis for making law.

No responsible Minister for Health would make law on the basis that the people of one country are more loving and kind than the people of another. We all know that the reason we have laws is because laws help to shape choices. They signal the community's desire in respect of certain choices and so as not to be hypocritical, they must be backed up by extra support and resourcing for people who we ask to make a particular choice. The Minister suggests that the issue of hair colour is on a par with the issue of disability. He says it is no more inappropriate that the Bill does not specifically exclude abortion on the grounds of hair colour than on the grounds of disability. To suggest that-----

Senator Mullen is twisting it.

It is a very irresponsible comment to make, because the reality is that abortion is associated with disability throughout the world. There is a vulnerability that this Bill is not currently addressing. The Minister made a particular promise to the electorate that he has not kept, namely, the specific exclusion of abortion on the grounds of disability. The Minister promised to be specific. The best claim he can make is that he does not intend for his vague, open provision for abortion to be used in response to a diagnosis of disability. The Minister may not intend it but he has absolutely no control over how laws will be interpreted or applied in a particular context. I suggest to him that it is at best extremely irresponsible not to follow through on the commitment he gave to explicitly and specifically exclude abortion on the grounds of disability.

I am watching the clock. We have spent one hour and 25 minutes on this amendment. I will allow some more debate but I will not allow it to go on for another hour and 25 minutes, in case Senators think I will. Senator Noone wishes to make a comment. I hope it is helpful and she is not antagonising.

I sat here for the entire day yesterday and I did not make one comment. It was very difficult to do that when I heard a lot of the comments that were made. I will be very brief. The committee, which I chaired, specifically excluded disability as a grounds on which abortion should be allowed. That is not for debate. That is a fact and was in our recommendations. The committee's report underpinned this legislation. While there were certain changes, which the Government was quite entitled to make on the advice of the Attorney General and for other reasons, that fact remains. There is one fundamental point that certain Senators are missing. The Minister is being accused of not fulfilling his promise to the Irish people. I firmly believe the Irish people were clearly aware of the terms on which they were voting. I agree with Senator Norris on this point. The Bill was discussed in detail by those on both sides of the argument, especially on this particular point.

With such spinning and twisting of facts to suit a certain argument, it is like "Groundhog Day" in here.

We have had this debate. We want the legislation to be passed and no efforts to twist what has happened in reality are going to be effective. This is about trusting women and their doctors to make decisions that suit them. At the end of the day, most pregnancies are very much wanted in this country, like in every other country in the world. To be honest, it is very hard to sit in this Chamber and listen to this prevailing distrust of women, minute after minute and hour after hour.

Does the Minister have anything further to add?

The Minister has completed the discussion. I will allow Senators to continue a little further, but I will not let this go on for another hour and a half. I will put it to the House. I will give Senators a few minutes but the Minister has decided that he has given a sufficient response and he is not contributing again. I ask Senator Mullen to be wary of that.

I understand that and I am grateful to the Cathaoirleach. As I said yesterday, I do not want to repeat myself in any way and I have tried to avoid doing that. However, everything that is important has to be put on the record because lives are at stake here.

My colleague, Senator Noone, rightly points out that the committee report undergirded the legislation. It is true. It was the springboard for the legislation. However, I was fair and accurate and was not doing any spinning or twisting of facts when I said that there is a contradiction between the committee's desire to exclude abortion on grounds of disability and its other desire, which I disagreed with, for abortion without reason up to 12 weeks. Moreover, "on demand" is not insensitive language, although it is slightly inaccurate language because there is a 72-hour window. That point I would concede but the language is far from being crude. It expresses in layperson's language a situation where one does not have to give a reason and is entitled to abortion on the basis of a demand. Again, accusing people of using crude language seems to be an effort to "emotivise" the debate, if such a word exists.

I will have to defer to Senator Norris on anything to do with words.

Senator Mullen has coined it.

In regard to the suggestion of distrust in women, nobody distrusts anybody. Laws are about dealing with realities where people are vulnerable. According to that logic, a law that prohibits abortion in any situation means that we distrust women. That simply is not a basis for argument. The opposition to abortion springs from the fact that people, women, find themselves in vulnerable situations. The position I have been trying to advance is that the compassionate response is to care for both persons. That is not an issue of trust. It is not an issue of mistrust or distrust. It is an issue of recognising vulnerability and providing for what the community wants to happen in those situations. As I have said, I am very disappointed that the Minister has not been open to the necessary clarification that we have requested. As I have said, there will not be much doubt at the bar of history about what the Minister promised and what he is delivering by its absence in this legislation.

I will give Senator Ó Domhnaill the final word. I remind him that the Minister is not contributing again.

I thank the Cathaoirleach. I appreciate the opportunity. I appreciate that the Minister has spoken and I respect that. I want to attach a personal story to this issue before we conclude on the area of disabilities.

Is the Senator speaking to the amendment?

Senator Ó Domhnaill may do so if it is relevant to the amendment. Senators cannot presume it is not.

It is. Perhaps some would deny me that right.

He would have said it by now.

Senator Ó Domhnaill is entitled to establish whether it is relevant. I will referee that decision.

I am extremely grateful for the objectivity of the Cathaoirleach and I thank him for that protection. What we raised here were facts. It is a fact that the three doctors to whom I referred stated that screening can be carried out at nine weeks. The technology exists. It is also a fact that the results can be back within four days or a week. That is well within the window of 12 weeks. I know of one particular hospital in Dublin where a screening was provided for a pregnant woman, a relative of mine. The screening showed that the unborn child had a very high probability of being born with Down's syndrome and that she should consider an abortion. Thankfully she did not take that route, and today Simon is three years old. He is a bundle of fun. The reason we are raising this particular amendment is to allow children like Simon the opportunity to live and breathe among the rest of us. It is wrong to shout us down because we have that conviction. It may not rest easy with some Senators' position and that is fine. I acknowledge that Senator Noone did an awful lot of good work, as did all the members of the committee. It was not an easy issue to deal with. She is absolutely right; the committee excluded disability. That is fine. She is right. I agree with her. The Bill does not make reference to disability.

By being indefinite on this the Bill creates the potential for children to be aborted on disability grounds because the legislation is not otherwise prescriptive. That is why we are tabling this amendment. I feel passionately about it. Any one of us at any point in our time before we were born could find ourselves in the same position.

We would not know. It would not make any difference.

I have the opportunity to raise it here today and I am doing that. I appeal to the Minister to close off the loophole because there is one. It is black and white. We have to agree on that at least. Not to agree on that would be to say that the doctors, Rhona O'Mahony and Fergal Malone are wrong in their contention that they screen at nine weeks because it is a proven fact that screening can be done at nine weeks. Would the Minister at least agree with me on that?

Would the Cathaoirleach consider fining speakers for repetition?

Amendment put:
The Committee divided: Tá, 6; Níl, 32.

  • Byrne, Maria.
  • Coghlan, Paul.
  • Mullen, Rónán.
  • O'Mahony, John.
  • Ó Domhnaill, Brian.
  • Wilson, Diarmuid.

Níl

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Dolan, John.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McDowell, Michael.
  • McFadden, Gabrielle.
  • Nash, Gerald.
  • Noone, Catherine.
  • Norris, David.
  • O'Donnell, Marie-Louise.
  • O'Reilly, Joe.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • 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. 25:

In page 10, line 3, to delete “matter” and substitute “matters”.

Amendment, by leave, withdrawn.

If the question on amendment No. 26 is agreed, amendments Nos. 27 to 29, inclusive, cannot be moved. Amendments Nos. 26 to 34, inclusive, are related. Amendments Nos. 27 to 29, inclusive, are physical alternatives to amendment No. 26. Amendment No. 29 is a physical alternative to amendment No. 28 and amendment No. 30 is a physical alternative to amendment No. 29. Amendments Nos. 26 to 34, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 26:

In page 10, to delete lines 4 to 9.

The three-day limit imposes a harmful and unnecessary limitation. It will inhibit access for pregnant people who will struggle to attend multiple doctors' appointments and it should be removed. If the mandated waiting period is not removed, the Bill should be amended to allow doctors to waive it where observing the waiting period would otherwise mean that the woman is denied access to abortion. Yesterday, there were several instances given, which I will not recite again, where because of the circumstances, a woman might be just over the period. I believe this should be got rid of, straightforwardly.

We have tabled five amendments in this group which all relate to access to terminations in early pregnancy. My main concern is the three-day waiting period and the way in which pregnancies will be dated. Amendment No. 29 would allow the three-day wait to start from the moment a woman requests the appointment with the medical practitioner. Amendment No. 31 would allow for the three-day waiting period to be waived where the three-day wait would result in the pregnancy exceeding 12 weeks, making a termination on this ground thereafter illegal. Amendment No. 32 would provide for a woman living in a situation of domestic violence or where, as a result of her living circumstances, her life or her health are under threat, to have the three-day waiting period waived and access a termination. Amendment No. 33 would allow for the three-day wait period to be waived where the woman had already met a barrier to her care from a conscientious objection.

The complete inflexibility of the three-day waiting period is a serious problem and one which we cannot stand for. I watched the Minister respond to this issue in the Dáil. He has consistently said that because the waiting period is in the draft legislation it must stay. I do not agree that this should be the case. This legislation was written before the referendum and before we became aware of the extraordinary appetite for change when two thirds of the electorate voted to remove the eighth amendment. This is a different landscape from the one we were in when the heads of the Bill were written. That cannot and should not be ignored. However, if the three-day waiting period is to stay, surely we can find some flexibility to allow it to be waived in extraordinary or extenuating circumstances. That is where these amendments come from.

Conscientious objection is a barrier to care. The amendment would ensure that the three-day waiting period does not apply to a woman whose first appointment with a doctor resulted in an objection to her care. It is not enough to say that the helpline will direct women towards those GPs who will provide a service. The first port of call for any woman, especially women who are on medical cards, would be her GP. She would call her GP first for direction and care. Domestic violence should be grounds for a waiver of the three-day waiting period, and living circumstances in general should also be included.

The three-day waiting period should start from the date the request is made, as happens in the Netherlands, which the Joint Committee on the Repeal of the Eighth Amendment to the Constitution heard. The three-day waiting period there is only acceptable if it begins when the woman first calls the doctor. All this three-day waiting period achieves is barriers and distrust. We do not trust women to make up their minds and think through their decisions before they make the call to the doctor. Surely where the pregnancy concerned will exceed 12 weeks, we can make an exception. The Minister has said that a woman under 12 weeks will have access under this section. However, if we do not accept amendment No. 31, a woman legally entitled to an abortion will be denied care because of the three-day wait.

I also support the Sinn Féin amendment, which would remove the three-day wait where it would be a barrier to care. The Minister has at all times said this service would be accessible to women and the section exists because the committee recommended that termination in early pregnancy be accessible to women who had experienced rape and incest. How can we possibly justify making a survivor of rape wait three days for no other reason than because it was included by the Department between our committee report and the publication of the draft Bill?

The three-day wait and its particular effect on the poor and marginalised women worries me most as I sometimes feel that in most legislation, it is the most marginalised and those on the fringes of society who are left behind. These include women in addiction and homelessness, as well as those women with low educational attainment. Often self-advocacy, knowing one's rights and being able to access a provider can be limited. This is an issue for those suffering domestic violence, medical card holders and those in direct provision. For example, there is one bus going from Mosney per week. It is a major issue as there is usually only one or two doctors, some of them provided by Safetynet Primary Care personnel operating in the likes of Mosney. What if the doctor is a conscientious objector and a person might have to wait for five or six days before being able to leave Mosney and accessing another doctor? What will happen in rural Ireland if a local doctor objects and a person must travel to another town? What happens in the case of a woman pregnant due to sexual abuse and rape?

The Abortion Support Network clearly outlines this in communication with the Minister and the rest of us this week. It speaks of real-life experiences that it deals with on a daily basis. Ms Mara Clarke notes the plight of homeless women, and the network has been hearing from an increased number of people who are homeless but who need abortion services. A few weeks ago she had four homeless clients in one week, and many of those clients are homeless as a result of abusive relationships, while others have fallen on hard times. Where does the Minister suggest that a homeless woman should go to experience the five to six hours of extreme bleeding and cramping that some people endure, not to mention the additional possible side-effects of nausea, chills, fever and diarrhoea?

I have countless examples of women who are homeless in extreme circumstances. I remember working in a now-closed facility at Aungier Street in approximately 2000. One of the women I met was not only raped repeatedly by her grown-up son but her ex-partner, whom she left by leaving her house, waited outside the post office every week for the one day she would leave the hostel in order to take her money. She had an abusive man standing on Aungier Street stopping her from accessing her own social welfare so how is she meant to make repeated calls to a doctor?

Speaking of women made homeless due to abusive partners, the largest percentage of the Abortion Support Network's clients are in and escaping abusive relationships, often with men who will not use or who sabotage birth control. It can be impossible for these women to leave the house for one doctor appointment and two or three appointments could raise suspicion. In the past the network has arranged for these women to travel on days when their partners were on stag or work trips, or it has advised on how it may be possible to access safe but illegal abortion pills through friends. One women with whom they had arranged travel disappeared and was unreachable. She contacted the network a year later to apologise for going missing but her partner had discovered her plan to terminate and beat her so badly she could not travel. When she got back in touch, she had a young baby and another pregnancy with which she needed help to terminate.

When I read about this one set of circumstances I was reminded of and upset by the case of another women whom I met once approximately eight years ago when I worked helping people with addiction. One service user came into the programme and said she had heard an already isolated migrant woman who lived next door screaming and it sounded like she was being beaten on a regular basis. We took the risk one day to call to the woman in the flat and she was absolutely petrified. She was not suffering addiction but I asked her if she wanted to join the programme to try to get some sort of support. I am trying not to get upset but she looked really unwell. She had a bun in her hair and told us how she was not even allowed to have a hairbrush. She was not allowed to have sanitary products. Instead of her coming to us, she asked if we could bring some stuff with which she could wash herself while her husband was out. After a few days of calling to her and sneaking in sanitary products, we finally convinced her to come to the community centre while her husband was out. She was petrified. We had to hire a hairdresser who spent hours taking the knot from the top of her hair as it was so long since she had been allowed to brush it. She had two young children. After that one day of finally getting her to the centre, she never came back to us again and she stopped opening her door for us. I have no idea if my intervention stopped her being able to come back to us and leaving the house again. She could never make it to a doctor. Three days is not acceptable for women like that and this Bill does not legislate for such women.

Amendment No. 34 would allow for otherwise appropriate medical principles to be incorporated in how we date pregnancies for the purpose of this section. It is drawn from an amendment by Deputy O'Connell in the Dáil. The principle of dating it from the first day of a woman's previous menstrual period is problematic. The Minister knows this and I do not need to elaborate on it. The time in which a woman is defined as pregnant should not be from the first day of her last period as this shortens the amount of time available. In some cases a pregnant woman might be seen as being 12 weeks' pregnant but has really only been pregnant for nine or ten weeks. If we are to keep the three-day wait for the majority of cases, we need to really look at those specific cases and carve out exemptions to that waiting period. Otherwise this will be another piece of legislation that is of no use to women in dire circumstances like the women I have worked with for many years. This three-day waiting period does not help them in any sense.

These are prudent amendments to the proposed requirement in section 12(3) that three days must elapse between the date of certification and the provision of abortion care. Sinn Féin strongly holds that there should be no possibility of the waiting period acting as an arbitrary barrier to care. There should be nothing in the Bill causing a doctor to think about anything except a pregnant woman requesting help. If a decision is made to include reference to a three-day waiting period in legislation, it must begin from a woman's request for an appointment with a medical practitioner if it is to be at all workable in practice. Barriers in this instance would be damaging to women and further force them to travel abroad or procure abortion pills on the Internet. The referendum campaign touched on these matters and people were adamant that they wanted to stop forcing women to travel abroad or having to buy unregulated pills on the Internet in order to treat themselves. This legislation will only have served its purpose if the number of women travelling abroad for termination or the ordering of abortion pills goes down.

Such a decision is all-encompassing and it consumes women for much more than the three days that some politicians, for whatever reasons, obsess over with others in society. In most cases women spend weeks coming to a decision and they do it alone in most cases as well. We must have common sense and the three-day period was never meant to mean there should be multiple visits to a GP on several days. It was meant to mean the service would be available three days after a person presenting at a GP surgery, over the phone, via email or on WhatsApp, if it is accepted in the clinic. The person would speak with the GP or secretary to make an appointment after making the momentous decision to attend a GP for this medical procedure. In order to ensure there cannot be unnecessary barriers we must change this unnecessary waiting period.

With respect to amendment No. 30, there is a blind spot in the legislation with women under the 12-week limit if waiting for the three days would take them over the limit, resulting in an inability to access medical services.

It is sensible to insert a clause to the effect that if the three-day waiting period is overly burdensome for, say, a woman who is a prisoner of domestic violence, someone in direct provision or someone who finds it difficult to make that decision for one reason or another and eventually does but it is coming up to the 12 week barrier, as described eloquently and emotionally by Senator Ruane, it should be overridden.

With regard to an emergency provision to waive the three-day waiting period in serious circumstances, the Minister appears to suggest that cases of domestic or intimate partner violence would be covered by the emergency provisions of the legislation. I am not sure if that is the case. The emergency provision is confined to cases where the woman's life or health is at such a risk that an immediate abortion is required. That is different from domestic violence. Only a small subset of cases of domestic and intimate partner violence can meet that criterion. This amendment would allow a waiving of the three-day waiting period where it would cause a significant barrier to access, including because it may contribute to the woman exceeding the 12 week limit. That would ensure that women do not unduly suffer from the three-day waiting period. I and Sinn Féin support the amendments to section 12.

This is probably the only time I will speak on this Bill. I had looked for a section on which I could speak. I admire the contributions so far from Senator Ruane, but I am concerned about what is coming with the Bill. I have spoken to the Minister previously about the need for the wrap-around services associated with the Bill, which are equally as important. There should be an integrated primary care contraceptive scheme to ensure contraceptives are made available free of charge. There should be an improved education programme which would see GPs visit schools to explain to students the process involved in the use of contraceptives and their availability. In addition to the issues we are discussing now, it is important that we try to prevent as many crisis pregnancies as possible, that as much education and knowledge as possible is provided on this issue, and that we provide the necessary services with regard to this legislation. I would like to hear the Minister's response on that. How soon could those wrap-around services be put in place? We are talking about having abortion services available in January. Can those additional services be made available in January as well?

I am speaking in support of amendments Nos. 30 and 32. I have not spoken to a single community provider - a GP, the Irish Family Planning Association, IFPA, or Well Woman centres - who view section 10 on risk to life or health in an emergency as a mechanism they can use to waive the waiting period in certain scenarios or living circumstances. It will be interpreted as applying to urgent cases. The language in section 10 refers to immediate risk, which will take place in a hospital setting. I cannot understand the reason the Minister expects this provision to be compassionately interpreted by doctors when they are caring for vulnerable women to whom Senator Ruane movingly referred, particularly when there is a threat of criminal sanctions for any doctor who steps outside the provisions of the Act. I refer to someone living in direct provision. I know a centre in Cork where there is a bus service only once a week. If people cannot get the bus, they have to find money for alternative transport, but if they are living on €19 a week, they cannot afford that. The return bus fare from Cork to Bantry is more than €30. If someone is on limited income, a second visit to the doctor is not a feasible option.

With respect to domestic violence, a woman might be living in an abusive, controlling environment but her life may not be at immediate risk when she seeks a termination. In practice, however, those women might encounter major barriers in trying to return for a second appointment after the waiting period has elapsed. There are issues with cost, lack of public transport from direct provision centres and the need to explain one's whereabouts. We passed legislation on the offence of coercive control. The problem exists. Women are often prisoners in their own home. They are terrified of their husbands and afraid to look after themselves. That happens. It would be compassionate to allow doctors waive waiting periods in such living circumstances. That would ensure that women can access the care they need. I do not believe section 10 allows doctors to do that.

I would appreciate it if the Minister explained how he believes that will work in practice. If he can reassure us, we will listen to what he has to say, but I am concerned about that group of women in very difficult circumstances for whom a second visit to the doctor is a bigger barrier than it might appear on paper. I do not like the idea anyway. I would welcome its removal. However, we need waivers to ensure we do not take away the power from doctors to make that call. Doctors will know the needs of women in those circumstances.

I welcome the Minister. I will speak briefly because the Labour Party Senators have supported these amendments and, in particular, signed up to amendments Nos. 29, 31 and 32.

I echo the eloquent comments of Senators Kelleher and Ruane on these amendments and on the problems with the mandatory three-day waiting period and our difficulty with it. I share their view that we should not have this and that it is an unnecessary burden. I accept it was in the text published in advance of the referendum, but it is not something that will in any way assist women's access to abortion.

I acknowledge also that the Minister moved on this in the Dáil by inserting the new subsection (3)(b) into section 12. That is very important. It was in response in particular to issues raised by my colleague, Deputy Kelly, and others in the Dáil to try to reduce the onerous nature of the three-day period as a barrier for women. Our amendments are being put forward in the same constructive fashion seeking to mitigate in some way the difficulties that may well be posed for women and their doctors and the sort of scenarios Senator Ruane described because of the three-day period.

We should also acknowledge that section 12 will be the section under which, as the Minister said, the vast majority of terminations of pregnancy will be performed in practice. Looking at the statistics from England and Wales for 2017, 90% of terminations of pregnancy are carried out at under 13 weeks. We know that, in practice, early trimester abortion will be the most significant for most women. That is the reason it is important to get it right.

I thank the Senators for putting down these amendments on what is an area that was debated extensively at the Oireachtas committee where many different views were expressed and different testimony heard. It was debated extensively also during the referendum campaign and in the other House.

I will start by outlining the importance of making sure that people who are being referred to in the House as vulnerable groups, and rightly so, can access the services. It is for that very reason that I made the decision that this service needs to be free and part of the universal health service. It is for that very reason that I am so determined that these services are introduced in the new year because it is a reality today in Ireland that some women can travel and that other women, especially marginalised women, cannot. That is why I am disappointed to hear comments such as those from the Coombe Hospital today that it will not be in a position to provide the services. We should remember that the overwhelming majority of these services will be provided in the community through a woman's general practitioner. We should remember also that maternity hospitals are already providing, albeit in a limited circumstance, access to termination under the 2013 Act.

There is a time for leadership in these Houses of the Oireachtas but there is also a time for clinical leadership. I do not have any role in drawing up clinical guidelines. That is the responsibility of clinicians. I believe that if everyone puts their shoulder to the wheel, we can make sure that services are in place in January. They will have time to embed and evolve fully, but safe services can commence in the new year. That is the reason I do not believe legislation can be delayed.

I have moved somewhat on this issue since the referendum. It might seem like a small point but it was an important one. The original general scheme referred to 72 hours rather than three days. It was pointed out to me by a number of doctors, and a number of women's organisations, the practical challenges that would have caused.

The difference between 72 hours and three days is not insignificant. Asking for the full 72 hours to elapse was going to place a further hurdle for the woman and cause further confusion and inconvenience for GPs. I made the change during the passage of the Bill through the Dáil to clarify that section 18(h) of the Interpretation Act 2005 dealt with how periods of time should be understood where they were included in legislative provisions. It states, "Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period". As section 14 of the Bill provides that three days must elapse from the date of certification, in accordance with the Interpretation Act, the date of certification is also included in the three days. It lessens the time, but it does not address all of the issues highlighted by some Senators. However, the emergency does more than Senator Kelleher believes it does. I have taken medical views on this issues, including that of the Chief Medical Officer. There is no reason a doctor cannot use section 10 where it is an immediate and necessary step to protect a woman's health or life.

We need to be careful to point out that the three-day period is only one of the provisions included in the Bill. There are others dealing with accessing a termination and that specifically relate to health and life that have no time period. There is also an emergency provision that has no time period and on which I will engage further with clinicians. If somebody is affected by domestic violence, she may only be able to get to the doctor once; therefore, we have to make sure that, if the doctor believes there is an immediate risk to the woman's health, he or she needs to be able to intervene. I will continue to engage with Senators on this issue.

Senator Devine asked if the time period could start from the moment the telephone call was made. We do not have an electronic booking system, as they do in other European countries where a person makes an appointment with a GP by email or a logged phone service. Our 24/7 helpline will signpost where services are available, but it will not make the appointment for a person. We need to be careful not to allow a third party who is not a medically qualified health professional to interfere in the relationship between a woman and her doctor.

The amendments refer to conscientious objection. I was more than a little frustrated that all of the talk about conscientious objection was from the perspective of the doctor because, while doctors have a right to conscientious objection, so do nurses and midwives and I defend that right. However, it also has to be looked at from the perspective of the woman. Nobody voted for the scenario where a woman would have to go from doctor to doctor in the hope of finding help. The 24/7 helpline will not just be a telephone line; it will have instant messaging in 2019 because it is a more convenient way for people to contact services. The website which will be launched and the MyOptions service that is being put in place will provide women with the information they need in order that they will not have to go to a local GP in the hope of finding help. Instead, a woman will go secure in the knowledge that the medical professional wants to help her and has signed up to provide help for women in such a crisis.

Amendment No. 27 relates to the idea of an obstetrician certifying and carrying out the procedure. I have dealt with this issue extensively and clarified what is meant by the medical procedure and how it is different from aftercare. The outer limit for legal access to a termination is 12 weeks. Some amendments, although they are well intentioned, ask the House to waive that limit, but that is something we have to be careful not to do.

I was also asked about dating the pregnancy. A number of female Deputies vociferously said they found it offensive to talk about menstrual periods in legislation. We looked at whether there was another way of doing this and I accept the medical advice that pregnancy is generally dated from the first day of a woman's last menstrual period. We are keeping the legislation under review, but we need to use language that is very clear and which doctors and women will understand. While there are different views on this issue and I understand why, I believe that, following the referendum campaign, people voted in favour of the 12-week period without a specific indication but with knowledge of the context and how it would operate.

I have heard references, more extensively in the Dáil than in the Seanad, to the Dutch and other systems. This is not the only country in the European Union to propose a law with a waiting period. Many of the countries that do would not be defined by Members of this House as conservative nations but as bastions of liberalism. In the Netherlands there is a five-day waiting period which can be triggered by a woman telephoning the helpline, but section 3(1) of the Dutch Act states a pregnancy shall be terminated not earlier than the sixth day after the woman has consulted the physician and discussed her intention with him. The website of the Dutch ministry of health, welfare and sport states the law imposes a mandatory five-day waiting time in order that a woman can think carefully about her decision, but I do not favour this language. The committee heard from lots of very fine experts and there are waiting periods in many countries. We are bringing forward legislation in which I feel I am mandated to do what I told the people that we were going to do. I have tried to make it as operable and practical as possible, which is why we have made abortion services free and part of the universal public health service. It is why we changed the 72-hour limit to three days and set up the 24/7 helpline and the instant messaging service from 2019 in order that women can be signposted to services. There are also emergency and health provisions in the legislation which are separate and distinct from the early pregnancy section.

I am glad that Senator Lawlor raised the points he did. Many Senators have raised the same issues on a regular basis.. We want terminations carried out in this country to be free, safe and legal, but we also want them to be rare. No woman wants to find herself with a crisis pregnancy. There are a variety of ways to deal with it, one of which is contraception. In 2019 we will increase the amount of barrier contraception, that is, condoms, available through the HSE. We will also bring forward proposals for how we can expand access to female contraception to make sure cost is not a barrier.

I oppose these sections generally. Amendment No. 26 would abolish the three-day waiting period on the ground of "any reason", contrary to the promises repeatedly given to the people before the referendum. Abortion supporters consistently talk about respecting the mandate given by the referendum result, but they want to scrap this core commitment given in the heads of the Bill. What was said before the referendum is subject to whatever the Oireachtas decides, as the Referendum Commission pointed out, and the people voted to give the Oireachtas full powers to legislate, however extensively, conservatively or restrictively for abortion. However, paragraph 12.2 of the Medical Council's guidelines for professionals on conduct and ethics offers strong material in support of waiting to obtain consent until the patient is less stressed and has had time to consider risks. The Minister says he wants abortion to be rare, but much in the Bill gives the lie to that stated intent. The existence of at least some waiting period moves in the direction of trying to create space for a woman who finds herself in this situation to have second thoughts, as many women do.

I count among my friends women who had second thoughts in time about having an abortion. We are greatly relieved that is what happened. Anything that puts people on an inevitable trajectory towards abortion adds to the terrible injustice of abortion itself. I will have other amendments that will seek to put flesh on the Minister's stated intent of creating circumstances in which women would be given every opportunity to consider a better alternative to their dilemma than abortion.

Leadership can take many forms, and the Minister spoke about leadership. It is a strange kind of leadership, however, that would add to the existing injustice of unborn children being killed under this law and the possible injustice of women being endangered in circumstances in which hospital facilities have said they are unready to implement this service. It is not good enough for the Minister to be hustling them on in the language he just used, raising questions about the Coombe Hospital. We are hearing a lot these days about the need to defer to medics on the basis that medics know best, and it is stated we are not going to write the script for medics. People seem to be very willing to do that when they want, however. Just now, the Minister spoke in very direct terms about what doctors do in this situation, about the timing of the pregnancy and so on. It is entirely unfortunate to be sending out any ministerial political messages to the Coombe Hospital or any other hospitals. There is an inevitable injustice in the loss of innocent unborn human life but I would certainly never want to do anything that would create further risk. I certainly believe the Minister should be deferring to medical facilities on this instead of hustling them on for the sake of some kind of politically motivated time limit. That is entirely the wrong approach, not just in terms of having regard to the welfare of the unborn, which I am afraid is being completely disregarded, but also in terms of the welfare of the women in question. I will leave it at that.

I will not be provoked during this debate but I will not sit here and be neglectful in my duties as the health Minister. I am perfectly entitled and, indeed, duty-bound to have a view on the delivery of health services in this country-----

-----that we fund on behalf of the taxpayers, staff whom we pay and facilities that we support. It is entirely appropriate for me to step up to the plate in ensuring there are free, safe and legal services available for women with a crisis pregnancy. While Senator Mullen and I are on our Christmas holidays, we will not be in crisis with a pregnancy. Our bodies will not be in crisis, God willing, but today three women will take the pill and nine will travel. Twelve terminations will take place every single day in January. It is not beyond this small country to step up to the plate collectively and provide safe services, 80% of which would be provided by our general practitioners, hundreds of whom are signing up saying they are ready and want to provide the services. Fourteen of our maternity hospitals are bringing forward plans to state how they will implement the service. I, as Minister, and the Taoiseach have acknowledged that it will take time to fully embed and integrate our services. We are introducing a new service. Our clinicians are working extremely hard. We have to get this right. It is nearly seven months on from the referendum, with whose result the Senator fundamentally disagrees, which is fine, but the rest of the people, who voted "Yes", did not ask me to bring in services or whether I would mind. They gave me an instruction to do it. To use dismissive language to the effect that the deadline is political is not in order. It does not make any difference to my life whether the service comes into effect in January, February, March, April or May but it makes a hell of a big difference to the lives of Irish women. I am determined we will do it.

I correct the Minister on the point on having to do so. First, he was not given an instruction to introduce abortion services. He is looping back to that language. It has been pointed out to him, not just by me, that what the Oireachtas was given was the freedom to legislate in this area. Certainly, people knew some opening up of the law on abortion would result from that but in no sense did they know about what is occurring. I really have to call Deputy Harris into question as Minister for Health in that he should know that it is not honourable, truthful or responsible to try to turn a freedom he was given by the people in the referendum into a direct mandate based on the view that he would be in breach of some sort of constitutional responsibility were he not to bring forward this legislation. It is important that we tell the truth to people.

The Senator put up posters about the legislation. His entire campaign was based on the premise of the legislation. I refer to the period of 12 weeks. Throughout the country he debated this. He worked extremely hard for his campaign on the content of the legislation, as did I, and now here we are.

It is true what the Minister said, that I and others warned about what the Government would do if it got the freedom-----

The Senator can hardly blame the Government for doing it.

I and others warned about what the Government would do if it got the freedom-----

I am being criticised for doing what I promised to do.

The point I am making, which the Minister does not seem happy to allow me to make-----

-----is that there is a difference between being given an instruction to do something that puts one in the wrong if one does not do it and being given the freedom to do something.

On a point of order, are we still speaking to the amendments directly?

The Chair will rule. The Senator should not worry. If she wants to contribute, she may do so. Does she want to speak next?

I am just saying we need to stick to the amendment. We seem to be going off topic.

We will have one speaker at a time. Senator Mullen without interruption, please. Can we agree to disagree without being disagreeable?

Of course we can agree to disagree but we should stick to the rules, which involve speaking to the amendment.

As the Chair, I will watch that. Senator Mullen should continue on amendment No. 26.

There was a lot of talk for long enough about why people thought it was inappropriate to have laws prohibiting abortion in the Constitution. Now it seems that every time the Minister refers to having been given some kind of instruction by the people, which he was not given, he wants to constitutionalise. We are being invited to believe that if the Government in any way rowed back from its very irresponsible and unjust heads of legislation, the Minister would somehow be in breach of a mandate given to him by the people. Only a very incompetent or untruthful person would hold to that statement. I invite the Minister to reflect on his position.

Whether I am incompetent or-----

What the people decided was that the Legislature, Oireachtas Éireann-----

The Minister is being called incompetent and dishonest. The Senator may be choosing his words carefully but that is not on.

I cannot allow interruptions. I will give the Senator and the Minister space.

What he said-----

I remind the House that this amendment is about a three-day waiting period.

Senator Mullen is not talking about that. I am surprised the Chair has not heard that he is not talking about the amendment. It is perfectly plain he is not talking about that.

I remind Senator Mullen that, as I am now being informed, this is about a three-day rule? Am I right?

I was responding to an inaccuracy in what the Minister said. It is inaccurate. I did not say he was incompetent and dishonest; I offered alternatives. I stand by my position that it is either incompetent in terms of the position the Minister holds or dishonest to pretend in any way that the people of Ireland on 25 May instructed the Government to introduce this abortion legislation in full measure. They might have been aware that it was the Government's intent but they also expected that the 34% who voted "No" and the "Yes" voters who did not want to go as far as the Government wants to go would be represented, presumably proportionally, in Oireachtas Éireann. That has not happened. One reason it has not happened is that the Government has tried to claim the politicians elected to the Dáil and Seanad were under some kind of instruction of honour to carry out everything the Government said it intended to carry out. That is simply not true. Nothing the Minister can say, accidentally or intentionally, can make it true.

We are straying from the amendment. As the Chair, I must rule.

I will finish with a question to the Minister. It relates directly to what he said about the three-day waiting period. He said he had changed it from 72 hours to three days. What is the significance of that?

The record of the House will show my answer. It is to make the Bill comply with the Interpretation Act 2005, which deals with how periods of time should be understood when included in legislative provisions. I quoted directly from that Act.

I had not intended speaking on this issue but it is very important. I have listened very carefully to what Senator Ruane had to say. There are difficult cases which she has described and which no doctor would be happy about if they were not accommodated. However, I have also heard the Minister's response, which makes it very clear that if, in the doctor's opinion, this represents a serious risk to life - domestic violence clearly represents such a risk - the doctor will have discretion. I am very much reassured by this. I have no need to point out in this House that hard cases make bad law. The fact that we have this question here reassures me greatly. In general, given that Irish people voted in the referendum for this change and this legislation was published before the referendum and was in their minds as being what the result would be, I believe they would rightly feel deceived by the Government if it were to remove this clause.

I have always been of the view that these are ultimately matters for doctors and their patients. I recognise and believe that the medical profession tries to act with the best interests of the patient at heart. That is what doctors are trained to do. The reason many of us did medicine was to help and this legislation, as outlined by the Minister, represents the wishes of the majority of Irish people. I absolutely respect the opinions of those who take a different view and the fact that 34% voted otherwise. If we were to interfere with this legislation now, however, we would not serve women well. We would further delay, as I said earlier in this debate, its arrival on the Statute Book. Every day, eight women will leave this country and three more will get abortifacient pills over the Internet, the safety of which is anyone's guess. We have already pointed out the dangers this could present to them, and then there is the issue of women failing to present to a medical practitioner for fear of being in breach of the law and reported to the police.

In summary, I hope the Minister's words and the provision allowing for the discretion of doctors to be applied will reassure the Senators who feel the need to remove this three-day clause.

Does Senator Mullen wish to make a further point?

I wish to ask a brief question. I thank the Minister for his response about the Interpretation Act but I do not understand the implications of it. The Bill states that "the termination of pregnancy shall not be carried out by a medical practitioner unless a period of not less than 3 days has elapsed" from the date of certification or the date of the previous certification. What I am trying to establish, in light of the use of the words "3 days" instead of "72 hours", is what is the minimum number of hours that must have elapsed between A and B?

On a point of order, we are now speaking to an amendment that arose in the Dáil. This is a change that took place in the Dáil. We are not speaking to my amendments or Senator Norris's amendment. It is not fair to backtrack and retrospectively have a debate about something that happened in the Dáil. It is not happening here.

That is not a point of order but, with respect, we are on Senator Norris's amendment No. 26, which concerns a three-day period.

No, sorry, it is not a wide open debate on a three-day period. These are specific amendments. We cannot just say "three-day period". We could be discussing anything.

We are on Senator Norris's amendment, and I will come back to Senator Norris in a second.

This is not about the translation to "72 hours".

You are out of order, Senator.

No, you are out of order. As Chair, you need to be able to keep a handle on what is being discussed.

Excuse me, Senator.

No, I will not.

You will not check the Chair.

You are out of order. If you have a complaint, you may make it to the Cathaoirleach or take it up with the Committee on Procedure and Privileges, CPP. I am keeping order for the moment.

You are not, actually.

I want order. I do not want Senators to be argumentative. If you want to disagree, do so-----

It is not a disagreement.

-----but do it without being disagreeable, please.

It is about your job and why we voted you into it and ensuring we stick to amendments.

You are out of order. Does the Minister wish to make a further point?

Very briefly, because I am conscious of what Senator Ruane said. I will take 20 seconds to clarify the matter. The Interpretation Act states - I am paraphrasing now - that the day on which the certification takes place also counts as a day, so if a woman were to see her doctor on a Monday, the Monday and the following Tuesday and Wednesday would be the three days and, therefore, the termination could take place first thing on Thursday. The day of certification counts as one whole day.

This is Senator Norris's amendment.

I would like to bring the matter to a close. Does the Senator wish to press the amendment?

I will withdraw it with a view to tabling it again on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 27:

In page 10, line 4, to delete “carried out” and substitute “initiated”.

Amendment, by leave, withdrawn.

I move amendment No. 28:

In page 10, lines 5 to 9, to delete all words from and including “from—” in line 5 down to and including line 9 and substitute the following:

“from the date on which the pregnant woman made arrangements to attend the medical practitioner for the purpose of the examination referred to in subsection (1).”.

Amendment, by leave, withdrawn.

I move amendment No. 29:

In page 10, lines 5 to 12, to delete all words from and including “from—” in line 5 down to and including “elapsed” in line 12 and substitute the following:

“from the date on which an appointment with the medical practitioner was requested”.

Amendment, by leave, withdrawn.

I move amendment No. 30:

In page 10, between lines 9 and 10, to insert the following:

“(4) Subsection (3) shall not apply to a woman where it is deemed to constitute a significant barrier to access to a termination of pregnancy under this section, including because it may contribute to her exceeding the 12 week limit referred to in subsection (1).”.

Amendment, by leave, withdrawn.

I move amendment No. 31:

In page 10, between lines 13 and 14, to insert the following:

“(5) Subsection (3) and (4) shall not apply where the medical practitioner referred to in subsection (1) is of the reasonable opinion formed in good faith that, if the time period referred to in subsection (3) were to elapse, the pregnancy concerned would exceed 12 weeks of pregnancy.”.

Amendment put:
The Committee divided: Tá, 16; Níl, 23.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Mac Lochlainn, Pádraig.
  • McDowell, Michael.
  • Norris, David.
  • O'Sullivan, Grace.
  • Ó Donnghaile, Niall.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Dolan, John.
  • Feighan, Frank.
  • Lawless, Billy.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Mullen, Rónán.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Donnell, Marie-Louise.
  • O'Mahony, John.
  • Ó Domhnaill, Brian.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Colette Kelleher and Lynn Ruane; Níl, Senators Gabrielle McFadden and Catherine Noone.
Amendment declared lost.

I move amendment No. 32:

In page 10, between lines 13 and 14, to insert the following:

“(5) Subsection (3) and (4) shall not apply where the medical practitioner referred to in subsection (1) is of the reasonable opinion formed in good faith that, during the time period referred to in subsection (3), the pregnant woman is likely to be subject to a threat to her life or health, arising from her living circumstances.”.

Amendment, by leave, withdrawn.

I move amendment No. 33:

In page 10, between lines 13 and 14, to insert the following:

“(5) Subsection (3) and (4) shall not apply where the pregnant woman concerned has been the subject of arrangements for the transfer of care in accordance with section 22(3) in respect of the pregnancy concerned.”.

Amendment, by leave, withdrawn.

I move amendment No. 34:

In page 10, line 16, after “period” to insert “or otherwise appropriate medical principles”.

Amendment, by leave, withdrawn.
Question put: "That section 12 stand part of the Bill."
The Committee divided: Tá, 33; Níl, 5.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Dolan, John.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Lawless, Billy.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • Norris, David.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Donnghaile, Niall.
  • 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.
NEW SECTION

I move amendment No. 35:

In page 10, between lines 16 and 17, to insert the following:

“Protection of Infants born alive

13. (1) In this section “born alive” means the complete emergence of a foetus from the body of the woman, regardless of the state of gestational development, who, after emergence, whether or not the umbilical cord has been cut or the placenta is attached, and regardless of whether the emergence occurs as a result of natural or induced labour, caesarean section, termination of pregnancy or otherwise, shows any evidence of life including, but not limited to, one or more of the following:

(a) breathing;

(b) a heartbeat;

(c) umbilical cord pulsation; or

(d) definite movement of voluntary muscles.

(2) In this section “infant” means a foetus who has been born alive as a result of the carrying out or attempted carrying out of a termination of pregnancy under this Act.

(3) A medical practitioner shall take all steps as may be appropriate and practicable to preserve the life of an infant.

(4) For the avoidance of doubt, the fact that the infant has been born alive as a result of the carrying out or attempted carrying out of a termination of pregnancy under this Act shall not be a relevant consideration for a medical practitioner when determining what constitutes an appropriate and/or practicable step under subsection (3).”.

The amendment adds a new section that would place an onus on a doctor to make every reasonable effort to protect the life of a baby who is born alive as a result of an abortion carried out or attempted. The amendment is similar to other amendments we have tabled in that it contains measures we would have expected to be present in the Bill from the beginning. It makes clear for doctors what is to be done when an abortion does not result in the death of an unborn baby, as intended in the procedure. It places responsibility on doctors in these cases to respect the baby that has been born alive rather than abandon him or her to certain death through neglect. It is not too much to ask for in these rare but real cases that occur. We should always err on the side of protecting the new individual who has come into the world in such awful circumstances. Manufacturing excuses for why a baby in these circumstances should not receive basic medical care and protection is the inverse of the social solidarity and respect that should be the mark of any civilised society.

The amendment is careful not to set a singular approach to apply in all cases. It leaves room for medical practitioners to take the appropriate action depending on the circumstances. Such circumstances include the gestational stage of the pregnancy and the likelihood, based on that, of whether the baby stands a chance of survival and so on. The intent of the amendment is perfectly clear. It places an onus on medical practitioners to do their best to preserve life in these situations where practicable. The amendment is based on real-life experiences in other countries where babies born alive after botched abortions have been routinely left to die without receiving any medical care. Let us stop for a minute to think about this. In 2018, countries that pride themselves on their human rights records have allowed the inhumanity of abandoning a baby to certain death because he or she survived an abortion. This is not only tolerated but routinely practised.

If the strategy of some colleagues is to ignore amendments seeking to make the Bill less extreme, I appeal to them to consider this amendment and ask themselves whether it is right that, in the rare cases where it occurs, we should turn away from a helpless baby that has just been aborted but has survived. I appeal to colleagues to concede that it is our responsibility as a humane society to rally to his or her aid. We may be uncomfortable with the reality placed before the House that babies survive abortion. Some may even regard it as extreme to even raise these issues. My response is that we should be uncomfortable and that we have no right to lightly dismiss the amendment, which is based on the horrific reality of what happens in other countries and what will happen here if we do not rule for these circumstances. We have to face uncomfortable truths. We cannot hide behind them. We were elected to face tough realities and not pretend that we do not exist.

Official figures from Canada, for instance, show the prevalence of such cases over a ten-year period.

Starting in 2000, 491 babies who survived botched abortions were abandoned by medical staff and left to die alone without care in hospitals. In Britain the confidential inquiry into maternal and child health revealed that in 2005, 66 babies in England and Wales had been born alive and left unaided to die after failed abortions. The amendment we are debating would make sure such an outrage could not happen here. It would not interfere with access to abortion but ensure the outrageous human rights abuse of abandoning a baby that has just been born would not be allowed to happen here. If we dismiss the amendment, it is inevitable that babies will be born alive after botched abortions in this country and left to die unaided, just like what happens in other countries.

This is not a time for denial or deflecting blame onto the sponsors of the amendment. It is a moment of truth for all of us. I plead with the Minister and colleagues not to dismiss the amendment out of hand. Research by Amarach Research conducted very soon after the referendum in May found that 69% of voters believed babies who survived the abortion procedure should be given medical care and not abandoned. Only 9% of the public disagreed, while other respondents did not know. The amendment identifies criteria such as breathing, having a heart beat, umbilical cord pulsation or movement of muscles that should be taken into account and a doctor would then be obliged to act to protect the life of a child. It is normal practice in countries in which abortion has been legalised that doctors in one part of a hospital are doing everything possible to save a premature baby born at 23 weeks, while in another part of the same hospital a baby at 24 weeks gestation is having his or her life ended by abortion. The only difference between the two babies is that one is wanted and the other is not. The amendment would make sure the horror we have seen in other countries of babies being left to die would not happen here. The amendment would not prevent access to abortion or stop a woman from availing of what was legal. However, it would be a terrible tragedy if we could not even unite on the idea that babies who survive an abortion should not be left to die without receiving medical care and aid.

There is not much more I can say. To put it simply, the objective of the procedure is to end the life of the baby, but where it goes wrong and the unborn baby is born alive, the original objective ends and medical care and the intervention of the doctor should focus on saving the life of the baby. It is a very humane amendment. I appeal sincerely to the better consciences of the Minister and all Members to accept it. It would do nothing to deter the Minister's objectives. It would simply provide for more humane treatment. It objective is to ensure, rather than leaving a baby to die on a sterilising tray, medical aid would be provided.

We must all imagine that this would be a very rare occurrence, but surely where a baby is born alive, we all believe the most basic fundamental right is the right life? It is shocking to think a living human being would be left, as has been said, to die unaided. Surely that is akin to murder. I take a very serious view of this matter. I am entirely opposed to the thing, as the Minister appreciates. I find it hard to fathom how anyone would wish to extinguish the life of their own flesh and blood. I cannot countenance it. In these exceptional circumstances certainly everything should be done to save life.

It is clear to the Minister and colleagues from all of the amendments I have tabled with Senators Ó Domhnaill and Coghlan that we accept the reality that we cannot turn around this dreadful legislation. What we have sought to do in everything is to bring clarity and a modicum of humanity to what we regard as very inhumane. The forgetfulness of the dignity of the life of the unborn child that runs throughout the legislation should not be compounded by a lack of concern about what should happen in the event that the unborn child survives the abortion process, the termination of pregnancy or the process intended to end the life of the foetus, as the legislation defines it throughout. The amendment would require a doctor to take all appropriate and practicable steps to preserve the life of an infant born alive as a result of the carrying out or the attempted carrying out of a termination of pregnancy. In many ways, some of the issues refer back to ones we raised earlier about viability and the need to exclude a direct attack on human life after reaching viability. This provision should surely have been included in the Bill from the outset since it recognises inherent and basic human dignity, even if it is disregarded elsewhere in the Bill. The amendment would make it clear that in the rare circumstances where unborn babies survived an abortion procedure - it does occur, despite what Members of the Dáil would have us believe - there would be a duty to act to save their lives. It does not attempt to prescribe the exact measures medical practitioners should find appropriate in any given case. It would simply require them to take all steps that might be appropriate and practicable to preserve the life of an infant. We do use the word "appropriate". This would not be an onerous requirement and would not interfere with the "rights" conferred in the legislation to access abortion in particular cases. It would give doctors leeway in exercising their reasonable clinical judgment, although, obviously, I question the clinical judgment involved in abortion, formed in good faith on what was practicable.

I must work in imperfect situations and ask for mercy which is really what the amendment is asking for. It is asking for mercy. There is no future for most of the children that will be affected by this legislation, but the amendment asks for mercy where a child is actually born alive. It would not require "extraordinary measures" to be taken to sustain life for the reasons outlined previously as to why the decision to use this phrase in the definition of viability is a poor one. What is reasonable and practicable will vary with circumstances, including, in particular, the stage of gestation of the unborn child. Naturally, different considerations would apply if the infant was born alive after reaching the point of viability. All of these decisions would left to the clinical judgment of doctors, but there should be a requirement that where a child is born alive, as we define it in the amendment, to provide care.

To me, it was unbelievable that in the other House, the directly elected Chamber, there were Members who disputed the fact that unborn babies ever survived abortion procedures. It was Deputy Kate O’Connell who referred in the Dáil last week to alleged survivors of botched abortions and anecdotes as fairy tales and stories that essentially had dubious sources.

The Minister is not responsible for what Deputy O'Connell said but he did not take exception to the comments made. It was a disgraceful insult, both to those who have survived abortion procedures and to parents of children who have survived the procedures and who have gone on to regret what happened but were grateful that the baby survived.

In Britain, the confidential inquiry into maternal and child health revealed that in 2005, 66 babies in England and Wales were born alive and left unaided to die after failed abortions. I have not heard that statistic disputed. Nadine Dorries is a backbench Tory MP who is much in the news of late because of her position on Brexit. She is a trained nurse and has spoken about how she witnessed two botched abortions.

In Canada, as has been said, official statistics show that from 2000 to 2009, 491 babies survived abortions, were abandoned by medical staff and left to die without care. This amendment asks for mercy.

These are not anecdotes or fairy tales, they are the official government statistics from the UK and Canada. Colleagues will recall that last year, the Canadian Prime Minister, Justin Trudeau, visited Ireland and raised the issue of abortion with the Taoiseach. It struck me at the time that in fact it should have been the other way around. It was the Taoiseach who should have raised this shocking abuse of human rights and human dignity with Mr. Trudeau and protested vigorously. An average of 50 babies are born alive after abortions and left to die in Canada every year. Perhaps if this was happening in a developing world country we would be appalled, but when it happens in a wealthy First World country in the context of the provision of so called safe and legal abortion, some of us manage to find it perfectly acceptable. We would never question what happens in Britain or Canada, but why is that so? Do we not seriously need to reassess our values if 50 children could be left to die every year and that is something which does not cause deep revulsion and people in high places do not seem to be bothered that nothing is done to prevent anything similar from possibly happening here? That is what this amendment is about. It does not limit access to abortion, it just avoids a shocking and incredibly inhumane outcome of an attempted abortion, as occurs in other countries.

I accept that where it might happen, it will generate obligations of the State, perhaps in cases where the baby needs care being brought up. There may or may not, depending on the specific situation, be a desire from the parents or mother to bring the baby onwards from there. I accept that life is complicated but it is not this amendment that makes it complicated. It is the cruel reality of this Bill, that generates the need for this amendment, which seeks to mitigate the injustice somewhat.

Amárach Research recently found that 69% of adults believe that where an unborn baby survives the abortion procedure and is born alive, doctors should be obliged to give medical care to the baby to preserve his or her life. Only 9% disagreed. It must be wondered who those 9% are. They include several Members of the Oireachtas who deny that the issue even exists, which I greatly regret, but Senator Ó Domhnaill and I and others, who propose this amendment while facing defeat, stand on this issue for 69% of adults, according to Amárach Research.

I also want to raise the separate but somewhat connected issue of the treatment of children who are born alive but with serious genetic conditions or terminal illnesses and I want to specifically raise the provision of perinatal hospice care. As the Minister knows, we are well behind the curve in the provision of such care and much remains to be done in the future. It is a sad reality that very little was done to offer such care to mothers and families who received the devastating diagnosis that their child had a terminal illness, although in some cases-----

The Senator is wandering from the amendment. It may be related but we have to stick to this Bill and to the amendments and sections because by diverting in the way that the Senator is doing, he is bringing in a totally different aspect even though there may be some connection. With all due respect to the Senator it would be unwise to pursue that.

I respect the Cathaoirleach's position but I have to say that if a baby survives in this situation, it may be very much in need of what is called perinatal hospice care, although normally it does occur in the context of a situation where a tragic diagnosis of abnormality or disability is received and parents and baby need to be consoled and supported but it does arise in this case here. I will not say any more than that at the Cathaoirleach's request.

I have made the point but what is needed here is what the Rotunda Hospital describes perinatal care as being for such children as are affected by this amendment, namely, "an active, total, holistic approach to care, focused on enhancing the quality of life of the baby" and, if applicable in this situation, his or her family, "while recognising potential or inevitable death, and should be offered from the time of diagnosis". The situation may vary depending on the circumstances because the baby may be born alive and the baby may be in danger of death and unless helped it will certainly die.

It is relevant because of people such as Melissa Ohden, who has been in this country and whose story is real and not a fairy tale. Deputy O'Connell asked whether she remembered the experience well or something chillingly insouciant such as that and in the same way Deputy O'Connell seemed not to understand what perinatal hospice care is all about and seemed to think that it involved some kind of institutionalisation. I ask the Minister to distance himself from those attitudes and to reaffirm the Government's commitment to perinatal hospice care, but on this amendment, to accept that the amendment does not subtract from the provision of abortion by this legislation. It merely seeks mercy in situations that occur in real life where abortion is legal.

I will not be in a position to accept this amendment proposed by Senators, which is, as acknowledged by Senators Ó Domhnaill and Mullen, virtually indistinguishable from an amendment on this subject put forward in the Dáil. While I can see that the amendments are proposed with the care of infants in mind and I do not dispute the Senators' bona fides on that either, the purpose of this legislation is not to regulate obstetric procedures which do not constitute termination of pregnancy, nor to dictate the practice of obstetrics or of medicine more generally. It is not appropriate to insert compulsory care pathways or treatment plans in legislation and Senators will not find any example of that relating to a woman or an infant child in this regard.

I hope we can agree on the fact that there is no doubt that medical practitioners are always required to maintain professional standards and to uphold medical ethics, as governed by Medical Council guidelines. Our doctors, nurses and midwives are bound through professional regulatory mechanisms, to deliver medical services in accordance with best medical practice.

Similar to our previous discussion quite some time ago yesterday on the issue of viability and the supports that would be provided to a baby born at the point of viability, it is the same here. Any baby born in our maternity hospitals, regardless of the circumstances of their birth or how they came into the world, will receive all the neonatal supports that any other child born in that hospital, regardless of the circumstances, would also receive and of that there is genuinely no doubt.

The Senator makes comparisons with other countries and I do not doubt his research although I am not familiar with it but what I can say is that in this country, we are talking about terminations that will be provided in our maternity hospitals. We are talking about maternity hospitals that look after hundreds if not thousands of newborn babies every single day and that is exactly what they will do in an indiscriminate manner, regardless of how a baby comes into the world.

In summary, we do not legislate for compulsory care pathways or treatment plans in our Bill. There is no need to do this. Our doctors, nurses and midwives are responsible to their own regulatory bodies and to medical ethics and for the same reasons that I did not accept the amendment on this in the Dáil, I do not intend to accept the amendment in this House.

The Minister's answer is very problematic. For the Minister for Health, who is introducing abortion on wide-ranging grounds, to say that he is unfamiliar with research about where situations have arisen in other countries-----

I cannot verify the information the Senator just put on the record of the House.

The Minister has had two years to familiarise himself with the stories and the documented evidence. He is the one who is introducing abortion, not me.

I would have thought that the Minister championing the introduction of abortion-----

I am not championing it.

-----would be interested enough to pursue the question of whether it ever occurs that babies survive abortion procedures and what happens to them in various jurisdictions. The Minister has a phalanx of advisers, a chief medical officer and the negligence of the situation, to put it kindly, that he would not be familiar with what happens to the point that he could in any way discuss whether what I am saying is a fairy tale or not is absolutely staggering and reflects very badly on him and the Government.

We are talking about human beings. It is simply disingenuous of the Minister to say he is not going to get into regulating what medical personnel must do because it is for professional regulatory mechanisms to deal with best medical practice. He is changing the definition of best medical practice. Up to now, best medical practice was about protecting two patients, mother and unborn baby, and always protecting a mother even if treatment for her occasioned the death of her unborn baby while every effort was being made to preserve the life of the unborn baby. That was best medical practice.

No, it was not.

The Minister is changing this. That was best medical practice, under Irish law and under Medical Council guidelines.

There was nothing "best" about it.

There is absolutely no question it is why Ireland's maternal mortality rates were among the lowest in the world. It was clearly understood as a matter of law that there was a duty to preserve life that was always in situ, even if that resulted in the death of the unborn. That was best medical practice in this country and was underpinned by law, not just by Medical Council guidelines. The Minister has brought in a legislated right to carry out procedures which are intended to end the life of the foetus and he is telling this House that he is not changing best medical practice.

He is causing a revolution in medical care of all the wrong kind. There would be no legislation if it was only a matter for medics. It would just be that abortion is permissible and it would be left up to medics to decide. This legislation is full of rules. The trouble is it is full of vague rules that leave open all sorts of dangerous, in some cases unforeseen and perhaps, sadly, in some cases foreseen, consequences. The Minister ought to be in a position to discuss with me whether, in current western world practice, babies sometimes survive abortion procedures. He should be in a position to discuss that with me.

No, I should be in a position to-----

The Minister is under a duty to know that.

No, I am not. I am under a duty to discuss the legislation before the House; nothing more.

The fact that the Minister chooses to have such a narrow interpretation and understanding of his duty is remarkable in itself. He has been instrumental in bringing about a situation where an unborn baby does not have rights, to all intents and purposes in all sorts of situations, and has left a lacuna where such a baby is born. He has created a right to carry out and access a procedure that is intended to end the life of the foetus and has not dealt with the possible unforeseen consequences of that, whether through negligence, accident, failure, or whatever one wants to call it, whereby that goal would not be achieved, as happens in other countries. The law is championing the intentional killing of the unborn and then staying silent about what happens if the baby is born and that goal has not been achieved by the time the baby is born. This is shocking negligence.

I again appeal to the Minister to find some mercy here. As I have said to him, this amendment does not take away the right to abortion, a right I oppose because I believe it is in breach of human rights and dignity and hurts women and their unborn. This amendment does not take away any of the rights that the Minister has chosen to give. It simply seeks mercy.

I worry that the reason the Minister and the Government are not accepting any of these amendments is because they have caved in to the abortion industry to the point that the Minister will not accept any amendment that could remotely hint at the humanity of the unborn child. It is only my guess, and the Minister can deny it if he wishes, as is his right, but I cannot understand why these very narrow amendments that seek to inject a modicum of humanity into a cruel situation cannot be accepted. This does not take away any right to abortion but it would at least treat a little creature who might survive that abortion with a bit of mercy. If there is a right to kill the child, there is probably no duty to show mercy and perhaps that will determine the Minister's thinking on the amendments on pain relief as well. There is such a thing as mitigating the wrong that is done by introducing abortion by at least providing that mercy would apply in a situation where an unborn child survives the procedure.

To add to what Senator Mullen has just said, the amendment or the addition of the new section is crystal clear. Part 1 provides the definition of born alive. Part 2 outlines what doctors should do. The Minister outlined that the guidelines cover that and that best medical practice would cover that in any event. There is no reason not to accept this amendment if that is the case because it would be totally compatible with the Minister's assertion that the medical guidelines and best professional practice would cover this in any event. There is no reason not to accept the amendment.

The pro-choice view is that life begins at birth and, if you follow that through, an abortion can go wrong and a baby is born alive, despite the objective to abort the baby and terminate the pregnancy. There are figures available from outside Ireland because this is new legislation here. The figures from Canada are not a snapshot in time. They are indisputable figures collated from the Federal Department of Health in Canada over a ten-year period. They are not just a snapshot of one year, six months or two weeks. This is a ten-year period where 491 babies were born alive. That means that, over that period and rounding the figures off, 50 babies in Canada are born alive per year. How many babies will be born alive as a result of the introduction of this legislation in Ireland? We do not know if it will be one, two, five or another amount. We do not know. What we are trying to achieve with this amendment is to ensure that, if those babies are born alive, they are not left to die on sterilising trays as happens in other jurisdictions. The Minister should have no difficulty whatsoever accepting this amendment if he is correct and it is covered under medical guidelines and by medical best practice. It is the most humane amendment possible.

Is it just that the legislation is before the House, the political commitments have been given and, come Hell or high water, we are going to rush it through? The logical assumption is that we are not willing to take on board reasoned amendments because to do so would delay the Bill from reaching the political deadline of 1 January.

I know this amendment was raised in the other House but the other House can speak for itself. We are here to raise it in this House and there is nothing to stop the Minister from accepting the amendment. It would not delay the Bill as he could go back to the Dáil next week if he wanted but he should not put the political timeframe imperative ahead of an amendment such as this, which is the most humane amendment. If it is even possible, because of ambiguity in the Bill, that a baby could be born alive but left to die it would be horrific in the extreme. We are trying to clarify the ambiguity so that it does not happen. We do not want what happens in Canada and in the UK to happen here. The pro-choice side should also unite on this, given that these babies are already born. They are human beings in maternity wards in our hospitals and they would be left to die if this ambiguity is not cleared up. We are not sure of the number but we know it is 50 per year in Canada and the latest figure in England is 66 per cent.

Does the Minister wish to come back on this?

We are at an impasse.

The Minister should be open to this, even from a precautionary point of view. We are no different from other countries now as we no longer have constitutional protection for the unborn. We need to be clear that there is now no obligation that will override the lacuna in the legislation. The very fact there is a lacuna in the legislation will cover any future instance of deliberate neglect to tend to the child in question. Senator Noone will remember the joint committee hearing evidence from Mr. Peter Thompson, a neonatologist from Birmingham, who described the optimum means of a late-term termination as one in which there would be one injection to stop the child from moving-----

On a point of order, we are going over the same arguments. The point is practical but we are going over the same ground.

Let me be the Cathaoirleach. I am trying to be as fair as possible. The Senator said he wanted to come back with a brief comment. We are now in the 39th minute of discussing this section. The Minister has concluded and I will allow Senator Mullen to conclude.

I will conclude.

Some Senators are referring to statements made by Deputies in the other House and saying they are irrelevant while going on to quote liberally from them. They cannot have it both ways. I am slow to accept criticism of what Members of the other House say because we are two different Houses, though we are dealing with the same Bill.

I do not think I have referred to Mr. Thompson previously so this is new and relevant information that relates to this amendment. When pressed at the committee, this neonatalogist said the procedure was that there would be one injection to stop the baby moving or, as he said, to "paralyse" the baby. He said the second injection in the foeticide was an injection to the heart, part of the reason for which is to prevent the infant from being born alive. The Minister is not engaging at all with what actually happens, but it is relevant and the western world experience is that this does not always occur We have the Gosnells of this world, practitioners who through negligence or cruelty can do all sorts of things and it is for law to protect human dignity, even in the minimal respect for human dignity shown by abortion. I am asking the Minister for some mercy on this and I hoped he would at least have given the issue some thought or engaged with me on the facts of what happens in these dreadful situations.

Amendment put:
The Committee divided: Tá, 8; Níl, 29.

  • Coghlan, Paul.
  • Freeman, Joan.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Mullen, Rónán.
  • O'Mahony, John.
  • Ó Domhnaill, Brian.
  • Wilson, Diarmuid.

Níl

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McDowell, Michael.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Grace.
  • Ó Donnghaile, Niall.
  • 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.
SECTION 13
Question put: "That section 13 stand part of the Bill."
The Committee divided: Tá, 29; Níl, 8.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McDowell, Michael.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Marie-Louise.
  • O'Sullivan, Grace.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Coghlan, Paul.
  • Freeman, Joan.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • 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.
NEW SECTION

Amendments Nos. 36 and 41 are related and may, by agreement, be discussed together. Is that agreed? Agreed.

I move amendment No. 36:

In page 10, between lines 27 and 28, to insert the following:

“Administration of anaesthetic or analgesic to foetus

14. (1) A medical practitioner who carries out a termination of pregnancy shall take all steps as may be appropriate and practicable to avoid causing pain to the foetus.

(2) Where the medical practitioner who is carrying out a termination of pregnancy is of the reasonable opinion formed in good faith that the gestational age of the foetus is 20 weeks or more, he or she shall administer or ensure the administration of an anaesthetic or analgesic to the foetus prior to the carrying out of the termination of pregnancy.

(3) Subsection (2) shall not apply where—

(a) 2 medical practitioners certify that they are of the reasonable opinion formed in good faith that the administration of an anaesthetic or analgesic to the foetus would pose a risk to the life, or of serious harm to the health, of the pregnant woman in respect of whom the termination of pregnancy is being carried out, or

(b) a medical practitioner proposes to carry out a termination of pregnancy in accordance with section 10 and it is not practicable to comply with the obligation in subsection (2) because of the particular circumstances of the case.

(4) Where—

(a) an anaesthetic or analgesic is administered to a foetus in accordance with subsection (2), or

(b) subsection (3) or (4) applies,

the medical practitioner who carries out the termination of pregnancy shall include this information in the notification forwarded or caused to be forwarded to the Minister under section 20(2).”.

Amendment No. 41 is consequential on amendment No. 36. This amendment could be called the second "mercy" amendment. It has a very simple rationale. It is an expression of the compassion which we all ought to have for unborn children and the basic principle that no human being should have to suffer pain unnecessarily. This amendment puts a duty on doctors to minimise pain to the foetus, the unborn child, through the use of anaesthetics and analgesics where possible and appropriate. It places a duty on doctors to use such medications where the unborn child is at over 20 weeks' gestation. It does not apply in emergency situations, as set out in section 10, or where it might pose a risk to the life of, or serious harm to, the pregnant woman. The Minister rejected a similar amendment on Report Stage in the Dáil and made the following statement, which I regard as extraordinary:

the purpose of this legislation is not to regulate or dictate the practice of obstetrics. That is not what we do in this House. There is a very thin line that we should not cross where we move from being policy makers to being doctors. We have to be very conscious of that.

It is true that we should not move from being policy makers to being doctors, though there are doctors who moved to being policy makers and one would have hoped they would have known better than to abandon the time-honoured principles of care in the policies for which they advocate. The line was crossed a long time ago in terms of what ought to be done and what ought not to be done in this House and the idea that the purpose of this legislation is not to regulate or dictate the practice of obstetrics is Orwellian in language, because the practice of obstetrics in Ireland will never be the same again as a result of this legislation. To be frank, I was struck by the lack of self-awareness in the Minister's comments. It is doublespeak and the entire rationale underpinning this legislation is the imposition of a radical shift in medical ethics through the introduction of abortion on request, under section 12 and in ill-defined cases in other sections. A core ethical value of doctors, that they owe a duty to protect the life of unborn children, is being abolished by this legislation. It is a time-honoured value that has come to be attacked in the western world only in recent times. Doctors are being forced to choose between carrying out an abortion, acting to deliberately end the life of a foetus or referring the unborn onwards to be aborted at the risk of being drummed out of the medical profession and with no protection from the law as things stand. In spite of this, the Minister has the audacity to have said on Report Stage that the purpose of this legislation is not to regulate or dictate medical practice. Such language is simply an insult to the electorate, no matter how they voted. The dictation, the regulation and the changing of medical practice radically, fundamentally, dangerously and cruelly are the entire purpose of this legislation.

This is more like a Second Stage speech. I ask the Senator to speak to the amendment.

He is being very general in terms of addressing what happened in the Lower House and the statements of the Minister. I ask him to speak to the amendment and afford the Minister an opportunity to reply, after which he may come back in.

I accept that the Minister may have revised his position or the language he uses in putting it forward since the matter was discussed in the Lower House. However, he has given no other reason for opposing the amendment similar to this one, which was tabled in the Lower House. That is why it is necessary for me to dwell on what is the Minister's objection to this humane and humanising, though somewhat minimal, amendment. It is very sad that anybody would object to measures which simply give limited protection to unborn children and have no consequences for the service that is being legalised.

Although the Minister claims to oppose the idea of compelling doctors to use anaesthetics in medical practice, the Government has no objection to compelling the use of anaesthesia in other areas. Section 17(1) of the Animal Health and Welfare Act 2013 states:

A person shall not, except in accordance with animal health and welfare regulations, perform an operation or procedure (with or without the use of instruments) involving interference with the sensitive tissue or bone structure of an animal without the use of an appropriate anaesthetic or analgesic administered so as to prevent or relieve any pain during or arising from the operation or procedure.

Indeed, failure to observe that section may lead to a fine and up to six months in prison on summary conviction or a fine of up to €250,000 or up to five years' imprisonment on indictment. In this respect and many others, animals will have more protections than unborn children after the passage of this legislation. Although I am a lover of animals and a passionate supporter of animal welfare, that is not acceptable. This is the sad face of the supposedly tolerant and liberal Ireland which we now inhabit. There is nothing tolerant or liberal about this aspect of it. In the light of the Minister having stated that the Oireachtas should not direct doctors as to when they should or should not use anaesthetics and analgesics, why does the Government think it appropriate to direct veterinary surgeons on when to use such medications? The Minister voted in favour of that requirement at the time. Is the professional judgment of veterinarians more suspect than that of medical doctors such that they are in need of Oireachtas instruction or are animals more deserving of proper treatment than unborn children? It must be one or the other.

Abortion is a violent procedure for the unborn child. That will be unavoidable if this legislation is passed. However, if the legislation were to be amended, the possibility of unnecessary pain being felt by the child during an abortion procedure could be avoided. The amendment is precautionary, at least, and perhaps necessary, depending on the view one takes of the point at which an unborn child can feel pain during an abortion procedure. The aim of the amendment is to impose the duty to minimise pain to the unborn where possible. Irish people inherently recognise the humanity of the unborn and we need to acknowledge that humanity by obliging medical professionals to minimise the pain of abortion procedures.

Several Deputies pointed out in the Dáil that surgeons use anaesthetics on babies undergoing surgery in the womb. Why should they not also be used in the case of surgical abortions? There is no logical reason to deny their use unless one argues that the unborn is to be denied its humanity by virtue of the fact that he or she has been selected to be aborted. I fear that once again an amendment is being rejected because it hints at the reality of what abortion involves and the humanity of the unborn and declares or proclaims the deprivation and rejection of human dignity involved in abortion and this legislation.

Deputy Louise O'Reilly attacked a similar amendment on Committee Stage on the grounds that there is no evidence that unborn children can feel pain during an abortion procedure. On the contrary, there is increasing scientific evidence from around the world that babies in the womb feel pain before 20 weeks.

The Senator is reading from the transcript of Dáil proceedings.

Recent research from the United States indicates that they can feel pain as early as 18 weeks and that anaesthetics should be used from that point. We propose that they be used from 20 weeks. We have tried to avoid any unnecessary ambiguities. As I stated, the amendment does not apply to abortions under section 10 or where there is a reasonable belief that harm might be caused to the mother. However, it has been shown that the human nervous system begins to develop at six weeks and that sensory receptors, which allow pain to be felt, develop at seven weeks and are present across the body by 18 weeks. These are established scientific facts. It has also been shown that as early as six weeks, babies recoil and try to get away from any invasive procedure in the womb. They also show signs of increased stress and hormonal response in such situations. Although it has not yet been proven that they feel pain at that early stage, it clearly shows an inbuilt biological reflex of some kind that we should not simply ignore. In fact, there is evidence that children in the womb have a greater sensitivity to pain than newborn babies or adults because it is now thought that the physical ability to regulate and withstand pain does not develop until approximately 35 weeks.

One will notice that, as in other amendments, we have done our homework and seek not to obstruct but, rather, to bring basic standards of humanity to the legislation. The Government and its phalanxes of officials, campaigners, supporters, eminent doctors and so on have refused to engage on issues that are medically and scientifically relevant to the legislation and that is a scandal. In the United States, 12 states have laws which protect unborn children who have reached the stage at which they are capable of feeling pain. A Bill making its way through the US Congress would introduce such measures across all 50 states. It awaits the approval of the US Senate. Surely, what is good enough for some American unborn children should be good enough for Irish unborn children.

At the Oireachtas committee on 29 November 2017, I raised this issue with the aforementioned Mr. Peter Thompson who is involved in carrying out late-term abortions in certain cases. I got the distinct impression that I was asking him questions he had never before been asked because late-term abortion has been so normalised in Britain, where the great and the good nod their heads sagely and say that it is sometimes necessary. It was very clear from Mr. Thompson's references to the document from the royal college that while he sought to allege it is less likely that there is foetal pain, he did not have the language of certainty and appeared to be a stranger to the available research. How can a man who is involved in late-term abortions not be concerned to engage in precautionary pain relief, at least? What is so wrong with the precautionary use of an anaesthetic, particularly in late-term abortions? The amendment clearly provides for situations involving potential risk to the mother's health. What does it say about the great and the good of medicine that people so directly involved in late-term abortions are inclined to hedge when asked a question about what would be appropriate in terms of pain relief?

It has been regularly stated that the question of the administration of pain relief post-20 weeks' gestation promotes a view that women seeking late-term abortions are heartless and insensitive to the welfare of their unborn child. It has been repeatedly stated that this is an attempt to characterise obstetricians as inhumane and to reinsert the view that abortion is barbaric and not the normal, routine procedure this legislation would like to make it. Deputy O'Connell repeatedly made the point that raising the issue of foetal pain is about the "historical contamination of not trusting women". That is the language of evasion and the refusal to deal with medical scientific human realities because this is not about judging anybody but, rather, recognising that this legislation legalises abortions, including late-term abortions in certain situations and without a time limit under one particular heading, and that, therefore, the idea that there should be a requirement to administer precautionary pain relief should not be controversial.

Whether pain relief is administered should not be a matter of how humane the doctor is. It is not a matter that touches on whether the woman is able to access an abortion. It is not asking much for a merciful adjustment to this legislation. It would require that, where a baby is believed to have reached the stage of 20 weeks of gestation, having regard to the emerging international evidence about foetal pain, no more and no less than what the science shows, there would be the requirement to administer pain relief, just as there would be if surgery was being done on an unborn child in the womb. That is what is being asked for, and sometimes specific pain relief for the child. Generally I understand pain relief in the context of analgesia given to the mother. As I said, we have not had a debate about when pain is felt, or whether pain relief is ethically justified or required, because to do that is to go down what the Minister might like to call a rabbit hole. It is not a rabbit hole. It is a real human issue that flows from the injustice of this legislation.

I support Senator Mullen on both amendments in the area of foetal pain. The objective of these amendments is to create a duty to ensure that an unborn baby feels no pain during the actual abortion procedure where appropriate and practicable in the judgment of the treating doctor. The amendment would have the effect of ensuring that a baby who is about to have his or her life ended during a late-term abortion would not be exposed to the additional horror that he or she might feel pain during the procedure. Where the gestational age of the baby is 20 weeks or later, an anaesthetic should be administered prior to the termination taking place. The amendment makes clear that this obligation would be necessary in an emergency case, where practicable, or where it is believed that an anaesthetic or analgesic might introduce a risk to life, or of serious harm to the health of the pregnant woman.

Any society with the slightest respect for human life would amend the Bill to provide pain relief where an unborn baby may otherwise experience pain. It is disturbing that this provision would not be included in the Bill. Some abortion supporters argue that unborn babies do not feel pain, or at least not until well into the third trimester. These claims are well and truly contradicted by modern evidence and updated science.

The Citizens' Assembly devoted very little time to this issue. In fact, there was less than an hour devoted to exploring the scientific evidence around this area. That is regrettable given the wealth of scientific evidence that is available, and it would be wrong for us, as Oireachtas Members, not to explore the available scientific evidence available ahead of rushing through this legislation which could have grave implications for pain. The public did not vote to deny unborn babies pain relief during late-term abortions. In fact, like so much else, it was never discussed in the referendum campaign in a way that gave voters an opportunity to consider the issue at all. It now falls on us to decide whether we believe babies should receive pain relief before their abortion. It would be unconscionable for anyone to vote on this amendment without first, in good faith, examining the facts and the reality of what happens in other countries where no provisions exist to ease the suffering of the babies in these situations. Babies in the womb are seen to have a physical and biochemical response to injury and research shows that pain and stress may affect foetal survival and neurological development.

As has been stated, there is a growing body of evidence to suggest that unborn babies can feel pain around 20 weeks' gestation. We know that if the advice were to be obtained from people like the master of the National Maternity Hospital, Dr. Rhona Mahony, she would argue that pain is not felt by the unborn baby until somewhere in the region of 26 or 27 weeks. She said that when she addressed the students' union debate in UCD on 4 April this year. However, that is in stark contrast to the wealth of scientific evidence which is now available showing that newborn babies have a unique nervous system which makes them respond differently to pain than adults.

In research that has far-reaching implications for the medical and surgical treatment of infants, scientists have found that newborn children feel pain longer and more sensitively. In premature babies the mechanism that allows older children and adults to dampen down the pain messages does not work properly. Until recently it has been presumed that a baby's pain system was too immature to function properly or that they reacted in a similar way to adults, but less efficiently. Researchers at University College London have now discovered that babies' sensory systems have a unique pain signalling mechanism which disappears as they grow older. In the absence of confirmatory communication because of the inability of this foetus to tell us of his or her pain, medical practice and science judge that pain exists when anatomical structures necessary to pain sensation are in place and when physiological responses normally associated with pain occur. If the biological sensory machinery exists, which science proves that it does, if something causes a response like that which pain can cause, and if that something would elicit the same response from human beings generally, then we can deduct that pain occurs.

According to leading medical experts in the field of prenatal surgery, an unborn baby certainly feels pain at 20 weeks' gestation. I want to quote some of that research. In 2004, Dr. Robert White, a brain surgeon and neuroscientist at Case Western Reserve University, testified in a US District Court that, by the 20th week, the unborn baby not only feels pain but has higher pain sensitivity than adults. I want to repeat that because it is the basis of our amendment. Dr. White, a brain surgeon and neuroscientist at Case Western Reserve University, testified in a US District Court that, by the 20th week, the unborn baby not only feels pain but has higher pain sensitivity than adults.

Dr. KJS Anand's groundbreaking study of foetal pain showed that sensory receptors begin developing at seven weeks. They spread to the whole face, palms and hands by 11 weeks, the trunk, upper arms and legs by 15 weeks, and the rest of the body by 20 weeks. Again, our amendments would cover that. The sensory part of the brain called the neocortex begins developing at eight weeks and is fully formed by 20 weeks.

A prenatal anaesthesiologist at Vanderbilt Hospital noted that, under minimal anaesthetic, the foetus moved away from the scalpel and visibly flinched when touched by the knife. In consultation with a paediatric pain specialist, he raised the anaesthetic and has since assisted at 200 operations without observing any flinching and other signs of foetal pain. Again, that is further proof.

Further proof is provided by an Indian expert group study on foetal anaesthesiology, which identified and determined that the foetus feels stress and anaesthesia for in utero surgeries. The unborn baby's nervous system not only feels but remembers pain and the same study showed that stress was being felt as early as eight weeks. The Journal of the American Medical Association promotes the use of anaesthetics for foetal surgery. It is also worth noting that only decades ago newborn and premature babies did not receive pain relief during surgery as doctors considered that their systems were too immature to sense pain. We know now from the scientific evidence that is advancing all of the time that that situation has moved forward. Data in the British Medical Journal and The Lancet give solid confirmation of such pain. I am sure that the Minister or his officials have consulted with both journals, and if not they certainly should have. It is known that the foetal umbilical cord has no pain receptors such as does the rest of the foetal body. Accordingly, the tested foetal hormone stress response comparing the puncturing of the abdomen and of the cord observed that the foetus reacts, for example the liver needling with vigorous body and breathing movements but not to cord needling. The level of these hormones did not vary with foetal age. This goes to point again at the pain.

Another British study commented on this as well. It said that it cannot be comfortable for the foetus to have a scalp electrode implanted on its skin to have blood taken from its scalp or to suffer the skull compression that may occur even with spontaneous delivery. It is hardly surprising that infants delivered by difficult forceps extractions act as if they had a severe headache. This underlines again that they feel pain. The American Medical News has reported that physicians know that foetuses feel pain in America because, among other things, nerves connecting the spinal cord to peripheral structures have developed between six and eight weeks. Adverse reactions to stimuli are observed between eight to ten weeks.

I am a mere Senator raising these points and that is from my research. The Minister has the Department of Health and the Government research available to him. I hope he has consulted with researchers in this area around foetal pain. I would be interested to hear whether the Minister agrees with the results or findings of the research I have outlined. If he does not, he should give his rationale for same. If he does agree, why will he not consider supporting or accepting this amendment? This is a minimal amendment, which tries to provide a humane element to this Bill, despite the fact that the abortions will proceed, to ensure the unborn baby does not suffer in the process by feeling acute pain, as has been mentioned. I am not a scientist but if the scientific data state they do feel pain, we should be adhering to that position. To play devil's advocate, were the response from the Department of Health to be that it is not sure, should we not be erring on the side of caution, just in case? I would have thought a humane society had an obligation to do that.

I cannot accept the proposals to include a separate section in the Bill that provides for the administration of anaesthetic or analgesic to a foetus.

Senator Mullen quoted extensively what I said in the Dáil regarding a similar version of this amendment, which was submitted on that occasion. As I explained in the Dáil, the purpose of this legislation is not to regulate the practice of obstetrics but is to set out in law the grounds upon which termination may be accessed. The regulation of obstetric practice is not done through this piece of legislation. If it were done, I am sure the Senator would be coming forward with many amendments about how to care for the woman, and how she should be dealt with in this situation, but the Senator has not. The Senator recognises that this Bill does not regulate obstetric practice. There is no treatment plan or care pathway for a woman in this legislation, nor for a foetus or indeed as we have discussed in previous amendments, for a newborn baby, as can arise in some of the situations we discussed earlier. There are, however, requirements in sections 9 to 12, inclusive, for medical practitioners to be of the reasonable opinion formed in good faith. This emphasises that doctors must maintain their professional standards and must uphold medical ethics. It is simply not appropriate to include compulsory care pathways or treatment plans in legislation, and we do not do this in health legislation. This type of detail is best set out in clinical guidelines rather than in primary legislation. I have previously assured the other House and I am happy to reassure this House, that in parallel with the service planning and expansion work, the clinical guidelines for medical practitioners in termination of pregnancy are also in preparation. Were I a man or a woman going into the health service, I would like to think those clinical guidelines were being drawn up by clinicians and not by politicians or people, including myself, who are not qualified to make such decisions.

We, as policy makers, set out the grounds upon which something should be legal. The clinical operation of those grounds belongs to clinicians. I really believe that this amendment, previous amendments and indeed some of the next amendments are the worst case of "let them deny it" politics. I already saw this in the Dáil, with claims to the effect the Minister voted against giving an unborn baby pain relief. No. I did not. Nor will any Senator in this House who votes against this amendment. They will vote to trust that clinical guidelines and clinicians know a hell of a lot more about the administration of medication than do people in this House.

I can understand the ideas behind this proposal. I would be horrified to think, however, that a doctor would not take these circumstances into account. Any decent humane doctor and somebody who specialises in obstetrics and gynaecology will be interested in the welfare of women and the child. I cannot encompass a situation where a doctor would willingly cause pain to a foetus. Although I understand the motivation of the amendment, I fully accept what the Minister says. I accept the principles but I do not think it is appropriate in this Bill.

I continue to thank Senator Norris for his very respectful disagreement with me and it is appreciated because many people regard it as an enormously tragic development in Irish life that we have abandoned the two-patient model and that we have lost empathy officially with unborn children. I am sorry to have to say that the Minister is back to the Orwellian doublespeak when he says that this Bill is not about regulating obstetric practice.

I have pointed out to the Minister that there is legislation he supported that requires the administration of pain relief in certain situations to animals. I note that he did not answer that.

It has nothing to do with this legislation.

There are certain phrases that get used in politics, a Chathaoirligh, which include "This has nothing to do with the amendment", "This is not appropriate for legislation", "This could have unintended consequences"-----

I did not say that.

----- or "This would cause a charge on the Exchequer". Time and again, politicians bring politics into disrepute by hiding behind spurious, technical arguments. This amendment does not specify the "how" of pain relief, or which drugs should be used any more than this legislation does not get into the details of the care path and the treatment plan for women in this situation. For the Minister to compare the simple direction that pain relief be administered in the light of the best available evidence with getting into the detail of the appropriate clinical treatment of women is simply disingenuous. It is a false comparison and a false analogy.

It disrespects politics to engage in this kind of verbal wordplay. This legislation does not tell doctors how to do it - it tells them what they must do. In answer to my friend, Senator Norris, if Ireland was the first country to legalise abortion there might be some reason to assume that doctors carrying out abortions would at least try to administer pain relief where they suspected, even if they are not always certain, that pain might be felt by the child. One of the appalling realities of abortion in the western world is that it is tied in with ideology. That ideology refuses to countenance any aspect of the humanity of the unborn child. That is why I went into some detail - but not too much detail - about my engagement at the joint committee with the neonatologist, Mr. Peter Thompson. It was to demonstrate how shifty and uncertain he was when the question of pain relief was put to him.

The Minister is trying to communicate without going into detail because detail is dangerous for the Minister. Detail exposes the recklessness and cruelty of this legislation so the Minister avoids details by saying "I trust doctors". In reality, doctors who carry out abortions do not administer pain relief. If the Minister can show me the rules that apply in abortion regimes and jurisdictions about pain relief being administered to unborn children who are being aborted at a certain term of pregnancy, I would be very impressed because it would be more than he did in the Dáil. Internationally, in cases of abortion it is not considered necessary to administer pain relief. That is a hugely controversial judgment because it contradicts the emerging evidence that pain is felt. There is a political reason, rather than a medical or therapeutic reason, for not giving pain relief to unborn children who are being aborted. It is because it raises the question of whether it is right to abort human creatures who can feel pain.

The Minister and I will both have to grow old and we will both have to look at the things we have done in life. He may feel he is doing some good but I doubt if he will look back on this as his finest hour, when he is not willing, in light of the emerging science, to give a simple direction to the medical profession that, although the unborn child no longer has the right to life and the ending of the life of the foetus - even in late-term situations - is permitted by law, the basic humanity of pain relief is to be given. It is not acceptable to say this is a matter for doctors because we know that doctors who carry out abortions do not give pain relief in these situations. The humanity of the unborn is being denied.

Abortion is, in some situations, physically cruel and the Minister is being asked to at least mitigate the wrong of introducing abortion by insisting that, outside emergency situations and where there is no risk to the mother's life or health, relief is administered where there is reasonable belief that pain might be felt. The least the Minister could have done is allow this merciful amendment through.

It is wrong to portray the medical profession in the way it is being portrayed. Every doctor in every hospital in this country will do their best for their patients and perform any procedure in a proper and humane manner. To say otherwise in this House is totally wrong.

The Minister has made his response, which is obviously not acceptable to the Senator and his colleague who proposed the amendment. There is something futile about pursuing the Minister on this because, even if the Senator speaks for another hour, he will not answer.

If there was a question for the Minister I would agree but he has said his piece. Note, I spell the word p-i-e-c-e, and not p-e-a-c-e.

Maybe it should be p-i-s-s.

I do not want to tie the Senator up in knots but that is the practical situation. The Minister, on behalf of the Government, does not agree with the amendment but the Senators want to continue with a repetition of their points.

I will be very brief and will not repeat myself. I thank the Chairman because he has been very fair. Senator Colm Burke and Senator Norris mentioned doctors and the Minister has a soundbite which is, "We should trust doctors". This is not about not trusting doctors - this is about supporting doctors by putting a public policy position in place which would be universally accepted across the State. It is not about administering pain relief prior to 20 weeks on some whim, or doing it one day and not another. We propose to put it in the legislation so that it is universally available because the scientific information backs it up. We are making this legislation today but who is to say that in days, weeks, months or years to come, termination of pregnancy services will not be provided through public hospitals but will be the subject of tender processes to private providers through a service level agreement? This amendment would deal with that.

There are many more points that I could make but it is very sad that the Minister is not willing to engage with, or even acknowledge, the scientific facts. I asked him two questions. One was if he would agree or disagree with the scientific evidence I have outlined to the House. The other was on which scientific investigations the Department carried out on unborn babies feeling pain at up to 20 weeks. Surely a scoping would have been done on the available research. If the Minister is not willing to accept the amendment I would like to know the Department's position around the issue of the pain a baby may experience at 20 weeks. Maybe the Department knows something I do not know. It is bad enough to proceed on the basis that babies will be aborted, and we have different views on that, but we should all be united on the basis that if we allow abortions to proceed, at least the aborted babies would not feel pain during the process. That is all we are looking for.

Amendment put:
The Committee divided: Tá, 6; Níl, 27.

  • Coghlan, Paul.
  • Freeman, Joan.
  • Mullen, Rónán.
  • O'Mahony, John.
  • Ó Domhnaill, Brian.
  • Wilson, Diarmuid.

Níl

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Dolan, John.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • Norris, David.
  • O'Sullivan, Grace.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Ruane, Lynn.
Tellers: Tá, Senators Joan Freeman and Brian Ó Domhnaill; Níl, Senators Gabrielle McFadden and Catherine Noone..
Amendment declared lost.
SECTION 14
Question put: "That section 14 stand part of the Bill."
The Committee divided: Tá, 27; Níl, 7.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Dolan, John.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • Norris, David.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Ruane, Lynn.

Níl

  • Coghlan, Paul.
  • Devine, Máire.
  • Freeman, Joan.
  • Mullen, Rónán.
  • O'Mahony, John.
  • Ó Domhnaill, Brian.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and Catherine Noone; Níl, Senators Joan Freeman and Rónán Mullen.
Question declared carried.
SECTION 15
Question put: "That section 15 stand part of the Bill."
The Committee divided: Tá, 28; Níl, 5.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Dolan, John.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McDowell, Michael.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • Norris, David.
  • O'Sullivan, Grace.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Ruane, Lynn.

Níl

  • Coghlan, Paul.
  • Mullen, Rónán.
  • O'Mahony, John.
  • Ó Domhnaill, Brian.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and Catherine Noone; Níl, Senators Jennifer Murnane O'Connor and Brian Ó Domhnaill..
Question declared carried.
SECTION 16

I move amendment No. 37:

In page 11, line 24, to delete "serious".

Amendment, by leave, withdrawn.

On a point of order, the time limits are too short. I walked about 60 yds to be here and I was excluded twice. I object to that.

The last two votes were short because they were on top of one another. It was two and one.

What am I to do? Should I loiter around outside the House?

Yes. Loitering with intent.

No. It was a fair division and I was denied it.

I will bear that in mind but when the vote is called it is either a four and four or two and one. I do not count the minutes. I take advice.

All I am saying is the minutes were not properly counted.

We will register the Senator's complaint.

I move amendment No. 38:

In page 11, line 27, to delete "appropriate" and substitute "necessary".

Amendment, by leave, withdrawn.

I move amendment No. 39:

In page 11, line 27, to delete "avert" and substitute "mitigate".

Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17
Question put: "That section 17 stand part of the Bill."
The Committee divided: Tá, 27; Níl, 5.

  • Bacik, Ivana.
  • Black, Frances.
  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McDowell, Michael.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • Norris, David.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Ruane, Lynn.

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 18 agreed to.
SECTION 19

Amendments Nos. 40 and 45 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 40:

In page 13, line 36, to delete "or section 12" and substitute ", section 12 certification or section 22".

Should I move both amendments?

Amendment No. 45 will not be moved at this juncture.

They are related.

The Senator may speak to both amendments but amendment No. 45 will be moved and formally dealt with later.

I understand. I will take the opportunity to speak to amendment No. 45 which deals with the matter of parental notification. I stress that it relates to parental notification and not parental consent. Given that the age of consent for medical treatment in Ireland is 16 years in virtually all cases, surely this age of consent should also apply to this most serious matter of termination of pregnancy, which ends the life of unborn children. We cannot or should not allow a position to develop whereby children under 16 could have a termination of pregnancy without, in the normal course, the knowledge or consent of their parents. We would not allow this for any other serious procedure and we should not allow it in this case.

Parents have a right to know about such a serious matter as a crisis pregnancy arising in their children. It has potentially far-reaching consequences for those children from a medical and emotional perspective. Abortion is a life-ending event for the unborn baby but it can very often be a life-changing event for the mother. The Minister has not been willing to engage with the facts that underlie the proposal to provide abortion or with the different kinds of positions that can be involved other than to mention them for the effect of an emotive argument. He has not been willing to tease through the reality of what legalising abortion can mean in cases that are different from each other. With regard to abortion on the grounds of a risk to life or a risk of serious harm to health, the point has been made, though not engaged with by the Government, that where an abortion occurs as a response to a mental health challenge or crisis, there is no evidence to show that abortion is beneficial. That is according to the best available literature reviewed and analysed by objective scholars. The evidence conflicts on whether abortion can cause adverse mental health sequelae. What is true is that abortion is associated with elevated adverse mental health sequelae in particular cases where women are young, for example, or unsupported and so on.

In speaking about parental notification we are talking about exactly the kind of position where there might be adverse mental health sequelae or where these are more likely than in other cases. Therefore, it should apply a fortiori that parents would be notified about this procedure because of their responsibility for the welfare of their child. We should not allow a position where children face into a crisis pregnancy alone and without the knowledge and support of their parents. I accept there are cases where parents will want their child to have an abortion and there have been cases where parents have forced their children to have an abortion. There are cases where parents have taken the view that abortion is the best thing for a child. I disagree with that view but I would never question the primary responsibility of a parent to see to the welfare of his or her child, supported and not replaced by the State. It is not right normally to provide for a position where a child could have an abortion without a parent's knowledge or consent. It is not at all right that this legislation should be silent on the matter of parental notification. I have confined my amendment to notification and I have not gone so far as to require parental consent.

This is a limited amendment proposed in the knowledge that the deafening silence from the Government and its unlistening ear are a reality in our Seanad discussion of this Bill. Irrespective of whether people agree with me that parental consent should normally be required for abortion in the case of an underage person, most people should agree that it should not happen without parental knowledge, unless there are exceptional circumstances that are provided for with our amendment.

There are 21 countries in Europe with a requirement for parental notification for women under 18 years and 36 states in the United States have a similar law. These are jurisdictions where there is effectively abortion on demand. I have asked the question several times now with respect to other amendments so I must ask it again. The very European countries that the pro-choice Members of this House have extolled for years or decades as being some kind of utopia for women's reproductive rights have provisions virtually identical to those contained in the amendment I propose, so why is it being opposed? If it is good enough for women in countries with liberal abortion regimes, why is it not good enough for Irish women?

There was a spurious and over-the-top objection to a similar amendment on Report Stage in the Dáil. Deputy Coppinger stated:

In many cases, it was being raped by their fathers that caused them to become pregnant. Essentially, this amendment would open the way for the rapist to have a veto over the right of a girl to have an abortion.

The referendum may be over but comments like that show that hysterical scaremongering is set to continue.

That has happened on many occasions. The Senator's comment is unfair.

Girls get raped.

It is not relevant to this section.

I ask the Senator to speak on the section.

The notion that a rapist would seek to prevent a girl having an abortion is a novel one. The Deputy making that comment should be aware that there is much evidence from the neighbouring jurisdiction and other jurisdictions that abortion is used to cover up rape and sexual abuse, with the guilty party putting a girl or woman under duress to have an abortion in order to cover up their crimes. That is the real issue, not the ridiculous scares raised for the sole reason of attacking a perfectly reasonable amendment.

The Minister told the Dáil there was no need to put this in legislation. We have heard that many times. He also stated that we already have provisions for medical consent in the medical consent guidelines. However, the guidelines do not inspire confidence in this regard. Section 18 of the 2016 edition of the Medical Council's Guide to Professional Conduct and Ethics for Registered Medical Practitioners states:

When patients under 16 want to make a healthcare decision without the knowledge or consent of their parent(s) or guardian(s), you should encourage them to involve their parent(s) or guardian(s) in the decision. If a young person refuses to involve a parent/guardian, you should consider the young person’s rights and best interests...

It then lists a number of considerations, including their maturity and their physical and mental health, that are to be taken into account. The guidelines then state: "You should provide treatment for young people without informing their parent(s) or guardian(s) if, having considered the factors in paragraph 18.5, you consider that it is in the patient’s best interests to do so and the patient has sufficient maturity and understanding to make the decision." Clearly, the guidelines envisage circumstances where a girl under 16 years can receive medical treatment or a procedure - I quibble with legitimising the notion that abortion is medical treatment in all but very rare circumstances - under this legislation, without the knowledge of her parents or guardians.

The Minister also referred in the Dáil to the HSE's document, Consent: A guide for young people, published in 2013, and indicated that it also deals with the issue. This guide states:

If you are under 16 your parents will usually also be involved in decisions about your health and their permission will usually be sought for your medical treatment or any care to be provided to you. The National Consent Policy recommends that in exceptional circumstances the doctor or other professional may decide you are mature enough to understand what is involved in your treatment and to make a decision by yourself. In those situations he or she may provide the advice or treatment to you if it is in your best interests but he or she will advise you that it is best to have your parents involved.

This HSE document takes a very similar approach to the Medical Council guide. Clearly both the Medical Council guidelines and the HSE guide to consent envisage a situation where a girl under 16 years can have medical treatment without the knowledge or consent of her parents. Presumably this would extend to an abortion under this legislation. I and I am sure many others regard this as hugely problematic. I was amazed that the Minister was so relaxed about it when the issue was dealt with in the Dáil. If a girl under 16 years is pregnant, in the eyes of the law she may well have been the victim of a sexual offence.

I ask the Senator to speak to the amendment.

That is what I am doing.

The Senator is making a Second Stage speech.

I am giving the rationale for this amendment.

The Senator is not doing that.

Please allow the Senator to speak without interruption.

Potentially in the absence of any statutory provision, and relying on the Medical Council and HSE guidance, a circumstance could arise where a doctor becomes aware of some key information, namely, that the girl is pregnant and that this may be as a result of a sexual offence committed against her. How can we stand over a situation where a doctor does not have a legal duty to inform parents of earth shattering news such as this? Doctors should have duty in all cases, except where I have provided otherwise in the amendment, to inform a girl's parents or guardians of this. We have had too many investigations in this country to deal with the fallout of persons in authority failing to report important information. We have seen several situations where doctors and a range of other professionals were aware of the signs of abuse but did not act. It is incredible that in the wake of several such cases, there is still no absolute duty on doctors to notify parents of a pregnancy in a child under 16 years or any other evidence of sexual activity which may amount to sexual offences having been committed against their child.

I appeal to the Minister to accept the amendment. If it is not accepted, I implore him to consider accepting a more narrowly drafted amendment on Report Stage that would deal solely with the issue of the age of consent. I ask the Minister to comment on that in his response. He indicated on Committee Stage in the Dáil that he might accept a narrower version of this amendment on Report Stage but none was forthcoming. It might be worthy of his consideration to indicate whether this can be achieved in the Seanad.

Neither the Medical Council guidelines nor the HSE policy document on consent has the status of law. As I said, both allow exceptions if the child is mature, it is in their best interests and so on. As a familial abusive situation could arise, my amendment provides that the High Court, "upon application made to it by any interested party, and if satisfied that it is in the best interests of the minor concerned, may make an order dispensing with any requirement for service provided for under this section." The use of the word "service" here means service of notification on the parent. The exceptional situation where it would not be appropriate to notify a parent is, therefore, provided for by reference to the role of the High Court. On reflection, I am not happy that the text of subsections (6) and (7) is clear. I have spoken to the principles of the amendment because I am anxious to hear from the Minister as to whether the Government is open to the principle or to the introduction of a narrower amendment on Report Stage. I will not press the amendment at this point but I will bring forward an amendment at Report Stage, which will depend on the Minister's reply.

My view is very simple. I believe the vast majority of children who become pregnant will do so as a result of crime. The exact circumstances of that crime, and whether the perpetrator was related to the child, connected to her, in a position of dominance or whatever, are irrelevant or simply a matter of casual connection. These are not matters of interest to me. I am looking at this simply from the point of view of a young woman or girl who is pregnant as a result of a crime. I am asking myself if we should accommodate in law a rule whereby her parents must become involved when she, in her own right, decides to defend herself against a continuation of a pregnancy which arises from a crime. I am against that. I am against the idea that there should be some mandatory arrangement whereby any young girl in that situation who takes the step of seeking help to terminate her pregnancy which has arisen as a result of a crime should be subject to some overarching arrangement in the law of the State that her parents much become involved as a matter of mandatory requirement in how this situation is dealt with. I am totally sympathetic to the notion that in the great majority of cases that would happen, however, in the greater scheme of things, it may not happen in many cases.

The fact that the parents of a girl in such circumstances must be informed might inhibit her from seeking help or an appropriate termination.

Senator Mullen has included as a kind of safeguard the idea that somehow that the High Court could dispense with that requirement, but that makes an absolute mockery of the girl's right to defend herself from the consequences of a crime. The idea that a High Court judge should be involved in determining the circumstances in which a girl would terminate such a pregnancy is grossly excessive in terms of being a safeguard, as Senator Mullen is suggesting in good faith, and also utterly intimidating to the girl. If an 18 year old woman is to be allowed to terminate a pregnancy without cause shown, the same right must be extended to a child without the statutory requirement to involve her parents in that decision subject to the right of the High Court to abrogate such requirement.

Let us be logical about this. Child pregnancies arise in many different situations. I do not suggest that the perpetrator would be a father, brother, cousin, boyfriend or total stranger in any particular case, but a girl in those circumstances faces the same consequence no matter how her predicament arose, the extent or absence of consent or her attitude to the perpetrator. I am totally opposed to the principle behind the amendment and the amendment itself.

I oppose the amendment too. It is far too rigid. We have heard a great deal from Senators Mullen and Ó Domhnaill about the humanity of the foetus, but what about the humanity of the girl? My sympathy is entirely with the girl in such a situation. Unfortunately and very regrettably, rape by a father is not as rare as some people seem to believe. It happens relatively regularly. It is a shocking event and in such circumstances the father may wish to inhibit the girl from having an abortion or force her to have an abortion. He may intervene in either respect.

I have no problem with the medical guidelines. Who could have a problem with them? A doctor treating the girl would, of course, ask if the girl's parents know and would in those circumstances, as rightly outlined by Senator Mullen, consider the best interests of the girl, which should always be to the fore. If the doctor decides that informing the parents is not in the best interests of the girl, that is fine. The idea that all parents would support their child in such a situation is not correct. Not all parents would support the child and there might be very bitter and unpleasant exchanges between the parents and the child.

The amendment strikes me as being like sneaking behind the girl's back and telling the parents. I do not like that at all. Young women may have reasons not to involve their parents. Some of those reasons might be specious and the doctor might be in a position to talk the girl out of them and persuade her that it would be far better for her parents to be involved.

I agree wholeheartedly with Senator McDowell that if a minor is seeking a termination, it is almost inevitable that a criminal offence will have been committed. I cannot think of a situation whereby one would not.

I oppose the amendment because it is too rigid and it violates the properly confidential relationship between the girl, as a patient, and her doctor.

The girl is a victim.

Yes, the girl is a victim. If a girl goes to a doctor and explains this intimate situation in good faith, it would be wrong for the doctor to unilaterally decide to inform her parents. The amendment amounts to compelling doctors to do so. It is wrong and I regret that it has been tabled because it shows a lack of sympathy for the girl in such a situation. I am sorry to have to say that, but that is my belief.

I wish to add to what has been stated by my colleague on amendments Nos. 40 and 45, which I support. I acknowledge that Senator Mullen outlined that these amendments will not be pressed here today but they have been tabled for a reason. Amendment No. 45 requires parental notification in respect of an abortion performed on a minor under the age of 16 except in circumstances where it is in the minor's best interests to dispense with such notification, such as if she was raped by her father, for example. We seek to give parents the right to know if their daughter under the age of 16 is having an abortion.

As the Minister will know, the general age of consent for surgical, medical or dental treatment is 16 under section 23 of the Non-Fatal Offences Against the Person Act 1997. However, in certain circumstances procedures may be carried out on children under 16 without consent. Any parent watching this debate or reading media reports on this issue would be shocked to learn that his or her child could undergo an abortion without his or her knowledge if the Bill is not amended. I have received representations from parents who are gravely concerned about this aspect of the Bill.

Other Senators have referred to situations involving an already vulnerable child who may have mental health challenges. The needs of such children must be considered. There is rightly much discussion of improving the mental health of our young people. However, surely not ensuring that a parent is notified when a child under the age of 16 is accessing abortion means that parents may be in the dark about what is going on with their child and will not be sufficiently equipped to help her.

The parents obviously were in the dark if she got pregnant.

Senator Ó Domhnaill without interruption.

During the discussion of this issue in the Dáil, the very exceptional situation whereby the father of a girl aged under 16 is responsible for the pregnancy was raised. It was again referred to by Senator Norris. Some Members oppose the amendment on the basis that it could empower the rapist in such very extreme situations to influence the girl's decision. Such situations are unquestionably horrendous, but it must be borne in mind that the amendment concerns the notification of the parents about a termination, rather than their consent to it. The duty to notify may be set aside by the High Court in certain circumstances. We will streamline that aspect of the amendment for re-introduction on Report Stage. The amendment is proposed as an addition to rather than replacement for the current section of the Bill which provides that nothing in the Bill will affect any enactment or rule of law relating to consent to medical treatment.

All Members will agree that parents should have an involvement in a procedure as serious as this being undertaken by a child. A 30-year longitudinal study carried out by Fergusson suggests that abortion may have serious negative mental health consequences for some women. In the case of-----

The author of the study challenged its use by the pro-life side.

It is a 30-year peer-reviewed study.

That may be so, but its author challenged its use by the pro-life side.

The obvious immaturity of children means that the level of support and care provided after a procedure such as abortion should be even higher than that provided to an adult woman. If a child attends a doctor other than the usual family doctor, the treating doctor may not be aware of the particular issues or challenges the young woman might face. Parents are naturally better equipped to deal with their daughter and any psychological issues that could arise for her after abortion.

It would be shocking if the parents or guardians of a child were not informed of such a momentous event in the child's life. All we are asking for here is that the duty to notify parents is included in the Bill to give total clarity to this. Again, this is about notification and not about consent.

Senator Mullen referred to the 21 European countries where this is provided for. In countries such as Germany, Finland and Spain, legal access to abortion is not available to girls under the age of 18 without parental consent. That is information from the World Health Organization. This amendment is not even seeking consent. It is only seeking justification.

During the Dáil debate, the Minister, Deputy Harris, suggested that this is already included in the Medical Council guidelines. There are a number of reasons that is not really good enough. The guidelines will change and inclusion therein is not a substitute for inclusion in primary law. The guidelines are equivocal and leave the decision up to the doctor. Section 18.5 of the guidelines states that if a young person refuses to involve a parent or guardian, the doctor should consider the young person's right and best interests, taking into account a number of considerations, which the guideline then lists.

Under section 18.7 of the guidelines, a doctor can provide treatment for young people without informing the parents or guardians if, having considered the factors in paragraph 18.5, a doctor considers it is in the best interests of the parents to do so and the patient has sufficient maturity and understanding to make the decision.

We have heard a lot throughout the debate about trusting doctors. I trust doctors but they are citizens and are subject to the law. To suggest they are less likely to be in breach of the law than people of other professions is absurd. The law is there to provide clarity, and clarity for doctors is something that the Minister, Deputy Harris, has referenced repeatedly as this Bill moved through the Houses of the Oireachtas. It is clear that the Medical Council guidelines, in themselves, are not sufficient and, accordingly, I urge the Minister of State, Deputy Daly, to accept this amendment and give the much-needed clarity to doctors and let parents be parents to their daughters, as is the case across 21 other European countries.

If they are safe and comfortable, they will tell their parents anyway.

I will not be accepting these amendments as they are not necessary. As many speakers have already alluded to, consent to medical treatment by minors over the age of 16 is governed by section 23 of the Non-Fatal Offences against the Person Act 1997. Furthermore, consent to medical treatment for minors is governed by case law, for example, the Gillick principle.

The issue of parental notification has been comprehensively dealt with in the HSE's guide to consent for young people, as has been referenced by previous speakers. The provision on consent in section 23 of the Bill does not make special provisions or requirements for any particular group on consent and I do not intend that this will change. While I am aware that a case is sometimes made for special provisions to be put in place around consent to termination of pregnancy for adolescents, I am of the view that issues around consent arise across medical practice and are not limited to this particular issue. Such issues equally arise regarding contraception, gender realignment, cosmetic surgery and, in fact, any and all other areas of medicine and healthcare which affect adolescents.

This being the case, if they are to be examined, I believe these issues are of a sufficiently serious nature to warrant examination on their own merit and not to be relegated to a single clause in this legislation.

I thank the Minister of State for his response. I will have the opportunity to consider what the Minister of State and Senators McDowell, Norris and others have said. I am loath to disagree with somebody of Senator McDowell's eminence, but I think the issues are different here. The provision of abortion without cause shown is one thing. The requirement for notification does not interfere with the provision of abortion. However, particular circumstances arise where the girl is a minor. The compulsion here is not on the girl but on the certifying doctor. All sorts of applications are made to the courts on a daily basis concerning child welfare. It would be wrong to present that as a kind of spectre of an onerous burden on the girl involved.

I say to my friend, Senator Norris, that it is not a lack of sympathy that underlies this amendment, but disagreement about what is the appropriate way to show sympathy and compassion in this situation. I agree with my colleagues when they say the girl is a victim. If she is the victim of a crime for which one of her parents or guardians is responsible, that situation is appropriately dealt with in this amendment by the possibility of an application to the court not to notify the parents. With the best will in the world-----

Does Senator Mullen think the parents would not find out?

I will come to that. Addressing the comments of my friend and colleague, Senator McDowell, if it is another kind of a crime, I would have thought that the balance of advantage lies with this requirement for notification of parents. Unless it is believed that the parents are somehow complicit in the crime, it would surely be wrong to contemplate notifying various civil authorities, such as the Garda and health authorities, but not to require notification to the parents, particularly in circumstances where something with such potentially far-reaching consequences for a young woman as abortion which is final not just for the unborn child but may also have far-reaching consequences for her. If it relates to non-criminal behaviour, and here is where it comes to what Senator Norris rightly asks, parents who are reasonable and hard working, struggle at times and there are times when parents-----

Not all parents are reasonable and hard working.

Indeed. There are times when even parents who are reasonable and would regard themselves as attentive will struggle to know about things. Every day we hear about the remarkable ignorance of parents about things that are happening to their children. I use the word "ignorance" in its non-judgmental sense.

Exactly. I thank Senator McDowell. Parents can be unaware of things that are happening to their children. All of those point to the appropriateness of parental notification, not to the opposite. I stress again that it is not a lack of sympathy. There have been cases of exploitation of underage women and the very people who exploit them are often the ones who arrange for the abortions to happen. This requirement of parental notification is one aspect of erecting some kind of a safeguard in that situation.

With all of that said, I will consider what my colleagues have said in the preparation of the amendment for Report Stage.

Amendment, by leave, withdrawn.
Question, "That section 19 stand part of the Bill", put and declared carried.
SECTION 20
Amendment No. 41 not moved.

Amendment No. 42 is in the names of Senators Mullen, Ó Domhnaill and Coghlan. Amendments Nos. 42 and 43 are related and may be discussed together, by agreement.

I move amendment No. 42:

In page 14, line 23, to delete “out.” and substitute the following:

“out;

(e) the address at which the termination of pregnancy was carried out;

(f) the age, marital status, ethnicity, gravidity and parity (including the numbers of any previous pregnancies resulting in live births, stillbirths over 24 weeks, spontaneous miscarriages, ectopic pregnancies and previous terminations of pregnancy) of the pregnant woman in respect of whom the termination of pregnancy was carried out;

(g) the length of the pregnancy at the date on which the termination of pregnancy was carried out;

(h) whether the pregnancy was singleton or multiple (specifying how many);

(i) the date and the method of foeticide, if used;

(j) the dates, methods and medical agents used to effect termination of pregnancy,

(k) where the termination of pregnancy was a selective termination, the original number of foetuses and the number to which they were reduced;

(l) where a termination of pregnancy has been carried out under section 11, the condition affecting the foetus and the method of and grounds for the diagnosis of that condition;

(m) whether a live birth followed the termination of pregnancy, and, if so, the care given to the baby and its outcome;

(n) if the death of the woman occurred as a result of the termination of pregnancy, the date and cause of death;

(o) such other information as may be prescribed.”.

This amendment is one that I regard as essential. It is an amendment to section 20 which concerns reporting and notification of information.

Section 20, which provides for notifications, states that where a termination of pregnancy is carried out in accordance with the relevant sections, the medical practitioner has various requirements to keep records, in the prescribed form and manner, and to forward them to the Minister. The information specified in the section is limited to the Medical Council registration number, the section under which the termination of pregnancy was carried, the county of residence for some reason, and the date on which the termination of pregnancy was carried out.

The aim of the amendment is quite simple. It is designed to apply the same information gathering and reporting standards to the Irish abortion regime as those that apply in the UK. For decades, the UK has been portrayed as some kind of utopia for reproductive rights, so-called, yet now, when proposals are made to mirror key aspects of the UK system in terms of reporting requirements, supporters of the Bill have competed with each other to denounce the measure as being too restrictive, an insult to women and so forth. Last week, this was brought to a ludicrous new depth when Deputy Joan Burton attacked the proposed reporting requirements, stating that the kind of language used struck her as being from the school of the deep south of the United States.

The measure was, she said, "really designed to extract information from women that will shame them." If that is the Deputy's view of what has been going on in Britain since the legalisation of abortion-----

I ask the Senator to stick to discussing the amendment.

Yes. This amendment is about bringing the notification requirements in Ireland to the same point as applies in Britain.

Again, we are speaking about the other House. It would be great if the Senator kept on point.

The point is that it is simply wrong to suggest that an amendment that seeks to mirror an aspect of the UK regime somehow shames women. I think that shows how much the goalposts continue to move on this issue. These restrictions apply not just in the deep south of America but have been introduced in many US states in recent years but that is a debate for another day.

Each of the categories outlined in this amendment are part of the mandatory data collection on each abortion carried out in the UK. I will make a key point. Such information was considered vital to addressing health inequalities and improvements in public health policy, as well as maintaining consistency-----

(Interruptions).

Can we have only one person speaking in the House, please?

-----and continuity in healthcare data.

Supporters of the Bill will be familiar with the Guttmacher Institute, a think tank that is bankrolled by an organisation called Planned Parenthood, which is the largest and most profitable abortion business in the UK. Planned Parenthood made $100 million last year and its CEO is paid just shy of $1 million. Last year, representatives and affiliates of the Guttmacher Institute were invited to give evidence to the Oireachtas Joint Committee on the Eighth Amendment of the Constitution, as so-called independent and impartial witnesses. Even the institute accepts that it is hard to assess the impact of abortion laws on safety and so forth where data collection is inadequate.

As everybody will accept if he or she is being honest, the ultimate intention at some point in the near future is that abortion services in Ireland will be provided by private clinics operating for profit. That is my belief. It is the logical extension of the reality that the public system will struggle badly to cope with the sudden introduction of this service from next month. Dr. Boylan and others have more or less admitted this. This is another key reason data collection needs to be of a high standard from the outset and the law must be prescriptive with respect to the data that are required to be recorded. We cannot allow for the development of a situation where self-regulation or self-assessment of this kind of information is permitted in the case of private clinics or abortion providers which may have a service level agreement with the State.

We know from analyses conducted elsewhere by groups, including the Guttmacher Institute, that this may lead to circumstances in which reports on the level and type of abortion that result are disparate and inaccurate. The Guttmacher Institute has stressed the need to obtain baseline and follow-up estimates of a range of indicators that help to assess the impact of an abortion law. These vary from abortion incidents, related morbidity and its severity, mortality due to unsafe procedures, the circumstances under which women terminate pregnancies, and the characteristics of women using legal services. These are exactly the kinds of information that this amendment requires. If that is good enough for the Guttmacher Institute, whose representatives were invited to Leinster House last year, why is it not good enough for the supporters of this Bill?

The amendment also represents best international practice beyond the UK. Since 1969, the Centers for Disease Control and Prevention have published annual reports on the incidence of abortion in the United States. We know that 46 US states require hospitals, facilities and physicians providing abortions to submit regular and confidential reports to the state. I repeat that 46 states in the US require the collection of similar data. The requirement extends far beyond the deep south, as it was referred to pejoratively in the other House. We must have robust, statutorily protected data measures. If, at some future point, it can be proven that these measures are onerous or overly prescriptive, the legislation can be amended to reflect that position. We cannot simply airbrush the difficult or challenging statistics that confront us with the practical day-to-day reality of what abortion involves. Those who support the Bill do not want women to be shamed or abortions to be hidden away or covered up. In that case, why do they not want the fullest information to be gathered on the practice in Ireland and presented in a completely anonymised fashion? By setting the recording requirements at an absolute minimum, that is exactly what will be done. What we will also do is send a message that the manner and circumstances in which the lives of unborn children end is of real consequence and deserve to be of some statistical consequence at least.

In an attempt to deflect from this amendment, or a similar amendment, and in search of reasons to oppose it, the Opposition focused on the reference to ethnicity, one of the issues that would be required to be reported. Again, ethnicity is included because it is the standard followed by the national health service, NHS, in the UK, which adapted it from the set of 16 ethnic categories developed for the population census by the UK Office for National Statistics, in conjunction with the UK Equality and Human Rights Commission. From that point on, it has been a required part of the data recording with respect to abortions carried out in England and Wales.

Reference to ethnicity was also considered important because the UK Equality and Human Rights Commission felt it was appropriate that those people accessing abortion should have the right to self-identify with a particular ethnic group. Opponents of this amendment surely cannot claim that the UK Equality and Human Rights Commission is subtly encouraging ethnic profiling or racism. Such information was considered vital to addressing inequalities and improvements in public health in commissioning functions. It has long been acknowledged that in Ireland those from certain ethnic backgrounds and members of the Traveller community, for example, have poorer health outcomes in society as a whole. Surely we should gather these data on abortion. Otherwise we will have no way of knowing if there are disparities of care within and between different ethnic groups, we will have no knowledge of facts that will be relevant to providing for the welfare of citizens, and we will have no access to knowledge that could identify problems in particular subgroups in society and so on.

It would be a perverse irony if this Bill was about importing everything from the UK except the requirement to keep statistics. Good policy and health planning systems depend on people being able to know what is happening. Medical and statistical experts crunch information and policy decisions flow from the good and accurate collation of information.

The amendment extends the requirement of information to be notified. It does not in any way interfere with a service that is being legalised. Instead, it would provide important information on which future policy decisions could be made.

Surely it is not the Government's intention to keep people in the dark on how abortion services operate in Ireland, or perhaps it is. I hope not and that the amendment will be accepted.

This is by far the nastiest amendment of the lot. I am absolutely horrified by it. I express my disgust that it has been tabled and do not give a damn if it reflects the law in England. This is an independent country and we should not slavishly follow what happens in England. Plenty of mistakes have been made there and this is certainly one of them. What on earth has a woman's marital status got to do with the price of eggs? It is rubbish. The provision on ethnicity is also rubbish. I have no idea what gravidity is. The amendment continues, "including the numbers of any previous pregnancies resulting in live births, stillbirths ... spontaneous miscarriages, ectopic pregnancies". It is so horribly intrusive and utterly disgusting. I do not know what a singleton is. It sounds like an American coinage. The word "foeticide" is also used. Why not use the word "abortion" as that is what it is? This is emotive language. That is all I will say. I am appalled that such an amendment has been put before the House. It is just dreadful and I ask my friend and colleague Senator Mullen - if he is still a friend after what I have said - to withdraw it.

I will not accept the amendments which propose making a range of detailed medical and personal information the subject of notifications to the Minister for Health. The Bill already provides for notifications of termination of pregnancy to be forwarded to the Minister to allow the application of the legislation to be monitored. However, the minimal amount of data will be collected to fulfil this function. This is to ensure data protection obligations under the general data protection regulation and the Data Protection Act 2018 will be met. It is simply not necessary or appropriate for the detailed medical information set out in the amendment to be notified directly to the Minister. While it might be useful for further data to be collected to allow, for example, trends in termination of pregnancy to be analysed, it would not be appropriate to include a provision in the Bill for it to be done. In line with its usual practice, the HSE will collect data for the procedure which could be published or made publicly available in a similar way to reports published on other aspects of the health system.

It would not be appropriate to make it an offence not to forward a notification of termination of pregnancy. To do so would be to implement a stricter regime than under the Protection of Life During Pregnancy Act 2013.

I have heard what the Minister of State has had to say and respectfully disagree with my friend Senator Norris on the issue. I have looked at the abortion notification form in the United Kingdom and read section 20 of the Bill. Subsection (2)(c), for instance, refers to the need for the county or place of residence of the pregnant woman to be recorded. Let us simplify the matter a little. From a public policy or economic standpoint, the HSE spends taxpayers' money. If termination of pregnancy procedures - I do not use the word "treatments", but it has been used on the pro-choice side - are to be carried out in public hospitals, as in the case of every other procedure, surely there should be financial accountability. We should know that there is financial oversight and transparency in the expenditure of taxpayers' money, just as we do when Beaumount Hospital or Letterkenny University Hospital, for instance, carries out hip procedures. We know how much those procedures cost because there are data to follow. I do not understand from where the requirement to record the county of residence of the pregnant woman comes because it does not follow any demarcation line associated with the HSE which is divided into regions and subdivided into hospitals. Therefore, it really does not make sense to me. I do not know from where the provision was plucked.

I have with me a copy of the notification form for England and Wales. The information - postcode, name and address - is sent from the facility to the chief medical officer as part of a data collation exercise. That is the way good public policy is made. Students of public policy learn at university how to make good public policy. One does so through the collation of intelligence that is factually correct. The Bill, as drafted, will not allow this to happen because the information collected will be so sparse as to render it almost useless. This is not about the infringement of anyone's rights but about collecting relevant and useable information. The proposed amendment follows what is provided for in the United Kingdom, but it does not even go as far as what is done there. In fact, in several respects it much less comprehensive than the English regulations. For example, it would not require provision of the woman's address, postcode or date of birth. It is also important to recall that section 20(5) of the Bill clearly ensures reports under the section will exclude information that could lead to the identification of individuals. Accordingly, as in England, the information would be published annually in a manner that would not breach confidentiality.

The amendment respects the principles of transparency and open government. It is plainly unacceptable to hide the facts of the operation of the Bill from the public because, ultimately, it will be a taxpayer-funded abortion system, a point we have not really discussed on Second Stage or Committee Stage. We will probably get to it on Report Stage. Section 20 provides for the publication of an annual report that will omit most of the information relevant to the operation of the Bill. Therefore, the information that will be collected under section 20 will be irrelevant and not specific. I presume this is being done intentionally. By contrast, the English regulations have a proven track record in consistently facilitating the publication annually of very detailed information, as is clear from the annual statistical publications. This information is important for sociological and research purposes and as a means of ensuring the formation of public policy in the future will be based on very reliable and accurate information. Both sides of the abortion debate should seek to have information that is accurate and reliable. One cannot make a charge against someone that the information he or she has is not reliable if one is not willing to support measures that would provide us with accurate and reliable information in the future. That is the purpose of the amendment.

The Minister might address the issue by regulations, if he so wishes. The information sought is simply too important to leave the matter to a Minister because, obviously, Ministers come and go. Moreover, from consideration of sections 3, 19 and 20 of the Bill, the Minister does not seem to have the power under the Bill to address the issue. This is because sections 19 and 20 do not enable the Minister to prescribe additional information to that stipulated in section 20 for inclusion in the notification to be sent to him. It is these notifications that will provide the basis for the report to be published under section 20. Even from the point of view of the collection of information, for the Minister for Health to know how the system is working and have accurate information, it is important for him to have this information. The public is also entitled to know how the law is operating and the associated trends in the carrying out of abortions in the aftermath of this massive change in Irish social policy. The State cannot credibly withhold this information from the public; it should be readily available to it. It is not good enough that it might be made available under regulations at some future date at a Minister's choosing.

The purpose of the amendment is really to improve the information gathering.

On the rationale for the introduction of abortion here, many on the pro-choice side were using the argument that an Irish woman had to leave these shores to obtain an abortion. That fact will mean that if an Irish woman wants to obtain an abortion in Manchester or London, she will have to provide all the information in question in the form prescribed in England, but if she wants to obtain an abortion in Ireland she will not have to do so. We will therefore be depending on the British system to provide us with more accurate information than we can collect here. It does not really make any sense. I just cannot understand it. That is the relevance of the amendment.

I will not delay other than to say that ignorance as a matter of Government policy is reprehensible. I cannot think of a single medical circumstance that is as important and far-reaching as abortion where it would not be considered good public policy to gather information. That is why I say a policy of deliberate ignorance as to what is going on is bad.

It has been done for 35 years.

If it is a policy of ideologically-motivated ignorance, on the basis that knowledge might produce facts that might cause us to have discussions about things we need to change, it is really bad. The fact is that Ireland is becoming an abortion regime. A big change is taking place. Even in our nearest neighbouring jurisdiction, where abortion is freely available, with nearly 200,000 abortions per year, it is considered appropriate to gather information on what is going on because there are certainly public health issues involved.

I am certainly not going to fall out with my friend Senator Norris but I ask him to consider carefully what we are proposing. We are proposing a mirroring of what is going on in Britain. Neither he nor anybody else in this House has, to my knowledge, criticised the data collection in Britain. The presumption must be that it is happening for a reason. I gave an example of why the ethnicity criterion was appropriate. The British perspective was that they wanted to ensure ethnic minorities had equal access to abortion.

Does the Senator think the British are not racist?

The Senator should stick to the amendment.

I am explaining the rationale for my amendment. I stress to colleagues, including Senator Norris, that what is sought is not intrusive on the person. Anonymised data are sought. They are data that would presumably have to be supplied to the certifying physician. The question is whether the certifying physician should be under a duty of law to pass the information on. There is such a disparity between the British requirement and what this legislation requires. It requires only four categories of information, with one at least seeming pretty pointless, namely, the county involved. I suggest to Senator Norris that if he agrees that even one of the categories listed in our amendment is potentially relevant, he will agree, in fairness to him, because he is a reasonable man, that I have made the case that this section needs to be amended.

I suggest the following category is worthy of consideration because it relates to an amendment that we talked about previously. We were assured when I tabled the amendment that if a baby is born alive as a result of an abortion procedure, it is not necessary to impose a duty to care for that baby. I am not at all reassured. It is even less likely that doctors will do the right thing if they do not even have to notify the State whether a live birth follows the termination of pregnancy and, if it does, the care given to the baby and the outcome. If the Government is serious about reassuring us that this will all come under medical best practice and there is absolutely no need to provide for the duty in law, it is a strange way to go about it. I refer to not requiring in law even the safeguard that practitioners would have to provide information on what they are doing and what they have done.

Let me refer to the amendments proposed on the need for pain relief. Questions on the date and the method and medical agents used to bring about termination of pregnancy are relevant. I did not know before I found out about British statistics gathering what words such as "gravidity" and "parity" meant. I apologise to Senator Norris if I have the wrong word. For the enlightenment of the House, I understand "gravidity" refers to the number of pregnancies and "parity" refers to pregnancies carried to a viable gestational age. I do not know why the British require details on marital status-----

-----but the point is that they do. They have 50 years' experience of abortion so there must be some reason related to policy. It is certainly not about restricting-----

It is not logic to state there must be a reason because it is there.

We will let Senator Mullen conclude his point.

Senator Norris would agree it is certainly not about restricting abortion given the trajectory of abortion legislation in Britain.

I am not managing to convince Senator Norris but the balance of credibility must at least lie with the HSE. Let us say, for example, that the data were to show an extraordinarily high number of abortions among very young adult women, including women in college. That might be linkable to issues of pressure in college or other issues that are very much talked about these days, such as consent. It is just possible that public policy considerations might flow from the data that could be gleaned. Ultimately, what I refer to was not dreamt up in Ballygobackwards; it is the British system of information gathering. It deserves better consideration than it has been given by the Government. I will certainly be pressing the amendment on something so important.

Amendment put:
The Committee divided: Tá, 4; Níl, 29.

  • Mullen, Rónán.
  • O'Mahony, John.
  • Ó Domhnaill, Brian.
  • Wilson, Diarmuid.

Níl

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Dolan, John.
  • Feighan, Frank.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Lawlor, Anthony.
  • Mac Lochlainn, Pádraig.
  • McDowell, Michael.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • Norris, David.
  • O'Sullivan, Grace.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Ruane, Lynn.
  • Warfield, Fintan.
Tellers: Tá, Senators Rónán Mullen and Brian Ó Domhnaill; Níl, Senators Gabrielle McFadden and Catherine Noone..
Amendment declared lost.
Progress reported; Committee to sit again.