Health (Regulation of Termination of Pregnancy) Bill 2018: Committee Stage
The select committee is in public session. This meeting has been convened to consider the Health (Regulation of Termination of Pregnancy) Bill 2018. The purpose of the Bill is to provide for and regulate termination of pregnancy. I welcome the Minister, Deputy Harris, and his officials to the meeting. As there is a larger number of amendments, I suggest we take frequent breaks regarding our consideration of the Bill. It is now 11 a.m. and I propose we take a break at 1.30 p.m. for lunch. This committee room is booked for the day, therefore, we have plenty of time.
There are a number of amendments and a number of groupings of amendments. The list of the groupings have been circulated to members and they can consider those groupings. Four amendments have been ruled out of order, namely, amendments Nos. 165, 167, 168 and 171.
Two amendments have been tabled to section 1. The first is in the names of Deputies Wallace, Clare Daly, Joan Collins and O'Reilly. It is proposed to discuss together amendments Nos. 1 to 3, inclusive, 41 and 176 to 180, inclusive, as they are related. Amendment No. 2 is a physical alternative to amendment No. 1. Amendments Nos. 177 to 180, inclusive, are physical alternatives to amendment No. 176. Amendments Nos. 178 to 180, inclusive, are physical alternatives to amendment No. 177 so amendments Nos. 1 to 3, inclusive, 41 and 176 to 180, inclusive, will be discussed together.
I move amendment No. 1:
In page 5, lines 19 and 20, to delete "Health (Regulation of Termination of Pregnancy) Act 2018" and substitute "Health (Access to Healthcare by Women Seeking Termination of Pregnancy) Act 2018".
We are of the view that the Long Title does not adequately reflect the overall purpose of the Bill. More importantly, it does not reflect the importance of the referendum vote that took place on 25 May. This should be about access because that is what people voted for on 25 May. As I said on Second Stage, the only reference to access in the Bill is in the offences section. I do not think people voted for access to be an offence. They voted for access because they want women to be in a position to avail of access. The amendment will not materially change a word that comes after it but it will show the intention of the legislation and its purpose, which is to ensure that women have access to terminations. I am interested to hear any arguments against it because, as is the case with all of my amendments - and I might as well say this at the outset - I believe it is very reasoned, fair, balanced and proportionate. On 25 May, people voted for access. They did not vote for access to be included only in the offences section.
Shall I speak to this amendment or on all of the amendments in the group?
The Minister can speak to this one first.
I thank Deputies O'Reilly, Joan Collins and others for tabling the amendment. I understand what they are trying to do. I also voted for access. We all voted for access to a service that is not currently available to women who have to travel as a result. I include in that regard the nine women who will travel and the three women who will access the abortion pill today. Those of us who voted to repeal the eighth amendment in such large numbers voted for access and I fully accept that. The Bill is entirely about access. It is about ensuring that, within the regulated parameters the Oireachtas put in place and published in a general scheme before the referendum was held, access to the relevant services can now be facilitated. That is the very reason we are trying to pass the Bill, which will enable women to have access to termination of pregnancy services in a safe manner in their own communities and free of charge as part of the universal Irish public health service. The key provisions of the Bill are the same as those of the draft general scheme that was published prior to the referendum and the updated scheme published in July.
The legislation provides for terminations to be carried out in cases where there is a risk of serious harm to the health of the pregnant woman or where there is a condition present that is likely to lead to the death of the foetus either before or within 28 days of birth, and without specific indication up to 12 weeks. The Title to the Bill has been drafted to reflect the language used in the Thirty-sixth Amendment of the Constitution Act 2018, which amended the Constitution in order that provision may be made in law for the regulation of termination of pregnancy. The Health (Regulation of Termination of Pregnancy) Bill we are debating is the means by which the Oireachtas will now use its new constitutional authority under the provision. Using the language of the new Article 40.3.3° in the legislation that seeks to give effect to the provision provides the necessary consistency and clarity in our law. Similarly, the Long Title has also been worded by the drafters to reflect the provisions and the purpose of the Bill. This is a technical legal Title. I accept that Deputy O'Reilly has said quite simply that she does not envisage it in any way changing the substance of the Bill. I very much accept that argument. I appreciate her intention in trying to change the wording but to do so would not be in line with the legal requirements and the advice I have received on the importance of keeping the Title to the Bill consistent with the wording in the Constitution.
I thank the Minister. We are discussing amendments Nos. 1 to 3, inclusive, 41 and 176 to 180, inclusive.
I support the amendment we have tabled. The substitute wording more reflects the outcome of the vote on 25 May. I ask the Minister to consider it and to go back to the drafters and seek further clarity. The amendment reflects what the majority of the people wanted and this should be taken on board. It is with regard to access to healthcare by women seeking termination of pregnancy. That is exactly what the people said they wanted.
To be helpful, I will respond in respect of the other amendments in the group. I will reflect on the point Deputy Joan Collins has made. My only concern relates to not wanting to put wording in the legislation which, from her perspective and mine, would be an accurate reflection of what the people voted for but which would not tally with or match that contained in the Constitution. I need to take very seriously the legal advice available to me. None of us wants to do anything that would accidentally undermine the legal certainty of the legislation.
Amendment No. 3 refers to inserting the word "abortion" into the Bill. We had quite a lengthy debate on this matter on Second Stage and people made the point that the Bill is about providing abortion in Ireland and asked why that word is not included in the Bill. The word "abortion" is not in the Constitution either. When the Oireachtas decided on the wording it wished to include in the Constitution, it decided - and then the people ultimately decided - to use the phrase "termination of pregnancy". The legal advice available to me is that we need to align the wording in our legislation with that contained in the Constitution. If we were to include the word "abortion", the time to do so was when we were amending the Constitution. Providing absolute clarity and consistency between the words in the Constitution and those in the legislation is the legal advice available to me that I feel is important to share with the committee. Obviously, the Bill will provide access to abortion services in Ireland that are not available today and that certainly would not have been available so long as the eighth amendment remained in the Constitution.
The wording and the definition have also been considered from a medical perspective and this is also important. These are not just legal arguments, although the legal arguments from my perspective are deemed to be strong. It is also about ensuring clarity for medical practitioners practising in the field. To define "termination of pregnancy" in any way other than as currently done in the Bill could have implications for obstetric practice. To be very clear, the purpose of the legislation is not to regulate obstetric practice. That is a much broader discussion. It is simply to make sure that we regulate the provision of the termination of pregnancy.
In the context of references to ending pregnancy, on not all occasions that an abortion takes place is a pregnancy being ended because, of course, there can be multiple births. We can have a situation where there are twins involved. For a number of reasons, this wording has been considered very carefully. The phrase "termination of pregnancy" matches the wording in the Constitution. We have engaged with medical practitioners in respect of the wording, which provides them with a degree of certainty that other formulations might not provide in terms of multiple births.
In order of indication, we will hear from Deputies O'Reilly, Bríd Smith, Durkan and Coppinger.
I fully appreciate the point the Minister is making regarding the inclusion of the word "abortion". It was not on the ballot paper and that is fine.
However, the use of language regarding termination of pregnancy in amendment No. 1 is continued, with the addition of the word "access". I am struggling to understand why access cannot be part of it. I accept the Minister's arguments - I do not necessarily like them - but it is about the inclusion of the word access. Based on everything the Minister said, I thought by the end he would agree with me because everything he has said indicates that this is about access. I honestly do not see why it cannot include it. I do not want to put words in the Minister's mouth, but if I hear what he says correctly, there is not an outright refusal on the inclusion of the word access. Is it possible for us to look at that or is it the case that he is saying flat out "no" to all of them? I just want to be clear for myself.
The legal advice available to me is that the safest wording in relation to this legislation is aligning the wording with that in the Constitution, which obviously also contains the word "regulation" and, without being terribly pedantic, the alternative wording does not. Once again, without wanting to be pedantic, but I suppose it is a pedantic area, the wording also refers to access to healthcare by women seeking termination which is a very important discussion but one which is much broader than what this Bill is trying to do. All that this Bill is trying to do, landmark that it is, is to regulate access to termination of pregnancy, it is not about the wider access to healthcare. The Deputy will find something that will happen a lot over today and tomorrow is that instinctively I will agree with what she wants to do - and I agree with the points Deputy Joan Collins made - but I must be very careful that I follow the legal advice available to me. I am happy to look at it further and engage with members further on it between now and Report Stage, and I am happy to share information with the committee as to how my officials have arrived at that conclusion. However, that is the solid advice available to me.
Can we see the legal advice given to the Minister on how this Title is framed? It is important that we see what the lawyers are advising the Minister on.
The word "abortion" being eliminated from the law is an obfuscation and a deliberate ignoring of what is going on here. We should call a spade a spade, and that is why we put it in as an amendment. I would be very interested to see the legal advice that states that cannot be mentioned, rather we talk about the termination of pregnancy and what the justification of that is.
The question of access to healthcare is fundamentally what this Bill is about and not saying so does not recognise access to abortion as part of the overall package of healthcare of a woman or pregnant person during her life as a potential mother. That needs to go in. Most important, I want to see the legal advice.
Does the Minister wish to respond?
Sorry, I was not sure if the Chairman wanted me to respond as people asked questions. I am more than happy to arrange for a briefing for all members of the committee between Committee Stage and Report Stage. I have many conversations with people in terms of advice but I am happy for the members to also have conversations with them.
I am certainly not hiding the reality of this Bill. This Bill will open up access to a range of abortion services in this country that our women need, deserve and have been denied for far too long under the eighth amendment. That is what this Bill will do. It means that the women who travel today, in many cases, will be able to access abortions in their own communities, from their own health service and as part of the universal health service, that is to say they will not have to pay for it. There is no hidden agenda there. However, when I have had conversations with some women, particularly on fatal foetal abnormalities, the sensitivity of language is important. Some of these pregnancies were terminated. Different people who have been through different experiences have a different perspective on the wording we use but there is no disputing at all what this Bill is endeavouring to do. However, the word "abortion" is not in the Constitution. We passed the wording "termination of pregnancy" and all I am trying to do is ensure that the law that we pass aligns with that wording because, God knows, there have been far too many grey areas in this whole area of law for far too long, which has resulted in an awful lot of pain, misery and court challenges.
It is important that we stick as closely as possible to what we told the people when the referendum was put before them and on which they voted. Deviation from that may lead us into a situation whereby we, the committee and the Oireachtas, may well be accused of not adhering to the lines set down by the people in the referendum. There are various pros and cons and merit and demerit to the amendments. What if it transpired that we now propose to deviate from what we told the people in the public heads of Bill? People had an opportunity to vote on this matter, they did so and came to a resounding decision. It is important that they did so on the basis of the information put before them. We should stick to the text as it is, as closely as possible, and should it transpire at a later stage that somebody said that it does not effect what we are trying to do, then we can examine it.
The word "regulation" is important. It was already part of the text of the referendum. If we change that now, in three or four days, we could find ourselves with a totally different Bill from the one to which people gave tentative approval in the referendum. I stand by what the referendum indicated and the published heads of Bill at that time.
Whatever about the use of the phrase "termination of pregnancy" versus the word "abortion", there are other problematic phrases in the Title. We will return to the issue of trans inclusivity later, but there is the question of putting pregnant woman rather than person in the Title of the Bill itself. The other problematic issue is the provision of offences in respect of the intentional ending of the life of a foetus, and this being the priority and focus of what an abortion is, and this dubious idea of ending life. I will not go on about it but I wanted to raise that it is problematic that it is framed as offences rather than relating to healthcare, which was what was highlighted in the referendum.
I do not agree with any of these amendments. If I have been told once, I have been told a million times since the referendum that the people have spoken, and so they have, however if we start by changing the Title of the Bill on which the people voted, the whole thing will go up in the air. It is important that we keep to what the people voted on as best we can, and this is what they voted on the Bill being called. Therefore I do not agree with the amendments.
Just to make a correction, the people did not vote on the Title of the Bill. They did not see that.
That is what it was called. It was published as that.
The people only voted on the referendum but they did so in the knowledge of what the general scheme would be; that would be an honest way to describe it.
Do any other members wish to contribute on this section? We are discussing amendments Nos. 1 to 3, inclusive, 41 and 176 to 180, inclusive. Is amendment No. 1 being pressed?
Given the conversation we have had, I am happy to not move it at this time but may do so later as we feel very strongly about the inclusion of the word "access". It is something that we can work on in the time between now and Report Stage.
Amendment, by leave, withdrawn.
We will now move on to amendment No. 2.
Am I allowed to move it, even though I am not a member of the committee?
Yes. Any Deputy can move an amendment.
Deputies who are not members of the committee cannot call for a vote.
They can call for a vote, but they cannot vote.
Deputies who are not committee members can call for a vote.
Yes, but they cannot vote.
I move amendment No. 2:
In page 5, line 19, to delete "Termination of Pregnancy" and substitute "Abortion".
May I speak to the amendment?
It was discussed with amendment No. 1.
We are on amendment No. 2.
I am sorry; I thought we had moved to the next grouping. We are not discussing amendment No. 4.
I thought we had finished with the first group of amendments.
Amendment, by leave, withdrawn.
Section 1 agreed to.
Amendment No. 3 not moved.
Amendments Nos. 4 to 12, inclusive, 22, 23, 33, 48, 61, 62, 80, 102 to 106, inclusive, 109, 110, 113 to 127, inclusive, 166 and 173 to 175, inclusive, are related and will be discussed together. Amendment No. 5 is a physical alternative to amendment No. 4. Amendments Nos. 8 to 10, inclusive, are physical alternatives to amendment No. 7. Amendments Nos. 9 and 10 are physical alternatives to amendment No. 8. Amendment No. 10 is a physical alternative to amendment No. 9. Amendment No. 23 is consequential on amendment No. 22. Amendment No. 105 is consequential on amendment No. 104. Amendments Nos. 114 and 115 are consequential on amendment No. 113. Amendments Nos. 117 and 118 are consequential on amendment No. 116. Amendments Nos. 120 to 124, inclusive, are consequential on amendment No. 119. Amendment No. 126 is consequential on amendment No. 125.
This grouping of amendments makes no sense. There are amendments that propose inserting the words "other such healthcare practitioners as may be defined" after "register". I have tabled an amendment to section 25 about making pregnancy services free. It is included in this group of amendments which is off the wall. What do we do about this? We cannot discuss all of these amendments together as several of them have nothing whatsoever to do with each other. Procedurally, what do we do?
The Bills Office is the body that decided that the amendments were related to one another.
I have to be guided by the Bills Office.
This grouping of amendments is off the wall. Sections 2 and 25 have been put together. Technical amendments have also been put together with big amendments about making pregnancy services free. Is there a way to suspend the sitting to go into private session to discuss the matter? This grouping of amendments just does not make any sense.
There is a danger that when we come to vote on the amendments and we are told that they have already been discussed, it will be stated they were not discussed because the grouping is quite broad.
I second what Deputy Donnelly has said about going into private session to pick out the amendments that are related. Many of them can be grouped together, but there are a few that cannot. We are in the hands of the Chairman, but it might be the sensible thing to do. Otherwise this will be a very wide-ranging discussion.
It is something that struck me also. I contacted the Bills Office which confirmed that they were related-----
-----but we can certainly go into private session to have the matter reviewed. Is that agreed?
I want to raise an issue because I have tabled some of the amendments in this grouping. I am trying to read all of them quickly and they seem to deal with two different specific issues. They are related to trans inclusivity and the language surrounding it or the definition of a medical practitioner. I am desperately trying to read all of them to see whether there is something else included. It is strange to group them together because they are very different. Many of them repeat the same thing and propose to change the same words.
The grouping was decided by the Bills Office, but I have no difficulty with discussing the amendments in whatever way the committee wants. My note on the grouping sees it, as Deputy Coppinger does, as the amendments having three themes. The definition of a medical practitioner is dealt with in amendments Nos. 4 and 5. The bulk of the amendments in the grouping deal with the definition of a woman and, as Deputy Coppinger rightly said, largely have the same policy objective of including the words "and pregnant person" with the word "woman". Another four of the amendments are related to the definition of "termination of pregnancy". Even though it looks like the group includes a huge number of amendments, the overwhelming majority are related to the issue of trans inclusivity.
We could probably break them into three groups, but discussing them together will lead to serious confusion.
We will go into private session to divide them into more workable groups.
If I may stay, I will share my themes with the committee.
The select committee went into private session at 11.40 a.m. and resumed in public session at 12.15 p.m.
I move amendment No. 4:
In page 6, line 5, after “register” to insert “and such other healthcare practitioners as may be defined by the Minister from time to time”.
I will not speak for other Deputies, but my reason for tabling the amendment is to make provision to allow a future Minister for Health to expand the cohort of healthcare practitioners who may provide abortion care without the need for legislative change. The World Health Organization tells us that abortion care in early pregnancy can be provided at primary care level by a range of health workers, including nurses and midwives. I believe that as the service gets up and running, it will be expanded. A great nurse prescribing programme is in place and many nurses and midwives have contacted me to say they are very interested in ensuring they can be part of service delivery. If we are discussing primary care, we should be mindful of what the World Health Organization states on the matter.
I do not propose to accept the amendments at this stage, although I understand from where the Deputy is coming. The amendments are aimed at permitting medical personnel beyond doctors to be involved in a termination of pregnancy, as Deputy O'Reilly outlined. While I appreciate that the intention of the amendments may be to facilitate access to the procedure for women or ensure greater availability of healthcare professionals to provide the service, I cannot agree to their inclusion in the Bill at this time. However, we will come to an amendment in my name - there are others that have been tabled by colleagues - that refers to a review of the legislation.
The Rural Independents do not have one.
We are all in this together. I hope that by the time we pass the legislation, it will include a review clause. Including such a clause is prudent. We will have different views on the timeline for a review, but we are starting a service that has not been provided in this country before. We all know the legacy. From a patient safety perspective, it is essential that in establishing a new or expanded service we provide for the highest possible standard of care from its initiation.
There is very limited access to termination of pregnancy in this country, which overwhelmingly is delivered in the hospital setting by a consultant obstetrician, a highly experienced, qualified medical person. The Health (Regulation of Termination of Pregnancy) Bill does restrict the provision of the service to medical practitioners but on much expanded grounds. It also expands the definition of medical practitioners who may be involved to all those registered on the Medical Council's register of medical practitioners. Therefore, in the legislation we are expanding the range of doctors who may be involved.
From an international perspective, it is not an unusual requirement. In Europe, France, Belgium, Sweden, Switzerland and Germany require a doctor to be involved in carrying out the procedure, but the Deputy is correct, there are other countries where that is not the case. I do not disagree with her fundamental point that there are other countries where other healthcare professionals are involved. However, at this stage of the legislation and in trying to embed a service and ensure we will have adequate numbers of doctors signed up to get it up and running, medical practitioners are the most appropriate personnel to deliver the service. Whereas in the future it may be possible to contemplate allowing termination of pregnancy services to be delivered by medical personnel other than medical practitioners, it is my considered view at this time that we are taking initial and significant steps towards expanding services and that the most appropriate personnel to deliver the service are medical practitioners. Where the Deputy and I differ is that the Deputy would like to give the Minister of the day the power to do this without recourse to the Oireachtas. I propose that the Minister of the day have the power, through the review clause which I hope will be passed by the committee later today. Therefore, I am not in a position to accept the amendments on this occasion.
The following members have indicated that they wish to speak: Deputies Fitzpatrick, Tóibín, Joan Collins and Coppinger.
I appreciate the Minister saying the highest standard of health service is required. However, potentially allowing a future Minister to permit literally anyone in the health service to carry out an abortion is not fair. Women deserve the best medical care and the best people should provide the service. There was a reference made to me not caring for women, but if we were to go ahead with this and allow anyone in the health service to do it, it would be a great mistake.
There are different views on what the people actually voted on in the referendum. They were faced with a binary question. The Minister is correct when he clarifies that the people voted on the deletion of the eighth amendment. That is also the view of Ms Justice Isobel Kennedy and the Referendum Commission.
A doctor-led service was central to the advocation of repeal by the Minister and others. A Google search would reveal a couple of hundred examples of it having been repeatedly stated that this would be a doctor-led service. Last night, I spoke to a midwife about this issue. She stated that there has been no consultation with midwives regarding the provision of abortion in Ireland. If we were to go down that route, it would be logical and good governance and legislative practice that people would be consulted before being tasked with a role. Indeed, the lack of consultation with doctors is also a difficulty. Approximately 650 doctors have stated that they wanted to have proper consultation on this issue before the legislation proceeded. On that basis, it would be better not to widen the range of medical professionals who can provide this particular service. Issues regarding patient safety and medical insurance have also been flagged.
The Bill defines a medical practitioner as one who is on the register of the Irish Medical Council. I agree with Deputy O'Reilly that the amendment aims to provide for the the health service to decide when and where we expand the services such that women have access to them, rather than waiting for future legislation to so do. It is not saying that we will do it tomorrow, next week, in two months' time or in a year's time but it allows for a future model whereby nurses and midwives could undertake specialist training and develop an equal competence with doctors to take responsibility for aspects of abortion care in non-complex cases. The WHO recommends broader access to the provision of abortion services. This is an important amendment. The Minister stated that there would be a review. Would the Minister be happy for this aspect to dealt with in that review?
Amendment No. 5 is almost identical to this amendment and should probably be discussed now rather than going through the process again.
Amendments Nos. 4 and 5 are being discussed together.
Okay. We have not moved amendment No. 5.
We are on amendment No. 4 but we are also discussing amendment No. 5.
These amendments relate to the broadening of the definition of a medical practitioner who may participate in the provision of abortion services. We are calling for it to be expanded to other professionals within the health system. Such a practice is not unusual. The point is that we are innovating and bringing in legislation that should be state-of-the-art and up to date. For example, in France and other countries, midwives participate in abortions. Scientific research has proven that one does not need a doctor in order to have an abortion. Some ten people a day leave the country to procure an abortion but up to five others use abortion pills obtained through telemedicine sites. We have heard testimony in that regard and I will not repeat the points that were made. It is important because we need to emphasise that abortion is one of the simplest medical procedures. Those who oppose it make out that that is not the case. However, as members are aware, the majority of abortions take place in the first trimester. Research has proven that abortions carried out using an abortion pill obtained through a telemedicine site and supervised by a doctor are as safe as other types of abortion even though the woman is not directly examined by a doctor. The WHO has given its backing to that view. That is important because we are bringing in legislation which is introducing levels of barriers and bureaucracy that may not be needed. Some members who have spoken to the amendment are opposed to this aspect being broadened because they want to make out that abortion is harrowing and very complex. However, all those who study these matters know that having an abortion is safer than having a baby. It would be preferable for the Bill to be in line with what has been scientifically proven, which is that a competent midwife or other health practitioner should be permitted to perform abortions. The five people in Ireland who will take an abortion pill in their bedrooms today will be carrying out a DIY abortion with advice from a doctor based in the Netherlands or another part of the world. We do not need to over-complicate this. Of course, we agree that the procedure should be carried out under the auspices of our health service. Everybody should be able to go to their own doctor but that does not mean that a doctor must be present for the abortion. I have often gone to a doctor's surgery and been seen by a nurse. We should recognise that that is best practice worldwide.
Midwives for Choice and the Midwives Association of Ireland have made very comprehensive submissions on the matter which members may benefit from reading thoroughly. It was suggested that enabling nurses and midwives to do what many of them are trained to do, which is to prescribe, would somehow be dangerous. I do not agree. Although I do not want to put words in his mouth, I assume that even if he rejects the amendment the Minister would not agree with that either. Nurses and midwives very safely and competently deliver healthcare in a range of settings. Our amendment does not seek to expand the provision of the service to nurses and midwives by tomorrow morning. We are trying to make available the option for that to be done because they are a group of front-line healthcare professionals who feel that they have been left out of this debate to some extent. It is about expanding the service once it is bedded in and ensuring that anyone who can competently provide a service that women need is empowered to provide that service. It would not necessarily happen overnight but I am conscious that such practitioners are being precluded from providing such services. The amendment aims to make that option available. As I stated, Midwives for Choice and the Midwives Association of Ireland have made very comprehensive submissions which, along with the WHO documentation, could inform the discussion and deliberations between now and Report Stage. We do not argue that it should not be a GP-led service initially, but are trying to ensure there are no barriers to nurse prescribers providing the service once it is rolled out and more embedded.
I thank Deputy O'Reilly. For clarity, we are on amendment No. 4. Amendments Nos. 4 and 5 are related and are being discussed together. Amendment No. 5 is a physical alternative to No. 4. I call Deputy O'Connell.
I understand from where the Minister is coming. Although I would be very supportive in the future of prescribing midwives and clinical pharmacists being involved in the provision of service, Deputy Tóibín is correct that the Joint Oireachtas Committee on the Eighth Amendment envisaged the provision of services being GP-led. However, if a review can be agreed upon, that provision of services by other healthcare practitioners could be considered at that stage. We are trying to provide access for women to termination of pregnancy services in the safest way possible. In order to embed the service initially and deliver it in a safe way, it would be preferable to deal with one group of medical professionals who are governed by the Irish Medical Council. Work on the guidelines is ongoing in partnership with the professional medical colleges. It would over-complicate the matter to involve other healthcare professionals in the provision of services at this time but that could be reconsidered in a review.
Deputy O'Connell has encapsulated my views on the issue as well as her own. In bringing forward the legislation, I am very conscious that we are doing exactly what we said we would do. Deputy Tóibín is correct that from a legal point of view people voted to repeal the eighth amendment and insert the new wording in the Constitution. I have heard him say it many times. However, the people did so in the knowledge that if they voted "Yes" and the amendment was passed, the Government would bring forward the legislation outlined in the general scheme I published in March and updated in July. That resulted in the Bill I published in September.
I have tried at each stage not to deviate in any fundamental way from the heads of the Bill. It was to be - and, God almighty, we must have all said it countless times - a doctor-led service and it was to be about women and their doctors. I am purposely seeking a review clause in the legislation as a result of looking at other jurisdictions where legislators thought all they needed to do was pass a Bill and that they had dealt with the issue forever. For us to do that would be a dereliction of our duty. It is appropriate that we return to the issue and make sure the legislation continues to be in line with best international practice. That is what a review clause will accomplish.
I appreciate Deputy Coppinger's point about the safety of an abortion and about not needing a doctor. We see value in moving from a point where a woman, in the privacy of her home in a lonely situation, is ordering a pill online and taking it to one where a woman, like any citizen in this country, has the benefit of engagement with her doctor and can have all the information and facts presented to her and all of her care needs met.
On this occasion I am not in a position to accept the amendments. I am happy to further engage between now and Report Stage.
I oppose the amendments for many reasons. At this stage, after some considerable time, we have come through debate which was long and difficult for many people throughout the country, including health professionals. We discussed this issue in the run up to the referendum wherein we referred to a GP-led service. The reason for that was to ensure the highest level of medical expertise was made available at the earliest stage to a woman who might be in a crisis pregnancy or who had concerns about the pregnancy in whatever shape or form. We should remain true to that. We should not run off in different directions at this stage, improving what we said at the time. We did not say it so we cannot afford to uphold it. It would be a retrograde step to do it at this stage. We should stand by what we said when we spoke about it prior to the referendum. We told people what we were going to do and we did it in good faith. While there might be various reasons put forward at a later stage about how it can be improved, they are for a later stage and not for now. We have reached a position where we are introducing regulations in respect of at-home terminations where there were no regulations whatsoever previously. We should stick to our guns and remain as we said we were going to do. I disagree with the amendments.
I will not labour the point. Abortion is a serious issue. From my perspective, there are two individuals involved. In most countries that provide for abortions, women die from legal abortions. It needs to be put on the record. Patient safety is important. If people want to change it, it will be possible to change it in the Dáil in future years. Before we do that, we should consult all the people in the health sector to understand their perspectives on it rather than legislating for it now.
I will speak to amendment No. 5 because the sentiment is not about trying to cod the public about what it voted for in May in the referendum to repeal the eighth amendment. A GP-led service is a service where one rings up and makes an appointment at one's GP clinic. As we move towards Sláintecare, and hopefully we will, it will mostly be in primary care centres located in communities. It could also be in an Irish Family Planning Association, IFPA, clinic or a Well Woman Centre. The GP is the person with whom one makes the appointment but one might need a cervical smear, injection, flu jab or some kind of diabetes check-up and one will often see the nurse. The practitioner runs the clinic and the nurse may deliver the service. The GP still leads the clinical service but another practitioner carries out the administration of the service one has attended for. We all get smears taken by nurses by and large and not by doctors but it is done in a doctor's clinic. I understand, and I think the public understood, that a GP-led service will not necessarily mean one must see the GP. I would have thought the Minister and the Department would welcome the broadening of that definition given the crisis in GP services. There is a drastic shortage of GPs. We also have nurses in clinics who can do this work. Midwives work in Well Woman Centres and for the IFPA. It is sensible to extend the definition now and not later so women can have access to abortion. Otherwise we will narrow access because we cannot get ready access to GPs for normal things like the need for antibiotics.
I will comment on what Deputy Durkan said because I fully agree that when one talks about a GP-led service, one rings one's doctor and one goes to the surgery. When one is pregnant, which is obviously much more serious, one often sees a nurse. I hardly ever saw a doctor. Perhaps people do not understand that is how GP-led services work. People should not make out that there will be a big change from the current regime. In 1967 when the Abortion Act was being drafted in Britain, a provision relating to two doctors was inserted. That is not necessary now because things have moved on so much. With the abortion pill we knew it would be much more simple. I will refer to the phrase "surgical abortion". It is not surgery; it is just a vacuum. The reason I mention it is other abortions such as late term abortions are much more complicated for health reasons and for other reasons but they are a minority. We are introducing a new law.
I will make one comment about the nature of the referendum debate. It is bad form if people used arguments in the referendum debate that were not necessary and if they over complicated the issues. That might have happened. It was made clear in the committee, and we knew from testimony, that the abortion pill could be administered by a lot more than a doctor. This is not a breach of faith in the context of what people voted on.
I also oppose amendment No. 4. It reduces the level and standard of care that people expected when they voted to repeal the eighth amendment and put it in our hands to decide. I believe we should make haste slowly. GPs were mentioned. The 1967 Act in the UK provided for two GPs. We have to tread carefully and ensure it does not widen the scope. A significant number of GPs have difficulty with the issue as have many midwives and people who contacted me. We need to make haste slowly.
I also oppose these amendments. With a GP-led service, the GP would be in charge. Even if one is sent to the nurse, the GP would know what is going on. I disagree with Deputy Coppinger. Abortion is a big thing and can go very wrong, like anything else. It needs to be supervised by a GP because the people voted for a GP-led service.
We are not as far apart on this as some members think. Nurses and midwives will have a role in caring for women in our health service accessing these services, as they do today. There is no question in that regard. The 24-7 helpline, which I imagine will be the first point of call for many women in crisis, will be operated by nurses and midwives. I do not wish my comments to be misrepresented but nurses and midwives will have a role to play. Nurses and midwives just like doctors will have a right to conscientiously object which in and of itself is a recognition that they have a role to play in the care of the woman. The question comes back to the carrying out of the procedure. It is right and proper that my Department should keep these matters under review. It is right and proper that we do not do what was done in the UK, which is just pass legislation and leave it sitting on the Statute Book for years when other countries have more modern systems. We should review this legislation in a period of years.
We should embed what we said we would do and monitor closely how it works. A large amount of work is being done by the medical colleges, the Irish College of General Practitioners, ICGP, and the Institute of Obstetricians and Gynaecologists in drawing up the model of care and care pathways. They are doing excellent work, and it is appropriate that they are doing that work and we are not.
This clear pathway needs to be agreed and embedded. I believe this to be the appropriate way to go, but I am happy to keep this issue under review. I recognise Deputy O'Reilly's points about nurse prescribers. In line with what I believe was the spirit of the all-party committee's report and what we said during the referendum, the most straightforward and logical thing to do is to have a doctor-led service where the doctor has to carry out the procedure. The nurse and midwife will have a role, which they perform excellently on a daily basis elsewhere in our health service in terms of the care and well-being of the woman.
It would not be a good idea to accept these amendments. Taking Deputy O'Reilly's suggestion, I will review the submissions received from those two excellent organisations, which played a large role in advocating for change and looking after women's interests.
Is Deputy O'Reilly pressing the amendment?
Based on the Minister's comments and in light of the fact that he will consider the submissions from Midwives for Choice and the Midwives Association of Ireland, I will withdraw the amendment while reserving the right to re-table it. To be clear, the intention was to future-proof the legislation by having the capacity to expand the service after day one. The gulf between us is not massive and we might be able to bridge it between now and Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 6, line 5, after “register” to insert “and also a competently trained healthcare practitioner”.
Is the Deputy pressing the amendment?
No. I will withdraw it to reintroduce it at a later stage.
Amendment, by leave, withdrawn.
Amendment No. 6 is in the name of Deputy Catherine Murphy, but she is not present. Would-----
Are these not all being taken together?
Amendments Nos. 6, 22, 23, 33, 48, 61, 62, 80, 102 to 106, inclusive, 109, 110, 113 to 127, inclusive, 166 and 173 to 175, inclusive, are related. Amendment No. 23 is consequential on amendment No. 22. Amendment No. 105 is consequential on amendment No. 104. Amendments Nos. 114 and 115 are consequential on amendment No. 113. Amendments Nos. 117 and 118 are consequential on amendment No. 116. Amendments Nos. 120 to 124, inclusive, are consequential on amendment No. 119. Amendment No. 126 is consequential on amendment No. 125. Therefore, amendments Nos. 6, 22, 23, 33, 48, 61, 62, 80, 102 to 106, inclusive, 109, 110, 113 to 127, inclusive, 166 and 173 to 175, inclusive, will be discussed together.
Amendment No. 11 could be done first.
Will a member of the committee move amendment No. 6 in the name of Deputy Catherine Murphy?
Other amendments say the same thing.
They are in the names of members who are present.
Can we not let amendment No. 6 fall and move on? Would that not be the quickest option?
We are discussing a large number of amendments in this grouping.
Amendments Nos. 11 and 12 are on the same matter.
They would achieve the same thing.
Could we move on to amendment No. 11?
Let amendment No. 6 fall and move to amendment No. 7.
But amendment No. 7 is separate.
Amendment No. 6 not moved.
Amendments Nos. 7 to 10, inclusive, are related. Amendments Nos. 8 to 10, inclusive, are physical alternatives to amendment No. 7. Amendments Nos. 9 and 10 are physical alternatives to amendment No. 8. Amendment No. 10 is a physical alternative to amendment No. 9. Amendments Nos. 7 to 10, inclusive, will be discussed together.
I move amendment No. 7:
In page 6, lines 12 and 13, to delete “, in relation to a pregnant woman, means a medical procedure which is intended to end the life of a foetus” and substitute “means induced abortion to end a pregnancy using a medical or surgical procedure”.
When I spoke on Second Stage, I was clear about my opposition to the use of the language of the eighth amendment. I was disappointed to see some of that language replicated in this legislation. We will all give our own version of what the people of Ireland said on 25 May, but no one would dispute that they said they did not want the eighth amendment.
My amendment's purpose is to ensure that a more appropriate and less stigmatising definition of "termination of pregnancy", one that uses neutral language, is used in the Bill. The definition proposed in the legislation reintroduces the language of the eighth amendment. No matter one's view or what side one was on, the people made how they felt about the eighth amendment clear, in that they wanted it gone. It is now gone, so I do not see why we should be replicating its language in this legislation.
I thank the Deputy and colleagues for these amendments. As I outlined when discussing the first grouping, Deputies have proposed changing the definition of "termination of pregnancy" contained in the Bill to include the use of the term "abortion" or to refer instead to the ending of pregnancy using a medical or surgical procedure.
On the language used in the Bill, the 36th amendment of the Constitution inserted a new Article 40.3.3°, which reads: "Provision may be made by law for the regulation of termination of pregnancy." This Bill is the means by which the Oireachtas exercises its new constitutional authority. In this way, the Oireachtas is carrying out the will of the people as expressed in the result of the referendum. Using the language of the new article in the legislation seeks to give effect to the provisions and provides clarity and consistency in our law. By referring to "termination of pregnancy" rather than "abortion", the Bill seeks to maintain that consistency and avoid any potential doubt or unintended legal consequence that could flow from departing from that language.
This is not just a legal argument, although my legal concerns about changing the language are real and genuine. The wording of the definition has also been considered from a medical perspective with a view to ensuring clarity for medical practitioners practising in this field. I will reference a letter signed by many doctors that I know was sent to the committee last night. It makes a number of constructive suggestions about how to improve the legislation. I am sure that we will get to those. In section 2, it specifically states that the proposal in the published amendments to change the definition of "termination of pregnancy" from ending the life of the foetus to ending the pregnancy further reduces the clarity on the medical and surgical procedures that will be able to be legally practised by specialists. While I understand the good intention of the amendment, it is the view of the legal experts advising me and the view of the medical experts advising all of us that "end a pregnancy" does not provide the clarity for which our doctors are asking. In my conversations with medical practitioners, I have not been asked to change this definition because they believe it provides them with clarity.
I detested the language of the eighth amendment as well. That is why I was delighted to join with Deputy O'Reilly and others in asking the people of Ireland to remove the eighth amendment. Its language was the language of the unborn. It was not about rights, as the foetus has rights. Rather, it was about the rights of the unborn equalling the rights of the woman. The word "unborn" is different to the word "foetus" and "foetus" is a medical term.
The people of Ireland voted. The Deputy is right, in that we will all endeavour to interpret and put our slants on how they voted, but we know that they voted to repeal the eighth amendment. However, we also know that they voted to regulate the area. As the Supreme Court suggested there would be, there are still protections for the life of the foetus. The Bill is the only legislation in which reference to that life is made at all.
We all need to remember that outside of the circumstances regulated for in this Bill, the destruction of the life of the foetus will still be illegal, and in my view should be. There are broad parameters for women in crisis pregnancies under the four headings. Reference to the life of the foetus is appropriate from a medical and legal point of view in respect of the balancing of rights. It is different from the language of the eighth amendment, which provided for an equal right to life of the unborn. While Deputies are doing this for a good reason and we are all eager to get this right and to make sure that we move away from the language of stigma that has dominated discussions in this area for 35 years, we have to take seriously both the medical and legal advice on amending this definition.
I oppose amendment No. 7. The reference, "to end the life of a foetus" is probably one of the most important in the legislation and it is the reason it is contentious for many people. It is a sobering reference for sure. It is also scientifically true because we are talking about two individual living human beings, according to science. It is dangerous to move away from science when it comes to the definitions used in these Bills, which will make it more complex, difficult and have unforeseen consequences down the road. I oppose the deletion of that reference.
I agree with the spirit of the amendment. It is unfortunate language to insert and we are pulling the language of the eighth amendment into the legislation. However, the Minister has laid out the legal and medical advice. If the constitutional lawyers, drafters and medics are telling us that this is what is needed to make the legislation legally and medically robust, and critically provide much needed clarity to the doctors, then so be it. I, therefore, do not support amending the provision for those reasons. It is a pity that other language that could have been equally robust legally, and provided as much clarity, could not have been found. Unfortunately, it does still sound like we are pulling some of the language into the legislation. The Minister has laid out a reasonable medical and legal argument for why we, unfortunately, need to keep it as it is. This exact language was in the heads of the Bill. Of course we will all have different views as to what the people of Ireland voted for. There is no different view as to what the heads of the Bill were because they are black and white and this language is in the heads of the Bill as well.
I remind members that we are discussing amendments Nos. 7 to 10, inclusive.
My amendment No. 9 is very much related to amendment No. 7. I take on board what the Minister said about the legal advice. I am concerned about the language here. We have spoken a number of times this morning about respecting the will expressed by the people in May. In keeping with that sense, we must constantly focus on who is the person at the centre of all of this, which is the woman. The people voted for the woman to be placed at the centre and she is the person who is capable of carrying a pregnancy. When a woman is pregnant she is not carrying a life, as such, but carrying a pregnancy. Everywhere the legislation states "to end the life of a foetus", I have proposed that we change the words to "end a pregnancy" because the language is too foetus-centric or focused on the foetus rather than the woman or person carrying the pregnancy. A woman may have a pregnancy and wish to end it. She does not have a life that she wishes to end.
I agree with Deputy Donnelly's reference to the carrying over of language from the past into this legislation. I am most concerned about that, notwithstanding the medical and legal advice that the Minister has received. We can go around the houses forever, and we have done previously, defining when life begins and never agree. I imagine that we would all agree when pregnancy begins. Everyone can have different feelings about when life begins but we cannot have legislation based on feelings. I accept what the Minister has said but I am uncomfortable with the language. We should be able to reserve the right to have meetings with officials in the Department, law experts and medical people and consider the matter when we debate Report Stage in the Dáil. If this matter cannot be changed then, so be it. There is a general feeling, having listened to people here who spoke in favour of these amendments, that the language is negative and is not woman-centred.
I accept the decision of the people to allow abortion in Ireland. I fully respect the decision of the voters who voted in the abortion referendum last May. It was a very hard fought campaign for all involved. The electorate decided to vote for change and it is now up to the Oireachtas to deal with same. Over the next number of days I will listen to some amendments.
I oppose amendment No. 7 because it is an attempt to water down the definition for a termination by removing the phrase "a medical procedure which is intended to end the life of a foetus".
Was other language considered? Was an effort made to avoid replicating this language? If so, are there other alternatives? If not, can something be done between now and Report Stage?
Deputy Donnelly has asked great questions. The short answer is "Yes". Every formula of words has been examined in consultation with the Attorney General, my own officials and legal advisers in my Department. The reason that I am satisfied with this language is the medical community is largely satisfied with it. In a letter to all of us, which was sent to me this morning and, I think, sent to the committee last night, 24 maternal foetal medicine specialists, convened at the behest of the Institute of Obstetricians and Gynaecologists and the Royal College of Physicians in Ireland, which very much welcomed the introduction of this Bill, have come to us with a number of amendments. They are critical of something in the legislation so there will be arguments on this that I will have to address later. They asked us in their letter not to amend the definition from ending the life of the foetus to ending the pregnancy. Long after we have passed this legislation, there will be obstetricians and gynaecologists in maternity hospitals. They have been asking all of us - and they ask the people - to let them get on with their job and have clarity. They are asking us not to change the wording because, in their words, "it further reduces clarity on the medical and surgical procedures". This is not necessarily about my opinion or my view of the world. Some of them, whom I know all of us hold in the highest regard, have asked us not to do this because they are worried that it will lessen the clarity. As a committee, we have to reflect on that. I am more than happy, as are my officials, to engage with members on this between now and Report Stage but I take seriously what they say. I also take seriously the legal advice on changing it.
Everybody has worked hard, as did the cross-party committee and the Citizens' Assembly, on how this should be addressed, how to achieve the right wording, how to make sure it is legally watertight, and how to make sure it works. I am just worried about reopening the debate on the definition when this has appeared in general schemes and been debated at length but I get what members are trying to do.
I would also make the practical point about ending a pregnancy. There will be women, particularly in the space of fatal foetal abnormalities, who will have twins and they will not end their pregnancy. The advice available to me is that there are multiple births. It is not always the case that a woman who accesses an abortion is ending her pregnancy or that a woman who has a termination is ending her pregnancy. It may be that one of the foetuses is unviable or both. This is a complicated area, which is why I am reluctant to deviate, but I am more than happy to engage with members between now and Report Stage, and to make officials available to engage with them as well.
I fully respect the legal advice and the Minister's expressions on same.
Notwithstanding that legal advice and having been a member of the Joint Committee on the Eighth Amendment of the Constitution, which engaged in a long debate, and listened to the very impassioned positions held by people, I suggest that Deputy O'Connell's amendment No. 9 is much more accommodating of the sensitivities surrounding the debate on the procedures, whatever they may be.
I acknowledge what the Minister said about the legal advice. I note the position in regard to twins. The definition of abortion laid out by the Citizens' Assembly is that the intention is to deliberately enter a procedure which will terminate the life of the foetus or the unborn or whatever the case may be. However, the support for that harsh language was not evident at the time we discussed those things during the course of the hearings of the Joint Committee on the Eighth Amendment of the Constitution. That is why we need to be a little bit sensitive to the issues that affect women. During the course of the committee hearings we came across several cases of women who were unsure, uncertain, isolated, alone and fearful of what the implications were. In some cases, it may be a greater assurance to women in those circumstances to have less terminal language, no pun intended. By stating what is legally acceptable and legally advised, it may well be that a woman or a girl in certain circumstances may not feel she has the entitlement, the support or is happy and free to proceed in the way she wants to. Let us remember also that we spent a great deal of time during the committee hearings on the topic of counselling and the need to be supportive and helpful to the girl or woman who finds herself in a position where she feels she has to seek a termination. Notwithstanding all the other points made, these points should be borne in mind.
Having listened to the Minister's remarks, I am still not clear how any of these amendments would limit doctors or medics. I do not think he has explained why the doctors and medics say that. There was a contradiction in something the Minister said on twins. The life of a foetus is the exact same as a pregnancy.
It is. I would have thought the word "pregnancy" was more apt to describe the situation.
The word "foetus" is singular.
There is a difference legally. One is still pregnant when one is carrying twins.
There is a problem with the word "foetus" because sometimes one is talking about an embryo and sometimes about a zygote. It is not the best definition in the world. I would have thought that "pregnancy" would be more all-encompassing.
There has been a suggestion by a couple of people who are against abortion that we are somewhat trying to sanitise the procedure by taking the word "foetus" out. I am thrilled the word "foetus" is being used by these people because all we heard during the debate was the "child". We were trying to get a more scientific definition that there are stages in a pregnancy, sometimes it is a foetus, sometimes it is an embryo, sometimes it is a zygote and sometimes it is a child. It is nothing to do with sanitising the process but trying to find the best definition and I think that is what people are genuinely doing.
The purpose of amendment No. 7 is to get rid of language. I am not speaking for other people but, to varying degrees, a view has been expressed by the members that the language is not satisfactory. Is there a sense that the Minister is amenable to further discussions and potentially revisiting that language? The Minister can hear from the points made the difficulty we have with the language. Nobody wants to see the language of stigma and so on replicated but there is a view here that language is problematic. I am loth to withdraw amendment No. 7 unless I get some comfort that the language used will be revisited. The language used is not inclusive. I read the same correspondence the Minister read, but there is also correspondence that will counter that. We have to read all the correspondence and come to our own view. I have formed the view that the language as written is not satisfactory and not in keeping with the way to make the legislation more progressive and less stigmatising.
Will the Minister confirm that he is amenable to revisiting that language - this does not necessarily mean we will get agreement - between now and Report Stage?
I agree with Deputy O'Reilly's comments. To my mind there is an issue with amendment No. 7 in that the word "abortion" is in it and we heard this morning that there is a constitutional issue there. I would like to be able to support the amendment if a vote was called but obviously my preference is for amendment No. 9, which I tabled. I think we could park all four amendments, Nos. 7 to 10, inclusive, if we could get an agreement that we could revisit the language. It is universally accepted by those proposing this group of amendments that the language is not appropriate. I have spoken to the Minister about this but I am exceptionally uncomfortable with termination of pregnancy being defined as the ending of the life of a foetus. It is a departure from the essence of the evidence produced by the Joint Committee on the Eighth Amendment of the Constitution.
I have not read the correspondence from the 24 doctors to which the Minister referred. I would like to see it from all angles. We are all focused on getting the best possible definition that does not leave women stigmatised and that women, and nobody else, are at the centre.
I am not going to repeat what my colleagues have said because I agree with them. However, I would not necessarily agree with some of the amendments because of legal issues. The real issue is that this is not women-centric and the language is hurtful. It is not what the people who have spoken to me expect. Based on the themes raised in the discourse, I hope the Minister will find a mechanism to change the language.
Members got similar letters to the one the Minister received from the doctors this morning. The Minister needs to look again at this between Committee and Report Stages in order that he can, in some way, embrace the views expressed by members on desensitising the language and making it more woman-centric. Otherwise, there will be votes.
I am exceptionally uncomfortable with the language and that is why I opposed the repeal of the eighth amendment. I agree that we should not be legislating on the basis of feelings but we should not be legislating on the basis of euphemisms either. We need to be able to accept the advice of science and medicine as regards to when the life of an unborn child starts. In fairness, there are many on the pro-choice side who will have a view and accept it is a life as well. I would be uncomfortable with regard to deleting the medical and scientific evidence.
I am always happy to engage on language but I am not going to give a commitment that we can come up with better language because this is not just a letter from 24 doctors. These are the 24 doctors who make up the maternal foetal medical specialist group who are drawing up the clinical guidelines and the care pathways for women. I am not going to change language to give language that would be nicer to have, if that language means that women cannot have the service. That is the difficulty. We all want language that is destigmatising but we must ensure that in changing the language we are not stopping the doctors doing what they want and have asked us for so many decades to do, which is to give them clarity.
They have said to us that this wording would cause them to have less clarity. That is what they said to us this morning. We have a job to do in passing legislation while they have a job to do in preparing the clinical guidelines. We need to be careful that we are both respectful of those roles and that they dovetail.
I have had good engagement with Deputy O'Connell on this and I fully agree with what she wants to do and why she wants to get there. I am fully supportive of that as I am of Deputy O'Reilly and the others who tabled these amendments but I just need to be extraordinarily careful. Everyone wants us to be careful that we do not end up accidentally providing less clarity for our medics, who say in a letter to the committee, not to me, that this would be the unintended consequence of the proposed amendments. I suggest that we engage between now and Report Stage with my officials and with the legal experts and that I would also further engage with Dr. Peter Boylan as the clinical adviser, and that we would have an honest appraisal of the situation. I do not want to create false optimism or suggest that I think it would be easy to come up with a formula that would provide that legal and medical clarity but I am more than happy to try it.
I understand that but the Minister is being a bit unfair when he says the intention is to include "nicer" language. It is not about nicer language but more inclusive, less stigmatising language. There is broad agreement between us and using a phrase like that is not helpful.
I am sorry. "More inclusive language" is a fairer reflection of what I wanted to say. The point is that we can insert more inclusive language and have doctors not be able to provide services so when Deputy-----
That is not the intention, clearly.
No, but that is the advice that has been given to the committee this morning by medics. It is not at all that I as a Minister am against more inclusive language. We can have as many votes as we want on these amendments. The reality is no one in this room will provide medical care for these women, with the exception, perhaps, of the Chairman. The people who will provide medical care for women will be the professionals in the Institute of Obstetricians and Gynaecologists who sent this letter. We have to take it seriously, alongside the legal advice we have had. We have to make sure that our language mirrors what the Constitution says so that there is no legal challenge but we also have to make sure that the legislation is operable.
There are other suggestions in this letter that the committee members have all seen that I am going to have to reflect on between now and Report Stage to improve the legislation as well. It is not just about these amendments. This group of medics has views on many areas. There is an onus on us when they make us aware of these views to respond accordingly.
I do not seek to cause controversy but the Minister said a few moments ago that he met Deputy O'Connell to discuss this. We have asked him on numerous occasions to meet us and he has refused. What is the difference between Deputy O'Connell and us?
Deputy O'Connell called me to discuss her amendments and I was happy to discuss them.
He did not meet me. He never said "meet".
I also met the Minister in the corridor and he promised to come back to me that evening and he never came back to me.
We are going to discuss Deputy Fitzpatrick's amendments in great detail here and I disagree with them all, as he knows. No matter how much we engage on them, I will disagree with them. I look forward to explaining why I disagree in great detail later.
It is not fair if he is engaging with one side and not the other. At least he could have come back to me and told me he did not want to meet.
My only side here is-----
Welcome to the world of the Opposition.
The Deputy's comments are not relevant to the amendment we are discussing.
No, and the side I am on here is that I am implementing the will of the people, not subverting it.
I accepted the result last May.
I agree with the Minister's suggestion of further engagement. I do not want to suggest anything that would have unintended consequences or cause problems for the medical experts and I agree that this has to be operable. When we received all the amendments the other day, I applied a basic principle of looking at them with two points in mind, namely, who we are doing it for and who we are doing it to. I tried to apply a principle that the woman was central to all of it and that is why I am concerned about this. However, I accept the body of evidence supporting where the Minister is coming from. I recognise that he has no desire to put in complicated, chilling language or anything that would be offensive. I would be happy to be part of those discussions leading up to Report Stage, along with my colleagues, to get some clarity on this issue.
I was going to suggest that we might be able to hear a bit more of this advice, particularly from the doctors. I do not want to be accused somehow of limiting the scope of doctors. We will withdraw the amendments but reserve the right to reintroduce them on Report Stage. We are just getting bogged down.
It is important that we get this right and I am happy to engage on it.
Had Deputy Mattie McGrath indicated?
Is the amendment being pressed?
The amendment is withdrawn and I will resubmit.
Amendment, by leave, withdrawn.
Amendment No. 8 is in the name of Deputy Catherine Murphy, who is not present, so the amendment falls.
Amendment No. 8 not moved.
I move amendment No. 9:
In page 6, lines 12 and 13, to delete “a medical procedure which is intended to end the life of a foetus” and substitute “a medical or surgical procedure which is intended to end a pregnancy”.
Amendment, by leave, withdrawn.
I move amendment No. 10
In page 6, line 13, to delete “intended to end the life of a foetus” and substitute “an induced abortion to end a pregnancy using a medical or surgical procedure”.
Amendment, by leave, withdrawn.
Amendments Nos. 11 and 12 are related. Amendment No. 12 is a physical alternative to amendment No. 11 and they will be discussed together.
I move amendment No. 11:
In page 6, line 14, to delete “means a female person of any age” and substitute “means a person of any age who can become pregnant”.
The purpose of the amendment is to make the language inclusive and to future-proof it. It is clear that members of the LGBT community were very much part of the referendum campaign. They were our allies and I do not want to be seen to abandon people at this point in the proceedings. We have to be alert to the realities of the people who are going to use the service. I do not hold with some of the other amendments that go through the Bill line by line and propose amending every single reference. However, I support the concept of one all-encompassing amendment that makes it clear that when we say "woman", we mean any person that can be pregnant. We will have the debate but we are going back to the issue of inclusive language. To be modern and forward thinking, we need to be in a position to use language that is as inclusive as we can make it.
I am speaking to amendment No. 12 but they are both similar. This is an important question. The Government itself is bringing in reviews of the Gender Recognition Act yet we are proposing legislation today that does not recognise transgender people. This is not just cosmetic. There is fear among trans people that they will be excluded should they go to their doctor. I will give the Minister an example of something that has come up with a transgender person I know who has not physically transitioned but has changed their gender legally. They used to play a sport and were told they could no longer play that sport in their former gender even though physically they were the same. The reason I mention this is that it shows that the legal definition of our gender is critical, not just what we are physically. Last Saturday, I met a group of transgender people and they also raised this.
I am finding it hard to understand how the Government has gone as far as this point because the issue was flagged during the summer. We keep hearing these vague references to legal advice saying we have to do this but we have not been given the explanation as to why the legal advice cannot move with the times in 2018. It just seems strange given that the Government is also bringing in something progressive in the introduction of non-binary as a gender. LGBT and non-binary people played a sterling, lead role in this referendum. Young people who are non-binary and LGBT people were at the forefront on the ground of this campaign. They may not have been featured in the debates or at the large official events - lots of us were not at any of those - but people on the ground were the ones who led this, particularly young people.
It is a bit of a smack in the face. I ask the Minister to please accept the amendments. The best definition is important and not just for transgender people. The definition of a pregnant person should be anyone who can become pregnant. I also have a fear that the word "woman" could be used to prevent somebody who is a girl in legal terms from having an abortion as well. It would cover all those aspects. If the Minister wishes to include "woman" and "pregnant person", that would be fine, and I am not overly concerned about that. This is something that is really exercising people and there is much fear because of it. We must recognise the amendment and there should be a vote on it.
I get fully where the Deputy is coming from and I want this legislation to be inclusive. I want it to be trans-inclusive. I want a very clear message to go out from these Houses that this legislation is inclusive of transgender people. There would be unintended consequences to this, and Deputy Coppinger has correctly asked me to explain what those are. I will do that now. I suggest that either with a delegation of the health committee or without such a delegation I meet a representative group of trans people to discuss this with them between now and Report Stage. I also suggest amending the explanatory memorandum to the legislation to make it very clear that the legislation is inclusive. The legislation is inclusive but as our President said very recently, words matter, and I get that. When we put in words, we do not want to have unintended consequences that would entirely accidentally cause potential adverse consequences for trans people in accessing other services.
I very much and sincerely share the Deputy's aims and views on this but I cannot accept the proposed amendments. The definition of "woman" in the Bill means a female person of any age. It has always been my Department's policy position that a biologically female individual identifying as a male should enjoy the same rights as a woman for the purpose of this legislation. That is the policy intention and we should be very clear that nobody needs to change the Department's policy intention. It is the policy intention of this legislation, me as Minister and my Department. Section 18(b) of the Interpretation Act 2005 is of pivotal importance in ensuring that rights contained in legislation of a gendered nature apply seamlessly to trans people. It provides:
(i) A word importing the masculine gender should be read as also importing the feminine gender;
(ii) In an Act passed on or after 22 December 1993, and in a statutory instrument made after that date, a word importing the feminine gender shall be read as also importing the masculine gender;
The Constitution, the Statute Book and statutory instruments contain many gendered provisions; somebody told me there are more than 600 from relatively recent years. These are often in the context of providing protection to women in connection with pregnancy, childbirth or the elimination of gender-based discrimination. Cumulatively, these sources contain hundreds of specific references to women and each of these references to "woman" or "women" seamlessly includes trans men where appropriate in the context by virtue of the operation of section 18(b) of the Interpretation Act.
Section 18 of that Act and its effective operation are of particular importance to trans men in the context of pregnancy, childbirth, related employed rights and entitlements, maternity leave etc. under the Health Acts. These statutes all refer repeatedly to women, mothers and motherhood without making specific reference to others to whom it is appropriate they would apply. Whether they should is a much broader piece of work but as of today there are many pieces of legislation that mention "woman", "women", "mother" and "motherhood" that apply seamlessly to trans men. It is vital they do to enable access to some services. With the Interpretation Act, trans men are in a legally effective way included in the scope of the legislation without the need for intervening legislation. That was the purpose of the Interpretation Act of 2005.
The proposal to define "woman" in this Bill to include a person whose preferred gender has been recognised via the 2005 Act would be a departure from the established and, it is fair to say, highly effective practice that ensures trans men can access services through legislation. My Department has received advice on this and I have spoken directly with legal advisers on the matter. It indicates that to define "woman" in the Bill would create significant risk, which is what I am worried about, that would have the potential to cast real doubt on other gendered provisions in other pieces of legislation. It could open the possibility of somebody arguing that, by implication, references to women or other gendered references in the Statute Book did not appropriately include trans people. This would be an obvious unintended consequence that nobody here would wish for.
There is a broader aspect to this and my colleague, the Minister for Employment Affairs and Social Protection, Deputy Regina Doherty, is addressing the review of the Gender Recognition Act 2015, as Deputy Coppinger correctly mentioned. That review is ongoing and there will be a review clause in this piece of legislation. I will explicitly ensure that this is very clear in the explanatory memorandum, which would not have a legal consequence but would make it very clear to people that this legislation is trans-inclusive. The legislation is today trans-inclusive and there is no legal doubt about that. I take the point that words matter and the Deputy wants it to be very clear that the Act will be inclusive. I would love to be in a position to say today that we will include "pregnant person" in the definition. None of us has the luxury of doing so while ignoring the legal advice indicating that I would be causing a problem for trans men in doing so if they are to continue accessing other services that they can correctly access today. That is the risk.
I am happy to engage between now and Report Stage with Deputies Coppinger, O'Reilly and other Deputies who have raised this. I am happy to further tease out what I have articulated and meet the representative groups, which would be important. I want them and the people of Ireland to know - nobody should be in any doubt - that this legislation is inclusive in its provisions for trans men. Unfortunately, what seems like a relatively simple thing in a legislative process could have unintended consequences. It is for those reasons and with a very heavy heart that I am not in a position to accept the amendments.
I welcome the Minister's comments but I support Deputy O'Reilly's amendment. It sounds like many of us are on the same page in what we want to achieve and the 2005 Act is clearly very important. I want to press this a little more. One of the great problems with the eighth amendment was that it caused confusion for doctors. There were several issues with it but one was that it caused confusion and a lack of clarity. That is what the doctors told us. I am concerned that if we do not amend this legislation, that same lack of clarity could be reproduced here. We have not reached the sections yet but sections 5 or 6 relate to offences and there is still a reference to a 14-year jail term for straying outside the provisions of this legislation. Doctors, nurses, midwives and everybody involved with termination of pregnancy services will be taking this deadly seriously and ensuring they are protected, as well as the pregnant people.
The Minister, having access to departmental advice and the Attorney General's office, can have a conversation with us about the matter referencing the 2005 Act and therefore see this as okay. A GP in a surgery or an obstetrician or gynaecologist in an acute setting will not have that knowledge. They will have the Bill, which references a pregnant woman, and they could be dealing with a trans man. They could be dealing with a pregnant person who not only identifies as being male but who has been legally recognised as male and has an Irish passport stating that he is male, despite being pregnant. The question is whether we are creating confusion in such circumstances for the doctor. He or she may look at it and think that if he or she gets it wrong, he or she could be going to jail for 14 years. The doctor would not want to get it wrong. He or she might not know what the 2005 Act states but there is reference to "pregnant woman" in this legislation. The patient in question may be a man, defined and identifying as a man with a passport that indicates he is male. What would the doctor do? My concern is there would be confusion.
I am supportive of the amendments. Such circumstances may be at the margin. The 2005 Act was highly progressive but we have moved on 13 years and other things have happened. There has been recognition of lesbian, gay, bisexual and transsexual people, as well as gay marriage and rights. I support the amendments but I take in good faith the comments of the Minister. He is not pushing against the spirit of the amendments. I would like the Minister to address if he could the points I raised.
My concern is that a doctor will read the legislation, which will say "pregnant woman", and be unsure what to do. We have seen that sort of confusion in the past with the eighth amendment, leading to some tragic outcomes.
I will not repeat much of what has been said because I am one of the supporters of the amendment. This issue is of considerable concern to the trans community. I welcome the Minister telling the committee that he is willing to meet to explain the matter. Perhaps we can get legal advice about the interpretation of the 2005 Act and how it affects the legislation. I made a specific point on this on Second Stage. As has been said, doctors may face a great deal of confusion and it is crucial that what and whom the Act covers is clear.
Yes, Deputy Collins raised this matter on Second Stage. As a layperson and non-lawyer, this was the first thing I wanted to do and it seemed to make perfect sense. I wondered why one would not want to do it. When we looked at it in much more detail from a legal perspective, I was told by much greater minds than mine that it was not so straightforward and there could be that unintended consequence.
I would certainly meet a representative group, members of the health committee or both between now and Report Stage. There is zero policy difference between the Deputies and me on this matter and I want to provide for it too, but I am told I cannot do so legally. Deputy Donnelly correctly said that the world has moved on considerably from what was definitely progressive legislation in 2005, but the world is a different and, in my view, better place in its understanding of these matters now, which indicates the broader work that must be done and that is being led by my colleague, the Minister for Employment Affairs and Social Protection, Deputy Regina Doherty, to review the Gender Recognition Act in its totality, which I know is under way.
Deputy Donnelly made a separate point about clarity. To return to our conversation earlier, there is nobody in this room or the Oireachtas who wishes to cause any confusion or lack of clarity for any doctor. We wanted to move beyond that and I will talk to Dr. Boylan in the context of the clinical guidelines. I fully take Deputy Donnelly's point but I hope it is not the law that doctors pick up but rather the clinical guidelines. I will ask Dr. Boylan whether this should be included in the clinical guidelines to be certain that this legislation relates to trans people. I fully accept that one would not want there to be any confusion in the medical community.
I will look at the explanatory memo. I do not know about other members of the committee but when many of us, myself included, read legislation, the first thing we tend to read is the explanatory memo to learn what the Bill is about and what it tries to achieve. That tends to be the accessible way of reading and understanding legislation. For all of us, and I am sure for the public at large, the explanatory memo is usually the first point of reference. I have just talked to officials here about possibly amending the explanatory memo between now and Report Stage because, as I said, we all want to do this and none of us wishes to do it in such a way that there would be an unintended consequence.
We also have an amendment. I feel somewhat conflicted because this is an important issue and any time it is raised we receive this answer about legal advice to which we are not privy. I know the Minister is giving us a brief outline but it is still unclear. The gist of what he said was that if we insert "pregnant person" it could leave open the potential for somebody to take a legal challenge against other laws which do not take the same approach. I am not a legal person but I find that hard to believe and I do not get it. The scenario that Deputy Donnelly and I outlined is more likely, where somebody who has legally transitioned to being a trans man, but who could become pregnant, could go to his doctor and have that experience. The Minister is in a Government that says it will do these things for trans people, but surely with all the legal brains that we have something could have been done. The Minister says some provision will be made in the explanatory memo and the clinical guidelines.
I do not see how inserting in the legislation "pregnant person", for example, could possibly have an impact on other laws. I do not see it.
I am in a bit of dilemma. Obviously, there will be an opportunity to resubmit this amendment for a vote or debate in a full Dáíl, even if it is withdrawn today.
I need to hear more. It is similar to the matter earlier about the definition of the law. We are getting only a glimpse and we need a bit more legal information about the rationale for the decision. One often hears wild claims, such as during the debate on repealing the eighth amendment, and, therefore, I am not fully convinced.
I do not wish to delay the matter.
Not everybody in this country is as progressive on the issue of inclusion as I would hope, expect and know members of this committee to be. I do not wish to ignore the legal advice that suggests that people could take challenges that could cause difficulties for people. None of us wants that to happen. Through my speaking points, I shared the totality of the advice I received and there is nothing I am keeping from the committee in that regard. This was one of the suggestions that I genuinely, and naively, thought we could surely just do, that is, insert "and pregnant person". I am duty bound, however, to share with the committee the potential unintended consequences of that.
In good faith, I propose to the committee that I will make available to it officials and legal advisers in the Department to outline the potential unintended consequences, as they have done to me, that I will meet the representative groups, either with a delegation of this committee or not, to alter the explanatory memo, and that I will talk to Dr. Boylan about the clinical guidelines. I cannot put anything in the guidelines myself and no one would want me to. Deputies Donnelly and O'Reilly are entirely right that the guidelines are one area where we do not want any lack of clarity for trans men. I hope to be allowed to do those things and work with the committee on them, and the Deputies will certainly have the right to revisit this issue on Report Stage, as will I if I identify a way of making progress on it.
The reason these amendments are being proposed is in response to the trans community who we must consult to ensure this legislation is fit for purpose. I share the concern expressed by Deputy Donnelly about a doctor sitting in a surgery, looking at the law and wondering what is allowed and what the risks are. It is a serious issue. We have the right to revisit this but in the meantime members of the trans community themselves need to be central to the debate because they are the ones who will be affected or not by this legislation. One of the unintended, or possibly intended, consequences could be that there will be fabulously inclusive legislation, which would be wonderful. We want to ensure it does not discriminate against any group and that we have the opportunity to say that, notwithstanding what happened in 2005,13 years later we have moved on and the legislation should reflect that.
If we are moving to the business end of proceedings I am happy to withdraw amendment No. 11 on the basis of commitments given by the Minister and of engagement with members of the trans community.
Amendment, by leave, withdrawn.
Amendment No. 12 not moved.
Section 2 agreed to.
Sitting suspended at 1.40 p.m. and resumed at 2.25 p.m.
We resume in public session. When we suspended, we had concluded section 2. We now move on to section 3.
Section 3 agreed to.
I move amendment No. 13:
In page 6, to delete lines 27 to 29, and substitute the following:
“4. (1) The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.
(2) No public moneys shall be provided by the Oireachtas to pay for the carrying out of a termination of pregnancy in accordance with this Act, other than a termination of pregnancy in accordance with section 10 or 11 in a case where there is a risk to the life of the pregnant woman.”.
This amendment was tabled arising from the high volume of calls and correspondence I received from people who are genuinely concerned, taxpayers who voted "Yes" and "No" in the referendum. Recent research carried out by Amárach showed the majority of taxpayers were opposed to funding abortion; indeed, 44% of those opposed were "Yes" voters. At a time when our health service is creaking at the seams, with September figures indicating 8,000 people were on trolleys, 718,000 people waiting to be seen or treated by a doctor and children having to wait 18 months for scoliosis treatment, the injection of €12 million as a starting point for elective abortion services is unacceptable. As an elected representative, I have to highlight my constituents' concerns. I will be bringing this amendment to Report Stage.
I have to go to the Dáil to speak about the schools that are falling down in my area but I just want to make a brief comment on this particularly cruel and insensitive amendment. To put forward the idea that only someone whose life is at risk should have their termination paid for while that of any other person would not is cruel. Bringing this down to brass tacks, this would include Savita. Savita did not have an abortion because her life was not deemed to be at risk, it was "only her health". Under this amendment, she should not have benefited in any way. This and another stream of amendments have angered people over the weekend.
On the general issue of cost, we could decide not to fund abortions and continue to send people abroad and ignore reality. Could I, however, just make a case for how we will save money? I was thinking about this over the weekend. The cost of having an abortion if, for example, one travels to the UK is anything from €1,000. That money will now be in the pockets of working class and ordinary women. That is a really important saving for them and their families because, contrary to what the anti-abortion crowd thinks, the majority of people who have abortions are actually mothers already. They have other people in their families to look after. We are not going to rehearse the referendum - we won it - but I am struck by the cruelty of some of these amendments. People will have money in their pockets that they would not have if we continued to export them. I look on this as one of the biggest victories for ordinary women in a long time in this country and make no apology for that. The idea that any person who needed an abortion on health or other grounds would be deprived is cruel. Recently, a relative of mine who was pregnant with twins with a fatal foetal abnormality had to have an abortion. If Deputy Nolan is suggesting for one minute that that should not be paid for, she would really need to examine her whole humanity.
Where in the heads of the Bill did it say the taxpayer would pay for abortions?
I have friends who campaigned and voted on all sides but even those who voted "Yes" have come to me since with a problem with the taxpayer paying for terminations, particularly when the health service is in crisis anyway with waiting lists but I will not go into all of that. Recently I met a woman who has a gynaecological problem and has been on a waiting list for two years. She has a problem with terminations being paid for by the taxpayer even though she campaigned for a "Yes" vote. Will Deputy Nolan include fatal foetal abnormality in the exceptions?
Before I get into the substance of what Deputy Nolan is trying to do, the amendment is tabled to the wrong section of the Bill. This section has nothing to do with eligibility. That is section 25, which deals with the amendment to the Health Act. This section is in every piece of legislation. It allows the Minister of the day to administer the Bill. Funnily enough, I will not be involved in the termination of services. That will be done through the medical profession and through the eligibility section of the legislation, which is section 25.
To give the Deputy guidance, if she wants to do what she wants to do, and I will get onto the problem I have with that in a moment, she should be amending section 25 that deals with the Health Act and not this section of the Bill, which is a standard section in every Bill that comes before the Houses of the Oireachtas. Even if the amendment did what the Deputy wanted to do and was accepted, it would not achieve what she is endeavouring to achieve. For the Deputy's considerations on Report Stage, this is not the correct place in the Bill. The correct place is the eligibility section, which is section 25. This is the first flaw in the amendment. Then there is the sheer humanity flaw in terms of why the Deputy wants me to ask hospitals to send bills to women who have had fatal foetal abnormalities in our maternity hospitals or to a woman who has been in a car crash and has almost died and has a serious risk to her health. Why should I not care for these women in our hospitals today?
Here is some breaking news. Women are taxpayers. This is about providing services for women, so when we talk about taxpayers it is not a clear and distinct group of people that is different from the group of people who will benefit from the legislation. Women are taxpayers and the people voted overwhelmingly for this legislation. I thought it was the policy of the party of which the Deputy was a member, it is the policy of most people in the Oireachtas and it is certainly the policy of Sláintecare, to which I believe almost all of us have all signed up, that we will move towards universality. As we bring in new services usually in the House I get into significant difficulty if I am not providing it on a universal basis and if I decide cost is a barrier. Should I send women who have been raped a bill?
Will I send bills to women who have been domestically abused?
I presume Deputy Smith is being sarcastic because I know her views and record on this. I do not get Deputy Nolan's problem with it. I get that she is very sincere and I respect her right to have her view on abortion. She and I disagree on it and that is fine, and she has every right to hold her view, but I do not get why she has a difficulty with the Irish health service providing support. The idea of equating this with trolleys is a crass political attack on me. I will come in here and debate my record on health any time with any person, and I look forward to doing so, but this is a crass political attack. Approximately 80% of these procedures will be carried out in the community. None of these women will be on trolleys or in hospital beds. They will visit their GP or a family planning association. I am not re-running the referendum either, but most of the women in this country who find themselves in crisis will be seen in primary care. They will be nowhere near hospital trolleys or hospital beds. Those who will be in a hospital setting will often be in some of the most tragic situations. They will have a wanted pregnancy. Perhaps they will have been told the baby they desperately wanted has only half a head. I do not understand the Deputy's difficulty.
I really resent the phrase "elective abortion" because it goes back to the cheap connotation of abortion on demand. No woman I have ever met has said that she really wants an abortion. I do not know whether the Deputy has met any and perhaps she will tell us about them. These are people in extraordinarily difficult situations. It is not for Deputy Nolan or me to judge them. Thank God, the people of this country decided in their wisdom it is not for any of us to judge them. This legislation is about looking after them and caring for them in our own country. We should be moving towards a universal health service. This is my policy position and my ethical position.
Deputy Nolan fundamentally disagrees with the outcome of the referendum. I am sure she respects it and she respects democracy and that the people voted in favour of it. I accept some people voted against it and that is fine. Think of it from a practical point of view. If the idea here was that people voted by an overwhelming majority to repeal the eighth amendment and make these services available in our country at last, if we decide we are going to start charging people for the service cost will remain a barrier. The young woman will use the Internet and access the pill without any doctor or medical support. What the Deputy is trying to do here is to subvert the will of the people, which is to make sure women do not need to travel in these circumstances.
On a practical level the amendment is in the wrong place but that is for the Deputy to decide. If she wants to stop me doing this she needs to amend section 25 of the legislation that allows us to do this. Deputy Murphy O'Mahony asked where eligibility appears in the heads of the Bill. Eligibility was not dealt with in the heads of the Bill and I accept this. It is a policy decision I made. I very much made it in line with what I felt were the views of the majority of the Oireachtas and the people. That is my sense and the people can judge me on this decision. Obviously it will come to an Oireachtas vote. This is about the service being free, safe and legal. If it is not free it will be legal but it will not be safe because women in vulnerable situations will have to travel and women in vulnerable situations will not seek medical consultation. Whatever Deputy Nolan's view on termination, and I accept we have different views and I am respectful of this, if she found that a woman in her life was in crisis she would want that woman to have access to medical professionals. Regardless of the Deputy's view, and we have different views on this, if that woman is going to proceed with an abortion surely the Deputy would want to know it will happen in an environment that is safe, regulated and overseen by medical professionals. This is why I want to make sure that if women make that decision they can access the service.
We already have the maternity and infant care scheme. Pregnant women in the country today access free medical care. As the Chairman knows, it is a very successful scheme. I accept the Deputies here want to expand it further and I welcome this discussion and debate. Expectant mothers can already access their family doctor and the hospital obstetrician. It is a universal service and has nothing to do with means or whether people have a medical card. What the Deputy is asking me to do is discriminatory. She is asking me to state that, if two pregnant women are sitting in the waiting room of their doctor's surgery, because she approves of one of those women's choices she can have the service free but because she dislikes her choice the other woman must pay. Both pregnant women are deserving of access to the Irish healthcare system. The only difference is one woman is making a decision the Deputy does not approve of. Quite frankly, whether the Deputy or I approve of it is not the issue, it is the woman's choice. I will not discriminate where the only difference between two women is their choice. I will not say one pays for the doctor and the other does not. That would be entirely discriminatory. We already have a scheme that cares for pregnant women that is universal and provides free access. All we are simply doing is stating the same fundamental policy principles should apply to all women regardless of their choice. The Deputy has a different view.
There is no need for the Minister to behave like a frightened schoolboy. When I said I was contacted by taxpayers many of them were women. I did not think I needed to single out gender for the Minister but clearly I do. The Minister may be aware of the fact that tens of thousands of women, including myself, voted "No". With regard to the Minister's cheap shots about my former party I do not agree with any policy of my former party.
I want to make that clear. That is why I am an Independent Deputy. I did not bow to pressure like the Minister did. He once said he was pro-life. When he then realised that was not popular or would not guarantee him his Ministry, he decided to turn.
I am sorry, Deputy, but-----
I am not that sort of person. The next point I made-----
Mine is an evidence-based policy.
Deputy Nolan should not make personal attacks.
Excuse me, but I am entitled to defend myself. Some of the remarks-----
My remarks related to the Deputy's amendment.
-----were totally unacceptable.
Deputy Nolan, speak to the amendment, please.
I will indeed. The Minister deliberately and constantly used hard cases and dehumanising language to justify the unnecessary harshness and extremities of this Bill. That is what it is. At the end of the day he, like other Deputies, must live with himself.
The Minister spoke about healthcare. I support free healthcare 100% - there is no doubt about it. Obviously, my definition of "healthcare" is where we save lives, not end them, and this Bill is about ending lives, as such. Of the population, 34% voted against the referendum and approximately 20% of people who voted "Yes" do not agree with this Bill. Those people are entitled to representation. Words such as "cruel" and "barbaric" have been used regarding some of our amendments. Those types of word seek to close down rather than foster debate. We have done well so far today in terms of having a good debate without any rancour or difficulty, and we should try to continue in that way.
The Minister mentioned that this should be a woman's choice and we should not discriminate between choices, but the Bill discriminates against women's choices all over the place. It limits choice. There are many instances in which the Minister believes a 14-year penalty should be applied as regards the choice of a woman. He cannot pretend where choice is concerned. The Bill does not allow for late-term abortions, for example. That choice is prevented. Unless the situation is made exactly the same as it is in Britain, there will always be someone who travels. That is the truth of the matter. I imagine that most of the people on the pro-choice side would agree on this point. There will be women travelling after this Bill.
That is the issue. The eighth amendment committee heard evidence to the effect that the majority of abortions happened because of socio-economic reasons, not health ones. The Minister lauded the eighth amendment, but that was the evidence it heard.
I said that about the assembly, not the eighth amendment.
I am sorry - the committee heard that evidence. I was surprised by the backlash on the street. When the Bill was discussed initially, I did not expect people to be annoyed. However, they raised with me the point that 2,500 kids could not get access to mental health services. There is a question of humanity involved in that as well. We have a portion of money to be spent in our health services to deal with issues affecting people. Obviously, many feel that there is a prioritisation, in that money is being found in this space but is not being found for the 750,000 people on health waiting lists or the record 9,000 in October's trolley count. There is a question in people's minds regarding the prioritisation of money for abortion services instead of other health services of which people have considerable need. That is my view of this Bill.
We should do our best. It is a pity that Deputy Coppinger is not present, as she used the word "cruel". It is impossible for some people not to find difficulty with the language being used because this is such a difficult space, but we should at least allow for honest debate and not try to close it down.
A number of members have indicated. I assure them that they will be called. In order, they are Deputies O'Connell, Fitzpatrick, Donnelly, Durkan, O'Reilly and Smith.
I had indicated before the Minister's contribution and I cannot improve on it. The Sláintecare policy is one of universal access and reducing barriers and costs. I do not want to rerun committee or referendum work, but we heard extensive evidence of women in situations of domestic violence who might not have been able to access funds. This is about compassion and women and not stigmatising. It is also about having a mature and informed approach.
I wish to touch on an issue. I have heard many times about the 33.4% of people who voted "No". Conversely, one could argue that we did not allow the person who came second in the recent presidential election to occupy the Áras for one fifth of the time. We can get into a back and forth if members want, but it would not be helpful. From a legislator's point of view, any triaging of women and deciding who is deserving of healthcare is regressive, judgmental, moralistic, discriminatory and contrary to what we sought to achieve in the first place.
The Minister first put aside €12 million. Now it is €50 million, emergency intervention excluded. We have a funding crisis in our health service. As far as I am concerned, the Minister is scaring the public to use their money, which means that some of these abortions may not be urgent or necessary. Under the Minister's watch, we have record hospital waiting lists, the CervicalCheck scandal and the resignation of the head of the HSE. The people of Ireland did not intend to have elective abortions rather than emergency abortions funded out of the public purse. If commercial abortion clinics moved to Ireland, would the Irish people then be funding their abortion profits?
Amárach Research conducted a survey of 1,000 people in August 2018. Of that number, 59% opposed taxpayers funding abortions and 41% were in favour. Interestingly, 44% of "Yes" voters were opposed to taxpayers funding abortions. Please, Minister, stop scaring the public to use their money.
Termination of pregnancy services should be free and I will oppose the amendment. However, it is perfectly legitimate of any Member of the Oireachtas to query and debate which health services should be free. For those of us who believe that termination of pregnancy services should be free, it is incumbent upon us to make the case.
Some of the criticism of the amendment is technically incorrect, in that it excludes sections 10 and 11. According to it, in cases of early pregnancy and fatal foetal abnormality, which are sections 12 and 13, payment would be required and, in the cases of sections 10 and 11, which are risk to the life or health of the mother, payment would not be required.
I would like to speak to the sections that are not exempted by the amendment, starting with section 13 on early pregnancy. If a woman had to pay for medical services and drugs provided in the case of early pregnancy, could that create a financial barrier to accessing health services? It most definitely would. A woman would have to attend a GP, which would cost €50 or €60, pay for drugs - I do not imagine they would be cheap - and then return to a GP, which would cost another €50 or €60. She may have complications or require follow-up. She could end up paying in the realm of hundreds of euro. That potential cost creates a financial barrier to accessing healthcare services for women. The Minister made an important point. The unintended consequence of this is that women who cannot afford several hundred euro can afford to go online-----
-----to buy pills and self-administer without medical supervision or safety. For those reasons, termination of early pregnancy under section 13 must be free because we are trying to provide this service to everyone.
The next section that is not exempted relates to fatal foetal abnormalities. Perhaps this was a drafting error.
I would find it unconscionable that any pregnant woman faced with a fatal foetal abnormality at the end of all of the medical care that she needs could be faced with a bill. Let us think about this. One is talking about GP fees, hospital visits, surgical fees, specialist fees, and aftercare because a woman could be in hospital for days or weeks. Were this amendment to be passed we would have a situation in Ireland where a pregnant woman faced with the tragedy of a fatal foetal abnormality could be faced with a massive bill of not just thousands of euro but tens of thousands of euro. That, to me, would be utterly unconscionable. Maybe it was not meant in the drafting but, as this amendment is tabled, that is what it would do.
I spoke to the Minister about the following during Second Stage and there are amendments later so I will not go into the details now. It would be a perverse situation in our country for the termination of pregnancy services to be free but contraception to reduce crisis pregnancy and other maternity services not to be free. I have tabled amendments, some of which have been ruled out of order, to discuss the issue that all contraception should be free. Indeed, there is highly effective longer-acting contraception that can cost hundreds of euro which, again, is another barrier. That cost should be removed. Although Dr. Noel Browne brought in a groundbreaking policy called the mother and child scheme, and he was pursued after his political career and destroyed by the Catholic Church for doing so, all of maternity care is not free. For example, there are some drugs for nausea and there are costs that can be incurred by pregnant women that we will talk about later. In terms of the amendment leading to the racking up of potential costs of hundreds of euro during early pregnancy and charging anyone for any medical care for fatal foetal abnormality, both of those would be wrong. It is for those reasons that I believe the amendment should be opposed.
I agree with the last speaker almost in the entirety, and I know that might be strange for me to do sometimes. It would be a travesty, having regard to the debate that has taken place in this country over the past year, in particular, both in the Citizens' Assembly and in the special committee, if it were to emerge at this stage that we were to frustrate what was intended by withdrawing the financial support. I note the case for competing demands. There are always competing demands in the health, housing and educational services. Having regard to the debate that took place, this demand is regarded by many in this country as a very serious demand. It is no harm to remember that if we were to say to people, "Well, okay, if you can afford to have all of these things done privately then that is your own business but for those of you who can't we are very sorry about that but you cannot avail of the services", it would apply even in the most extreme circumstances or in the case of Savita Halappanavar and similar cases. It would be a terrible tragedy if we were to allow ourselves to go down that road.
An opinion poll indicates that 44% of the people who voted "Yes" were opposed to public funding of the service. I do not know how it was intended to fund the service in the first place since the general impression was that we are going to have a universal service eventually. The idea was to protect the health and lives of women, and I mean the health leading to the lives of women. It was deemed necessary to do that, as a matter of some considerable urgency, and the people very overwhelmingly came forward to make their decision. I remind the House again that they made their decision on the basis of the information prevailing at the time - the information that was used by the committee and for the debates of the Citizens' Assembly - all of which was important.
It would be unconstitutional if we were to introduce an amendment that rendered the provisions of the legislation being proposed unavailable to a large sector of the female population. It would be morally wrong to go down that road. There are lots of competing demands but a woman whose life is in danger is a competing demand as well. One can say hard cases make bad law. I contend that a lack of law does not make for good cases or a good ending in such situations. I am strongly of the view that the people intended that the proposals would be funded in the normal way, as part of the health service. To strip part of that out at this stage and do otherwise would be a travesty.
I am interested in the amendment. I first heard about this notion when it was put forward by a well-known businessman and I am curious about where it came from. Personally, and on behalf of my party, we are in the business of trying to ensure that we maximise universality. In fact, I wish that the Minister was more committed to universality than-----
-----but we will not argue that here. I urge the Deputy who proposed the amendment to consider the case of pregnant rape victims who live in direct provision, and tease out the potential consequences and hurt caused. The majority of people have spoken, we know the results of the referendum and there is going to be legislation. It is open to us to ensure that the services are available to a maximum number of women. Indeed, it is open to some people to draw a line down the centre and say that the women who can afford it can access a full range of healthcare and those who cannot can get to the back of the bus or whatever. My party opposes this regrettable amendment. Given the discussion that we have had here, I hope that the Deputy will see fit to withdraw her amendment and I do not think it serves a good purpose.
I will first make a general point and then ask a question. Given that we are re-running the debate of the referendum now, which may be repeated as we go through these amendments, I would like all of us to be aware that there is a job of work to be done for the women and the pregnant people of this country. We made a commitment to them. If we are going to keep re-running the debate we will do a complete disservice to the entire health service in Ireland, particularly in terms of women.
Interestingly, the amendment has not been ruled out of order. If it suggested that it could be unconstitutional and flies in the face of the spirit of the eighth amendment or, in removing the eighth amendment, that it is morally wrong and regrettable, then how was this amendment left in yet two amendments that called for the extension of services to people in Northern Ireland were ruled out of order? The refusal to extend the service to women who live less than 90 miles up the road should be more part of our debate about inclusivity rather than rehashing the long and tough debates that we have had for months and years in this country. This amendment should have been ruled out of order and the other two amendments allowed in.
I have no role in the ruling in or out of amendments. I would have welcomed the opportunity to-----
Can the Chairman answer my question? What was the legal opinion? I have made a valid point and I do not mind if I have to wait until later to get an answer.
That is a matter for the committee to follow up with the relevant officials. The ruling had nothing to do with my function as Minister or that of the Government.
As a point of information, the amendments that Deputy Smith referred to were ruled out of order on a technicality because they would create a potential charge on the State.
In terms of why amendment No. 13 was deemed acceptable, the Bills Office made the decision and obviously did not have a problem with the amendment. I accept the point made by Deputy Smith.
This amendment has the opposite effect. It would not have a charge and would restrict the spending of public moneys.
The amendment could be unconstitutional and it seems that was not taken into consideration.
I want to take Deputy Smith's advice and not rehash the referendum debate; that is a good reminder for all of us.
I want to quickly make three points.
First, a technical point, I genuinely do not believe the proposed amendment No. 13 is where the Deputy would want it because eligibility is dealt with in section 25.
Second, let us be clear that we are not doing anything radical today. Pregnant women in Ireland can visit their GP free of charge six times during their first pregnancy and five times during their second pregnancy. Women with diabetes and other conditions can visit more often. The amendment proposes to charge a certain subset of pregnant women because the Deputy does not like their decision. Pregnant women can access their GP free of charge today and what is proposed in the Bill is not a radical departure but the proposed amendment tries to discriminate against some women because some members do not like the decision they are making. I thought Ireland had moved to a better place in that regard.
The proposed allocation for this service is €12 million and I have been asked whether this money could be allocated to meet other needs. If the message is not to invest anything in women's healthcare until every other need has been solved, that is like asking women to go to the back of the queue. The sum of €12 million represents 0.0007% of the €17 billion health budget in 2019. It cost 0.0007% to care for women in this country. Let us not try to suggest that this is overly generous or flaithiúlach
after 35 years of neglect.
People tell us not to rehash the debate on the referendum. The pro-life Deputies have tabled 16 out of the 180 amendments. We are looking for a deviation 16 times and the others are pro-choice deviations. If we stuck to the Bill, we would not be here at this stage. There is an opportunity for respectful opposition. If opposition is deleted, we will have a worse Bill. We need to test the Bill rigorously at all stages.
I have sympathy for Deputy Nolan's amendment. It does not relate to serious threats to the health of the mother or to the life of the mother in any way. Deputy Donnelly mentioned this point, but Deputy Durkan ignored the voice. Those two sections of the Bill are not covered by this amendment.
There are many people who like myself have a conscientious objection to the issue of abortion. Freedom of conscience is an important element of our society and people feel that their taxes are going to pay for an operation which in their heart and soul they radically oppose. That is one of the reasons for the amendment. As I said earlier, I was surprised by the level of opposition to this element on the street when I met and talked to people. As Deputy Durkan said, there is an opportunity cost, if one pays €12 million for this service, that €12 million is not available for emergency scoliosis operations.
The amendment states, "other than ... in a case where there is a risk to the life of the pregnant woman." The Deputy is factually wrong as it does not cater for anybody else.
May I ask if the Deputy wants to keep the money in Ryanair's pockets or in the pockets of people in this country? That is the reality. The Deputy spoke about saving money but people have saved money from this. I tried to draw that out but the reality of the proposal is that the wealthy women will be able to access abortion whereas working class and poor women and people who cannot travel will continue to suffer. It is unbelievable.
Amendment put and declared lost.
Section 4 agreed to.
I move amendment No. 14:
In page 6, between lines 29 and 30, to insert the following:
"Guarantee of access
5. (1) The Minister for Health shall ensure that pregnant women may access abortion care in accordance with the terms of this Act in a safe and timely manner. The Minister shall be responsible for the provision and regulation of abortion care to the highest attainable standards.
(2) Access to abortion care, including to related sexual and reproductive healthcare before and after an abortion, shall not be impeded on discriminatory grounds, including on grounds of race, sex, religion, national or ethnic origin, marital or family status, immigration status, sexual orientation, age, or other social status.
(3) In making any decision under this Act, or in providing medical care and services under this Act, the provisions of the Act shall be interpreted in the manner most favourable to achieving positive health outcomes for the pregnant woman, and to the protection of her rights.".
The purpose of the amendment is to protect women and to ensure that abortion services, as part of a broad range of health services, deliver for women. The addition of this provision would bring Ireland into line with the prevailing trend of recently reformed abortion laws and, in particular, with countries that have had the same national conversation that we did over the past number of years, including Spain and Portugal, two countries that we referenced as part of the Joint Committee on the Eighth Amendment of the Constitution. It would make clear that women who seek abortion must not be subject to discrimination. It is a relatively simple amendment.
A number of Deputies have proposed amending Part 1 to include a provision guaranteeing access to termination of pregnancy care. I understand what they are trying to do but it is superfluous, without being in any way disrespectful in using that word. The entire purpose of the referendum and this enabling Bill is to give access that does not currently exist and subsequently as we have just debated. We have further enhanced access by making sure it will not be discriminatory, as it will be free and universal and part of the public health service. Everything we are doing in this Bill is about access and ensuring universal access albeit within, as Deputy Tóbin rightly reminds me, the regulated environment that we are deciding to make this provision legal.
I understand the concerns that prompted the proposed amendments but I am responsible for ensuring access to termination of pregnancy in accordance with the terms set out in the Bill and, therefore, there is no need for this to be restated in the Bill. We are trying to keep the Bill as clear and concise as possible.
Regarding subsection (2) of the proposed amendment, the Equal Status Acts, 2000 to 2015, prohibit discrimination in the provision of services, including health services on the grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion and membership of the Traveller community. Our laws ensure that there cannot be discrimination on those grounds.
Finally, on the proposal that the legislation be interpreted in a way that is most favourable to achieving positive health outcomes for pregnant woman, medical practitioners, the personnel with responsibility for providing medical care, are obliged to act in a patient's best interest at all times. The Medical Council's guide to professional conduct and ethics for registering medical practitioners of 2016 makes it clear that a medical practitioner's duty is to act in the best interests of patients and to advocate on their behalf. The council is the regulator and gets to enforce that. I appreciate the Deputies care for those who will have access to services under the legislation. I assure them, as I have on many occasions, that in drafting the legislation, it was genuinely my priority to ensure that it closely mirrored what the Oireachtas committed us to do and what we told the people we would do and ensure terminations are provided in a medically safe and regulated service. I believe the Bill achieves this and I do not see the need to restate it. Inserting additional words in the legislation could inadvertently add to confusion.
As the Minister appears to agree with the intent and more or less the substance of the amendment, if I were to be smart I could ask that if there is nothing in the amendment that he is not going to be doing, what is the harm of including the amendment?
I told my officials that the Deputy would say that.
The Minister may have won a bet.
The purpose of our amendment is to ensure that access is guaranteed. We clearly have a concern and other people outside of this process have indicated they may have a concern.
I am personally happy to withdraw this amendment. I am not going to push the committee to a vote but I do reserve the right to submit something similar on Report Stage on the basis of the discussions we will have in the intervening time.
Amendment, by leave, withdrawn
Amendments Nos. 15 to 21, inclusive, and amendments Nos. 24 to 31, inclusive are related and may be discussed together. Amendments Nos. 16 to 21, inclusive, are physical alternatives to amendment No. 15. Amendments Nos. 17 and 18 are physical alternatives to amendment No. 16. Amendment No. 18 is a physical alternative to amendment No. 17. Amendments Nos. 20 and 21 are physical alternatives to amendment No. 19. Amendment No. 21 is a physical alternative to amendment No. 20. Amendment No. 31 is a logical alternative to amendment No. 24. Amendments Nos. 26 to 28, inclusive, are physical alternatives to amendment No. 25. Amendment No. 28 is a physical alternative to amendment No. 27.
Deputy Catherine Murphy is not here to move amendment No. 15.
Can we speak to the amendment?
She is not here so it falls.
Can I say that I might bring such an amendment forward on Report Stage?
Not if it is not moved here.
I do not think so. Can we get technical advice on that?
Can I table an amendment on Report Stage if I mention it at this juncture?
That is not the case if a Deputy has mentioned that is his objective.
If the Deputy raises it, I understand it can be the subject of an amendment on Report Stage.
Amendment No. 15 not moved.
I move amendment No. 16:
In page 6, lines 31 and 32, to delete all words from and including "(1) It" in line 31 down to and including line 32.
Essentially, this amendment provides for the offences section to be taken out of the Bill. We feel that the criminal aspect of this should not be brought into a Bill. We campaigned to have the criminal aspect of the eighth amendment repealed through referendum. We are directed by the Irish Family Planning Association on this as well. UN experts and agencies consistently call for the full realisation of sexual and reproductive rights including access to safe, legal abortion. This includes the UN treaty monitoring bodies. We feel there should be nothing in the Bill that criminalises a woman for accessing abortion services. If a woman goes to a doctor in the ninth or tenth week and cannot access the pill, for example, and has to go somewhere else, is that criminalising the woman? This has to be clarified. We are calling for those provisions to be taken out of the legislation.
I thank Deputy Joan Collins for her amendment. First, the woman seeking the abortion is never criminalised. We are following through on the recommendation of the all-party committee that the woman seeking the abortion is never criminalised. There is decriminalisation in that respect.
Perhaps we have different views on this, but if something is legal in certain circumstances it obviously needs to be illegal in other circumstances or else it is effectively legal in all circumstances. This Bill does provide restrictions; its title refers to the "regulation of termination of pregnancy". We can argue and debate, though I think the question was largely settled, that the grounds put forward are the grounds on which it is legal. On other grounds beyond that, it is illegal. If I were to delete the offences section in its entirety, there would be no offences for breaking that law, which I think could actually leave women in vulnerable positions. In the area of illegal abortions, how could we protect women? What about forced abortions or instances of coercion?
I want to say at this stage, because it is very much related to the amendments we are discussing, that I would like to work with colleagues and am already working with the Office of the Attorney General to move the offences section in the Bill. A number of colleagues, including Deputies Joan Collins, Clare Daly, O’Connell and others referred on Second Stage to the fact that the offences section is the first thing to hit people when they pick up the Bill. That is not the policy intention. It is due to a drafting precedent or template; that is where offences sections generally happen to be placed in legislation. While not all Bills or Acts are picked up and read all that often, this might be one that is. This legislation is about providing access to regulated termination of pregnancy services. We are going to see if we can bring forward amendments on Report Stage to locate the offences section in a more appropriate part of the Bill so it is not the first thing a reader sees.
Section 5 sets out the substantive offences under the Health (Regulation of Termination of Pregnancy) Bill 2018 and provides that it shall be an offence for a person by any means whatsoever to intentionally end the life of the foetus otherwise than in accordance with the provisions of the Bill. I remember that I was asked lots of times during the referendum campaign, as I am sure many Deputies were, whether the foetus has any rights. Of course, the reality is that it does. Outside the terms of this Bill, it is still illegal to destroy the foetus. I know words in this area are emotive but I am using the word "foetus" because it is the medically appropriate word. It will still be an offence to end the life of a foetus outside of these terms. It would be inconsistent to say it was an offence yet to have no offence in the Bill.
Officials from my Department and the Office of the Attorney General did consider how to phrase that because a number of people raised the issue and indeed it came up earlier in our debate. However, the key consideration in drafting any legislation must be to ensure that the intent of the law is as clear and unambiguous as possible. In this case, this formulation was put forward after considerable thought and discussion. It is the clearest formulation possible for the offence and I would be very nervous, for the reasons I outlined earlier in terms of legal and medical clarity, about moving away from it.
Under section 5 it is also an offence to prescribe, administer, supply or procure any drugs, instruments, apparatus or other thing which is intended to be used with the intent of ending the life of a foetus or being reckless about whether it might be used for that purpose. I repeat that these provisions do not apply to a pregnant woman who has ended or attempted to end her own pregnancy. This Oireachtas was quite clear in wanting to move beyond the criminalisation of the woman. It is an offence for a person to procure a termination for a pregnant woman outside the provisions of the Bill.
There needs to be a reasonable conversation in this area. If we are at long last providing a way of accessing free, safe and legal medically supervised abortion, we need our law to be encouraging people to use the free, safe, legal and regulated abortion services. When people ask what if a mother or sister does this for her daughter or friend, I would respond that we need everybody to be using the legal, safe, regulated service. If there were no offences in this Bill, we would be saying it was kind of all right to continue to order the pill off the Internet. It was a decisive factor in the campaign and in the committee’s deliberations that the procuring of illegal abortion pills was a cause of concern. It was certainly one of the reasons people gave in many of the conversations I had the length and breadth of the country for deciding to vote for change. We need to be very careful; it would be highly irresponsible for me as Minister for Health to stand over a situation which could result in damage to a woman’s health or even pose a risk to her life and for me to say there was no offence for that. We are not having an offence for the woman but it would be highly unusual for there to be no offence at all. I would not in any other area allow for unregulated medication from unknown sources for another person to proceed unchecked. If a person ordered pain killers on the Internet for a friend who had a pain in their chest, rather than going to the doctor, I would be rightly criticised for not trying to stamp out the illegal use of that medication and not encouraging its safe, regulated use. God forbid, if something went wrong, people would be asking serious questions about the Oireachtas and the Minister of the day in terms of why they did not think they needed to regulate.
I realise that some people want to change the name of the Bill, but its Title currently contains the word regulation. We are regulating; we are saying in certain circumstances that it is legal, and we are also saying that in other circumstances it is not legal.
I understand that feelings run very high on this issue because there is a real chilling effect from the eighth amendment, from the Protection of Life During Pregnancy Act, and a sense that doctors and women will be fearful whether this will happen. We want to move beyond that - I do too - but a termination of pregnancy is a medical procedure, it involves medical treatment and it is best carried out by medical practitioners in a safe and regulated medical environment.
If I have said it once, I have said a million times, as have many others in this room, that this is about women and their doctors. Therefore the Bill must be about ensuring that the law is directing and supporting the provision of service in that direction. Yes, there are penalties in the Bill, and I know that there are concerns about some of the penalties. I am happy to hear the committee's view on that and, indeed, work with the committee on it between now and Report Stage because there is no font of all wisdom on this, nor am I claiming to be it, so I am happy to work with colleagues. However, it is worth pointing out that the specific sentence to be applied is a matter for the court. People tend to refer to the higher end of the spectrum, the phrase "up to" is also in the Bill, but it is essential to ensure that a potential penalty does reflect the seriousness of a crime. We could be talking about serious and violent attacks on women in some situations. I am not deliberately picking the most extreme situation, but we do need to ensure that what is on our Statute Book gets the balance right, that if there is a violent attack on a woman and her autonomy and well-being that it is a suitably high offence.
There are many examples, and in the interests of time I do not intend to go through them all now, of where a maximum penalty is in legislation but is very rarely applied. The maximum penalty in Ireland under section 14 of the Criminal Justice (Thefts and Frauds Offences) Act is life imprisonment for robbery but that does not mean that everybody who robs something ends up in prison for life, far from it. It is about trying to ensure that within our statutes, there is an ability if a woman is violently attacked to impose a hefty sentence. It is in no way about trying to penalise women, in fact it is the opposite, we are not criminalising women. It is about ensuring that when the Oireachtas provides for a service that is free, safe, legal and regulated, that is the service that we support and encourage and that we collectively try to end the use of services outside of that safe space, namely, the unregulated use of medication. I cannot think of another example as Minister for Health where I would, or the members would ask me to, turn a blind eye or ignore the use of unregulated medication, although I am not saying that is what anyone here is trying to do. I expect there will be a great deal to discuss on this matter between now and Report Stage but again, I am not the font of all wisdom and am happy to work with the committee to ensure that we get this right. I will try to move the offences to a more appropriate section of the Bill, which would be important. It is not as simple as I had thought but it is doable and I want to do it, and, in fact, we will do it. However, while I fully understand what Deputy Joan Collins is doing in proposing the deletion of the offence altogether and the motives behind that, there would be an unintended consequence that would leave some women vulnerable.
I thank the Minister. I will bring in Deputies Clare Daly, Ruth Coppinger and Bríd Smith in a moment. First I wish to clarify that we are discussing amendment No. 16. Amendments Nos. 17 and 18 are physical alternatives to amendment No. 16; amendment No. 18 is a physical alternative to No. 17; amendments Nos. 20 and 21 are physical alternatives to No. 19; amendment No. 21 is a physical alternative to No. 20; amendment No. 31 is a logical alternative to No. 24; amendments Nos. 26 to 28, inclusive, are physical alternatives to No. 25; and amendment No. 28 is a physical alternative to No. 27. We are discussing amendments Nos. 16 to 21, inclusive, and Nos. 24 to 31, inclusive, together.
The amendments all refer to offences.
The brief is changing as we proceed through the Bill.
I am sorry. What did the Chairman say after amendments Nos. 16 to 21, inclusive?
Amendments Nos. 24 to 31, inclusive. We will clarify things as we go along. I call on Deputy Clare Daly.
Maybe the Deputy will bring some clarification.
I will not because I am just catching up on the debate as I had to be elsewhere this morning. I was struck by a couple of things. Looking at the whole journey we made over the course of the eighth amendment committee hearings, one thing that was consistent throughout every session was the issue of criminalisation and the need to decriminalise. I listened carefully to the Minister's remarks. Every one of us is in favour of best medical practice. Nobody wants rogue operators, everyone wants things to be carried out properly. That is the same for abortion as a medical procedure as it is for every other medical practice. The committee recommended that all criminal sanctions that apply to women and girls should be lifted and that has been done, but the committee also recommended that doctors acting within the law within a clinical context should be decriminalised. I do not think that the way the legislation is drafted, in the absence of our amendment, actually achieves that. The Minister says that feelings are running high on this, but I am not sure they are. That is looking at it the wrong way around. We must look at this issue in the context of where we have come from and the chilling environment in which medical practitioners have traditionally operated. The concern is that this wording has taken the wording of the very restrictive Protection of Life During Pregnancy Act, maintained the sanction, albeit for medical practitioners, and it is completely unnecessary. What we are saying is that the delivery of abortion must certainly be regulated but it should be regulated in the same manner as other medical procedures. Therefore anybody who operates outside the law should be subject to normal criminal sanction, which they would be. If a doctor removes someone's leg against their will or incarcerates them against their will, that person is open to criminal proceedings, on the one hand, and also to medical disciplinary proceedings. Over the many months worth of deliberations that we had in the committee we said that this was a normal healthcare provision and that doctors should be enabled to carry out their medical judgment in a medical setting in the same environment that they would any other procedure. Particularly given where we have come from in this State let us be clear, and the likelihood of people trying to catch out doctors or make the legislation unworkable, something that is not in the interests of women or doctors, we do not need clauses in the legislation that would assist that happening. Full decriminalisation was a consistent theme at those committee hearings and anything less leaves us open to having the legislation undermined. It goes against the spirit of everything because consistently all the international and Irish studies show that in order to be compliant with international human rights, we should go for full decriminalisation. The amendment is necessary in that regard. By not accepting this amendment, we leave ourselves open to health providers being dissuaded from providing the best care to their patients than they otherwise would because they have this sitting on their backs. It is probably the key part of this committee's discussion in coming days. I strongly support the amendment and will press it.
I support the amendment. We have also put down amendments opposing sections 5 and 6. What is the purpose of criminalising abortion? Presumably, it is to prevent people from carrying out dangerous abortions or charging people vast sums, which would be an incentive to work outside this Act. However, what is being proposed is free and universal access so the danger of that happening is not likely. There are two reasons this is wrong. Its chilling effect on doctors has been noted, but while the Minister does not intend to punish women or pregnant people themselves, he will also punish somebody who helps somebody have an abortion outside of the Act. Let us consider what that might mean in practice. Take a person whose doctor tells them they have gone past the 12 week period - we will not get into how they estimate the 12 week period, because that might not be 12 weeks gestation - that person is faced with going abroad or accessing abortion pills from safe websites such as Women On Web that is currently used.
If at 13 weeks someone helps a friend, sister or daughter to have an abortion using medical abortion pills from the Women on Web site, which is an internationally recognised group of which there are also others, that person could be criminalised. It has happened in Northern Ireland where a mother was prosecuted for helping her own daughter. This is not preposterous. It would actually be safe to have an abortion at 13 weeks using a medical abortion pill which can be used up to 14 weeks. However, this would criminalise someone for doing that. The British Medical Association has just voted, I think for the first time, to decriminalise abortion in Britain where it remains a criminal offence outside the regulations. Doctors have also made that call in approximately 44 other countries. People are citing the great levels of support they have, but polls show that the majority of people do not think it should be a criminal offence. I echo that on the committee, this was not just about criminalising the person, it was about decriminalisation. I agree completely that it should be an offence dealt with under medical regulations. It can be done that way. However, criminalising doctors, potentially, will definitely put some people's health at risk where there is uncertainty about serious harm. There will be other cases that might be very dodgy too.
The chill factor of the 14 years jumps off the page. It looms darkly over all of this. We favour removing the entire section on offences. It may well have a great deal to do with how we define the legislation. That is why we feel the Title is important with the reference to the regulation of women's health. Let us say that we were regulating men's health, would we have to insert that it would be illegal and subject to 14 years imprisonment to force a man to have a vasectomy, which relates to his reproductive health? One would not as that is already governed by legislation covering offences against the person, including grievous bodily harm and others. Likewise, there is other legislation to cover the case where a woman is forced against her will by a nasty lunatic or dangerous person to have an abortion. That legislation already deals with violence against the person and includes hefty sentences. We are trying here to regulate for abortion, whether the Minister agrees to call a spade a spade. As such, this should not be included as it provides for an offence of carrying out a procedure where that offence is already covered by other legislation dealing with violent acts against individuals. I refer the Minister to the last debate and Deputy Nolan's amendment on making people pay for the services. The Minister said himself that forcing women to pay for the pill meant making them go to the Internet. Quite correctly, he opposed that. If we can create a legislative framework around the regulation of women's health and the provision of full, free, safe and legal access to abortion, the need to go online will not need to be covered by the section. We would like to see it removed entirely.
I reiterate the point that no woman should be criminalised with regard to abortion. It is important to remember that most abortions are related to socio-economic issues and we should focus on resolving those issues. It was stated that abortion was safe, but the Bill itself states that abortion is the ending of a life. Safety and the ending of a life do not equal each other. This is one of the most radical amendments for which one could provide because it will, by default, allow for abortion by failing to disincentivise it in a whole range of other circumstances. Part of the argument before the referendum was that if one takes the right to life out of the Constitution, the issue becomes fluid with regard to where it ends up. This amendment is confirmation of that.
I have proposed a number of amendments to the section, the first of which seeks to put women at the heart of the legislation to ensure the choices they make are central to it. The use of language like "to intentionally end the life of a foetus" rather than to say "terminate a pregnancy" or, indeed, to use the word "abortion", which we seldom see or hear in this debate we have about abortion, represents a failure to confront language and deal with it. The eighth amendment is the protection of life legislation being perpetuated all over again. I am hopeful the amendments I suggest will be accepted.
My second amendment on the section focuses on offences. I have tried to ensure that medical practitioners as well as those acting with the explicit permission of the pregnant person are excluded from all offences. We need to assure medical professionals that if they act in good faith, there will be no sanction which inhibits them in their work. If we fail explicitly to protect doctors, the chilling effect, about which we heard at length, not just at the committee on the eighth amendment but in the Citizens' Assembly and in the course of the referendum debate, will continue.
Amendment No. 26 seeks to ensure that where a pregnant person explicitly requests someone to help obtain abortion pills from the Internet or another source, that person will not be guilty of an offence. We have seen the situation in the North, which was referred to earlier, where a woman was helped by her mother and now everyone involved is under investigation. That is not what we want to see as part of this legislation. We must remove the reference to a sentence of 14 years. This is an echo of the eighth amendment and the protection of life during pregnancy legislation which we all want to see gone. It is important to protect doctors by removing the chilling effect and to ensure that where a doctor acts in good faith, he or she is immune from criminal sanction.
My personal view is in direct conflict with my view of what the people have voted for on this. Personally, I oppose strongly the section, which feels completely over the top. It has a chilling effect, as we know. Points have been made around no such penalty of 14 years ever having been suggested for men's reproductive health and, indeed, medical malpractice and so on is already covered in other legislation. On a personal level, to frame legislation which carries a 14 year sentence is wrong. However, what is in the legislation is almost word for word what is in the heads of the Bill. If a mistake was made, it was to bring such punitive sanctions into the heads of the Bill, including that 14 year sentence. However, it was brought in and it was in the heads of the Bill. The Minister and I knocked on many doors in Wicklow. My experience of talking to voters was that a material number who intended to vote "Yes" were doing so in the clear knowledge that this section existed. An example which will be discussed later is the whole idea of disability and other matters not being permitted as grounds for termination of pregnancy. As explained, disability is not allowable, including intellectual and physical disability and other syndromes.
The reason that is not allowable is because of these sections. On a democratic imperative, it is absolutely clear to me that a reasonable number of "Yes" voters were voting with a clear understanding that this would be in the legislation. The provision is pretty much transcribed word for word from the heads of the Bill. I wish it had not been in the heads of the Bill. I do not agree with it personally but in my opinion I am following a principle that basically says that if it is in the heads of the Bill, whether I agree with it or not, it is in the legislation. For that reason I will not be supporting the deletion of the subsections we are talking about.
We are discussing a grouping of amendments, amendments Nos. 16 to 21, inclusive. Amendments Nos. 17 and 20 are in my name. Chairman, do I discuss these now?
We are discussing amendments Nos. 16 to 21, inclusive, and amendments Nos. 24 to 31, inclusive.
My amendments Nos. 17 and 20 follow on from the initial discussion on the definition of termination of pregnancy and the consequences of using certain language. Then Deputy Tóibín spoke and the gist of what he said - and I ask him to correct me if I am misrepresenting what he said - is that it states in the Bill that the termination of pregnancy is ending the life of a foetus. Some people are using that definition today, with which many of us had an issue at the outset, to support this. This is the consequence of that definition.
If we come to an agreement between now and Report Stage on the definition that will reflect the wording I propose in amendments Nos. 17 and 20, that will change the definition.
Regarding the front-loading of the offences, I proposed that in my amendments but I was informed by the Bills Office that it cannot come from a committee member, that the reordering of a Bill has to be done by the Minister and the Bills Office. I think the Bill will be legislation that will be referred to and picked up and if it is humanly possible to reorder it, I would like it reordered.
There is also a chronological issue in that we should be moving through the gestation period of pregnancy as opposed to hopping from fatal foetal back to early pregnancy as I think there is a natural progression through pregnancy.
I agree with Deputy Donnelly because he made clear the connection between what was in the heads of the Bill before the referendum and what we are doing now. Again many raised the issues of what could happen. Deputy Coppinger, who has left the room, referred to abortion pills which are safe up to 14 weeks. Yes, they are licensed for use up to 14 weeks, but between ten and 14 weeks, to the best of my knowledge, their use must be under the supervision of a doctor. One could have a very complicated situation if, for example, a mother ordered abortion pills for her 14 year old child who is pregnant with twins. Were she to give them at 16 weeks, we would have a very dangerous situation. I would not like to have any involvement in a situation where that 14 year old girl would bleed out for whatever reason. This all goes back to our discussion on access, cost and barriers because these are the issues that would cause people difficulties.
I will not be supporting amendment No. 16 because we had said what we were going to do before the referendum. I believe there are difficulties and very dangerous consequences if the provision in section 5(1) is not included.
We have to be very conscious of the arguments that are used and how it relates back to that element of life in the definition at the outset.
This has been a useful debate. I am looking at the report of the Joint Committee on the Eighth Amendment of the Constitution, which called on the Minister to amend the law. It states:
The Committee recommends that the law be amended to provide that
(a) surgical terminations may only be legally carried out in a hospital setting [which we have done and]
(b) medical terminations may only be provided for through the licencing of medications for that purpose and prescribed by a qualified practitioner acting in good faith.
We have done that. It also states "The Committee further recommends that where terminations occur in such circumstances ... no criminal sanctions should apply." That is the case and there is no criminal sanction to a doctor operating in those circumstances, in good faith. I believe we are in agreement that in all cases "where a woman procures or seeks to procure an abortion for herself, the law should provide that, regardless of circumstances, she is not guilty of an offence". I believe those four tests that were outlined by the all-party committee have been met in the legislation.
Deputy Donnelly rightly pointed out, and I agree with this point, regardless of our personal opinions, that we had to put forward a general scheme of a Bill that we believed encapsulated the greatest majority. We cannot all be looking into our hearts, guessing what the people of Ireland thought and perhaps getting some calls right and some calls not right, but this was the legislation that we largely put before the people, when we published the general scheme in March and the updated scheme in July after the referendum and when we published the Bill in September.
I think Deputy O'Connell is right to point out, particularly with her professional background, that there are risks. I refer to her phrase, "dangerous consequences", to operating outside of the legal framework and that is something that none of us can stand over. There is a reason that we have set out matters and the reason is not just a moral or policy one. There are reasons that outside the periods set out in the Bill, in certain circumstances it could be dangerous and we cannot stand over that.
We have come a long way. All sanctions for women and girls have been removed. There is no sanction for a doctor operating within the law. We have purposely tried to word the law in such a way that it is not Members or the Minister for Health deciding what is the appropriate call for the doctor. In some cases, it is the decision of one doctor, in other cases it is the decision of two doctors in their reasonable opinion, formed in good faith. This language is empowering the doctor, to try to remove the chilling effect in order that the doctor does not have to dust down a copy of Bunreacht na hÉireann or the legislation or ask him or herself what do the politicians want him or her to do in the circumstances. There are parameters in place that trust a doctor's clinical judgment and give a doctor's clinical judgment the protection of a decision based on their reasonable opinion and in good faith, which I think is important.
Let us also remember that this is not just about medical practitioners. Deputy Clare Daly raised the issue of someone removing one's leg illegally but we do not have a law about the removal of legs. We do, however, have a law about the regulation of termination of pregnancy and when one is putting in place a law, one is obligated to put into law what is legal and what is not. What I do not wish to do - the Oireachtas can do what it wishes - is deviate substantially from what we promised the people we would do. Again one can argue whether that was right or wrong but we said to the people we will allow abortion to be legal, regulated and safe in these very specific circumstances. I also said many times, as did many members, that outside of these circumstances it will continue to be illegal. Deputy Donnelly gave a very honest appraisal of the situation. Many people voted "Yes" in the knowledge that was the case, knowing the grounds on which they could vote "Yes" and supporting abortion happening, but in the knowledge that disability is not a ground and with limits beyond a certain period or beyond viability. There need to be a legal and an illegal piece to this debate or otherwise we have gone significantly beyond what the aforementioned committee and its cross-party members committed to doing.
There is also another point. The foetus has protection outside of these circumstances. Abortion in Ireland will be legal under these heads and in these circumstances but there will be protection for the foetus outside of those circumstances and if one removes section 5, there will be nowhere on the Statute Book where there is protection for the foetus. I genuinely do not think the Irish people voted for that. They voted for a very broad range of parameters, whereby termination would be allowed, but they did not vote for termination in every single circumstance and they did not vote for termination not to be regulated and they not vote for there not to be a legality and an illegality in respect of these situations.
The people and the Government support the idea that the woman or girl should never be criminalised.
I am glad that Deputy O'Connell also made the point that the language in the Bill must be consistent. It cannot be that the Bill states in one section "end the pregnancy", in another "end the life of the foetus" and in another uses the word "abortion". If we do that, we will do a significant disservice to doctors and women because there will not be legal consistency. Deputy O'Connell asked whether that definition would apply if it had been changed earlier. The short answer is "Yes" because there must be consistency in the wording in all parts of the Bill. The harder question is whether we can come up with a formula of words that meets the needs of the medical community in operating the Act with legal consistency, but that is our job between now and Report Stage.
I have no doubt we will do our best. I am happy to engage with and meet Deputies and to make officials available as we prepare for Report Stage and try to improve this section. There is a sense from the contributions that we can improve the section. What I do not intend to do, however, is deviate from the fundamental grounds on which abortion is legal in Ireland to a new set of grounds on which the people did not vote. I know they did not vote on the wording but they voted with knowledge of the general scheme. I am endeavouring to get that balance right but also to ensure we make provisions to protect women in circumstances where there may be forced abortions and where women may be intimidated or forced into having illegal terminations of pregnancy in much more dangerous circumstances. There could be a situation, for example, of domestic or sexual abuse where a vulnerable woman or young person could be coerced into agreeing an illegal termination of pregnancy without any medical assistance, perhaps for sinister reasons. There is a need to protect women from these difficult situations. I am happy to engage with people on whether we have got the balance right but this is how I am approaching the matter.
I fully accept the bona fides of the Minister when he says the Department has attempted to remove the chilling effect in balancing this legislation. It has not achieved that objective, however, and I do not agree that the committee's suggestions were adhered to. I accept the Minister's point about the legislation giving a protection to medical practitioners or providers who operate in good faith within the law and who have a reasonable opinion, but that is just a defence. It still leaves them open to the possibility of a malicious prosecution, for example, or an allegation against them by people who want to be devious with this legislation.
Abortion should be fully decriminalised because there is ample medical regulation and other legislation in place to deal with people who break the law. The Minister said that people did not vote for abortion in all circumstances, which is fully accepted. The amendment we are putting forward does not alter that situation, nor does it say that abortion should not be regulated. Rather, it says there should not be a specified criminal sanction in the legislation. It does not throw out all the other stuff.
I take issue with the points made by Deputy Donnelly, who said the criminalisation factor is included in order that terminations will not be carried out on the grounds of disability. That is not the case and the law does not provide for terminations on the grounds of disability. We are talking about a criminal sanction for breach of the law, where someone who breaks the law is still open to sanction. In the circumstances the Minister outlined, such as a forced or coerced abortion, without the specific criminalisation provision in the legislation the medical practitioner involved would still be open to prosecution for a criminal offence such as assault causing serious harm or whatever, not to mention being open to severe disciplinary proceedings and possibly being disbarred from being a medical practitioner because he or she carried out a medical procedure against the law. A specific criminal sanction is not needed, therefore. Perhaps the voters in Wicklow are highly astute and have read every document.
They have good judgment and make good decisions anyway.
I am not being smart about it. I am quite sure many of the voters in my constituency are incredibly sophisticated but I can guarantee I did not meet one person who said he or she was voting for the heads of the Bill because it provides for a 14 year criminal sanction. It is just not true. All the evidence from the studies carried out suggests that even people who strongly object to abortion, and who believe they themselves would never have one, do not believe a woman or any medical practitioner acting in good faith should be penalised. That is not an opinion that is common only in Ireland but abroad also.
The problem with the wording "good faith" is that it might be a defence but it leaves the practitioner open to prosecution. Given the background to this issue, there will be a slight barrier to access, and we all believe access is extremely important. A criminal sanction is not needed to protect the foetus. The foetus has rights, which grow as the gestational period progresses. After the 12 weeks, the foetus has considerable protection. A criminal sanction does not need to be specified for the foetus to have that protection and nor are the words "ending the life of the foetus" required to provide that protection. I strongly agree that Deputy O'Connell's wording is preferable. I am not saying that the Government has not tried to strike a balance but it has erred too far in the other direction.
The Irish Family Planning Association, IFPA, made good points in its observations that the only basis for having a specific criminal sanction is if there is a demonstrable public interest therein which would identify potential harm done to women that cannot be dealt with in the normal medical regulation and criminal justice system. There is enough protection in the criminal justice system and medical regulation to do what we want to do without giving doctors, nurses or whomever at a later date that extra headache. In fairness, the IFPA made the point well that if the Government believes there is something that causes potential harm to women, it should be listed as a potential offence and dealt with rather than being left vague in this context.
While I recognise what the Minister says, he has not achieved the balance of what the Oireachtas committee recommended. We were not referring to protection from a potential legal action but rather to the international community's recommendation of full decriminalisation. It is necessary, especially when one considers our history on this issue. I do not mean to be derogatory but some of the points made by Deputies are not really relevant to whether there is a criminal sanction in this section.
I suggest we work together on this section between now and Report Stage. There was a discussion earlier about the definition of "ending the life of a foetus", and the committee received medical correspondence today from 24 members of the Institute of Obstetricians and Gynaecologists, which has drawn up the clinical guidelines, to say that changing the wording would provide them with less clarity. I have committed to engaging with the institute before Report Stage, but at the moment the medical and legal advice I have received is that this is the language that provides the best clarity, not only for lawyers but also doctors. We will relocate the offences section, which I know has not been the substance of this conversation but which was an important part of the Second Stage debate. I will make available to the committee my officials and legal advisers to see if we can further explore the issue of offences before Report Stage. It is a delicate balance and we need to try to get it right.
We have discussed amendments Nos. 16 to 21, inclusive, and Nos. 24 to 31, inclusive. On amendment No. 16, the question is that the amendment be made.
If the Minister says we will genuinely discuss the issue, is there a point in pressing the amendment now? I am open to pressing it but I am not a member of the committee.
I will genuinely discuss the issue with the Deputy. Whether we can resolve it is a matter that we will see during the discussion. I am happy to engage between now and Report Stage, and there is obviously an opportunity to resubmit on Report Stage.
Is the Deputy withdrawing the amendment?
I am trying to be helpful to see if we can get a better situation and in the knowledge that if we put the amendment to a vote, it will not change what is in the legislation. I hope we can have a genuine discussion on the issue before Report Stage and, on that basis, I will withdraw the amendment for now, reserving the right to resubmit it.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 6, lines 31 and 32, to delete “end the life of a foetus” and substitute “end a pregnancy”.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 6, lines 31 and 32, to delete “end the life of a foetus” and substitute “terminate a pregnancy”.
Amendment, by leave, withdrawn.
Amendment No. 19 is in the name Deputy Catherine Martin who is not present.
Amendment No. 19 not moved.
I move amendment No. 20:
In page 6, line 35, to delete “end the life of a foetus” and substitute “end a pregnancy”.
Amendment, by leave, withdrawn.
I move amendment No. 21
In page 6, line 35, to delete “end the life of a foetus” and substitute “terminate a pregnancy”.
Amendment, by leave, withdrawn.
Amendments Nos. 22 and 23 are in the name of Deputy Catherine Murphy who is not present.
Amendments Nos. 22 and 23 not moved.
I move amendment No. 24:
In page 7, between lines 2 and 3, to insert the following:
“(4) Subsections (1) and (2) shall not apply to a medical practitioner referred to in sections 10, 11, 12, and 13, who act with their reasonable opinion formed in good faith that the termination of pregnancy carried out is carried out in accordance with the law.”.
I am happy to withdraw the amendment on the basis of commitments given by the Minister.
Amendment, by leave, withdrawn.
Amendment No. 25 is in the names of Deputies Catherine Murphy and Catherine Martin who are not present.
Amendment No. 25 not moved.
I move amendment No. 26:
In page 7, line 3, to delete “It” and substitute “Save in the case where a person is acting with explicit instruction from the pregnant woman, it”.
I am happy to withdraw the amendment but we need to be cognisant of the legal action taking place in the North and to be informed by that. That must inform our discussions going forward but on the basis of commitments given, I happy to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 7, lines 3 to 5, to delete all words from and including “for” in line 3 down to and including “Act” in line 5 and substitute the following:
“to assist or coerce a pregnant woman to intentionally end, or attempt to end, a pregnancy otherwise than in accordance with the provisions of this Act”.
I would like to speak to the amendment, if I may.
I thought clarification was given that we were discussing amendments Nos. 16 to 21, inclusive, together.
We discussed amendments Nos. 24 to 31, inclusive, together.
Is there any provision to briefly discuss my amendment? My lack of experience has caught me out. I asked to speak specifically because I was confused. I will only take a second.
It is confusing so we will give the Deputy the benefit of the doubt.
I thank the Chair. We are back to the wording and the previous discussion. I am concerned about the use of the words "aid, abet, counsel or procure" in section 5(4). The use of the words "aid" and "abet" is alarming. I may be incorrect but my interpretation is that someone who counsels a pregnant woman and recommends a termination in a conversation could be given a 14 year jail sentence for trying to get somebody to have an abortion, even when the woman does not take that advice and a termination does not take place. I would like to have that clarified.
We are back to the language of criminalising and negativity, which is to approach the issue from the wrong angle. The use of the term "procure a pregnant woman" is not ideal. We need to work on the language to ensure it is fit for purpose. I have an issue with terms such as aiding and abetting and counselling and the 14 year sentence provided. We do not want women to be terrorised into silence. We want this to be about access and women. I am uncomfortable with the language used here and if we got rid of it, as per my amendment, the section would be more palatable.
I take the points Deputy O'Connell has made and I will be happy to consider them further before Report Stage. We are bringing in a range of heads that provide opportunities for women to safely, legally and freely access abortion services up to 12 weeks without specific indication. I will make a point that may not be for the debate on the Bill but is part of discussions taking place in other rooms in respect of clinical guidelines, public communications to women about services and where to access them, the 24-7 helpline and so on. As a country, we should be able to move into an era in which, far from women being silenced as the Deputy alluded to, it will be a normal part of the public health service to have accessible information on abortion from medical professionals, not just in the hospital or community setting but also on a 24-7 helpline.
I very much get what the Deputy is trying to do here. The language, which is based on legal advice, is endeavouring to ensure that we provide protection in cases of forced abortion or intimidation of a woman, where somebody is encouraged to use an illegal service rather than the legal and safe service. I take the point about the language and I am committed to working with the Deputy to see if we can make progress.
I thank the Minister, and the Chairman for facilitating me.
Amendment, by leave, withdrawn.
I move amendment No. 28:
In page 7, line 4, to delete “end, or attempt to end, the life of the foetus” and substitute “terminate, or attempt to terminate the pregnancy”.
We have had a fair amount of discussion on this. The Minister is more than acutely aware that some Deputies have difficulty with the language used in the section. On the basis of commitments given with regard to discussions, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 29:
In page 7, line 7, to delete “for a term not exceeding 14 years” and substitute “for a term proportionate to the scale of the offence”.
Amendment, by leave, withdrawn.
Amendments Nos. 30 and 31 are in the name of Deputy Catherine Murphy who is not present.
Amendments Nos. 30 and 31 not moved.
Question proposed: "That section 5 stand part of the Bill."
I note the section is being opposed by Deputies Wallace, Clare Daly, Joan Collins, Bríd Smith, Gino Kenny, Boyd Barrett, Coppinger, Paul Murphy and Barry. Does Deputy Smith wish to speak on the section?
As I stated, we want the whole section deleted.
Question put and declared carried.
Question proposed: "That section 6 stand part of the Bill."
I note that Deputies Bríd Smith, Gino Kenny, Boyd Barrett, Coppinger, Paul Murphy and Barry are opposed to this section.
Question put and declared carried.
Sections 7 and 8 agreed to.
Sitting suspended at 4.10 p.m. and resumed at 4.40 p.m.
Prior to the suspension, we completed section 8.
I move amendment No. 32:
In page 8, between lines 7 and 8, to insert the following:
"Review of operation of Act
9. The Minister shall, not later than 5 years after the commencement of this section, carry out a review of the operation of this Act.".
This is a sensible amendment to insert a review clause in the legislation. We have already had a number of discussions today on a number of issues, including the future-proofing of legislation, medical developments and best international practice. It seems to me it would be wholly irresponsible for us as legislators to pass legislation on such an important issue to do with women's health and not keep it under review on the basis that our job is done. It is good practice to keep legislation under review. It is not uncommon. The Data Protection Act of this year, for example, makes provision for a review to be carried out, as do the Gender Recognition Act, the Charities Act and the Disability Act. Review clauses are also commonly included in European legislation. The European Parliament is strongly committed to the concept of better law-making. In this regard, it talks about the better law-making template, particularly the effective use of ex post evaluation throughout the legislative cycle. Although provision for a review clause was not included in the original legislation, I am conscious that several members of this committee and the Oireachtas have proposals in this regard. I hope there will be significant agreement that the inclusion of a review clause in the Bill would facilitate monitoring, including monitoring of the impact, operation and effectiveness of the legislation, in addition to monitoring of the delivery of services. I propose to amend Part 1 one of the Bill to provide that the Minister shall, not later than five years after the commencement of the Act, carry out a review of its operation.
A number of members have other amendments to different sections, with references to a shorter period. I ask that the committee consider passing this amendment but I am open to amending the time period on Report Stage. To be very honest, I feel two years is probably too short. I see references to two years. It is too short simply because we are going to put new services in place in 2019 that need to bed down. There are already many monitor and review notifications. One could nearly be reviewing the legislation without all the information. Perhaps one could argue five years is a little too long. I am not wholly set on it but I have pitched the period at five years for the moment. I ask the committee members to enable me to insert this review clause in the legislation. I would be happy on Report Stage to engage in a discussion on the appropriate period for the review. As I said, this arrangement is included in many Acts. It would be a mistake not to include it. It would also enable us, as legislators, to ensure that a number of the issues members raised today can be monitored. It would allow us to address issues or challenges that arise in the review period. I commend the amendment to the committee.
It does not happen very often but I actually agree with the Minister on this. Put a mark on the wall.
That and Bantry hospital.
Bantry hospital also, so we agree on two points. It is imperative that a review be carried out, for all sorts of reasons. The Minister in power will carry out the review in five years. If it is the current Minister - it might be myself-----
What form would the review take and how would it be carried out? If things were seen not to be working, how would they be rectified?
I very much believe we need to be able to review this legislation. Five years, however, is a little bit on the long finger. I believe Deputy Daly has an amendment in this regard.
Perhaps, therefore, we could reach a compromise between the two periods, sincerely hoping that the current Minister will be following through. I very much support the amendment but I would like to see the period shortened somewhat, recognising, however, that we need time to realise what deficiencies exist, what we can improve and the unintended consequences that might emerge.
I support the idea of a review but I do not support the view that we should wait five years for it. It should be conducted either in line with the views of or in conjunction with the members of the health committee at the time, whoever they may be. The Minister has acknowledged that five years might be little long. There is a proposal for two years. We could settle on two and a half years.
If we were to settle on three, however, we would have to start the collection of data and have the work under way so the actual review would take place at that stage, and not talk about the parameters for a review. There is a bit of scope in this regard but there should most definitely be a review. It has to be based on the collection of data, and the data collected have to be more meaningful than those currently collected. They have to give us proper evidence as to where issues arise, if they exist. It must be determined whether they affect a particular demographic. That information has to be available to us.
I support the concept of the amendment. A debate will occur on whether the period should be five years, four years or three years. The period needs to be sufficiently long to allow for the evaluation of the efficacy of the legislation or its lack thereof. It should be short enough to allow us to react in time without letting too much happen that should not happen. It would also give an opportunity to the Minister, Department and Opposition to monitor what has happened over a reasonable period. There is not much sense in monitoring something over six months; one is hardly likely to get a worthwhile result at that stage.
It is important not to paint ourselves into a corner by specifying two years, three years, four years or five years; rather, it is a matter of evaluating how the legislation is working and determining what issues have arisen in the time involved. If it should transpire that, sooner than five years, four years or otherwise, something obvious needs to be done in regard to the legislation, the amendment would give an opportunity to all involved in this regard.
I have an amendment further down the list that seeks to augment the level of data collected in the whole process in the same fashion as in Britain. In Britain, far more information is collected than is proposed in this Bill. I agree with Deputy O'Reilly in that the more data and information that exist, the easier the policy development in the future. It will result in better insight into how exactly the legislation is working. There is a weakness, however, in having a review without the necessary data. Britain has had a good record on the collection of data. It is neither a pro-choice amendment nor a pro-life amendment; it is just a collection-of-data amendment. That would be more useful.
I support the review. Five years is too long. I would prefer to see a period of two to three years. I agree with Deputy Tóibín that the more information we have, the better.
I agree with the idea of a report. The standard period is five years for most legislation. The question is whether this Bill is different and whether there is greater urgency to see how this goes. I certainly believe there is. This is highly sensitive legislation. There are very serious concerns raised by doctors, the institutes and all sorts of people. It is not about being more liberal or conservative; this is a particularly sensitive issue. Therefore, I am happy to support the amendment now but I would like the Minister to let us know whether he will resubmit it on Report Stage and perhaps reduce the period to two or three years. With this legislation, five years is too long to wait.
There are a couple of things to say. Firstly, I welcome the fact that, even from a wide range of perspectives on the substantive issue, Deputies see the benefit of having a review clause. I believe that is the responsible thing to do and it is what the women and doctors of this country deserve.
I should have stated the obvious at the outset. Of course legislation can be reviewed at any time. It is not the position that the legislation cannot be reviewed for five years. Any Member can bring forward any legislation or motion at any time. Moreover, the Minister of the day can make decisions at any time. This is the constitutional authority we now have through the decision made by the people. The difference is that we are including the word "shall". It will not be discretionary for the Minister of the day or ultimately for the Oireachtas. The review will be a legal requirement on the Minister of the day.
One of the Deputies correctly asked how it would work. That is an important question. It is about data - I agree with that - but it is about more than data. It will also be about talking to people who have been providing services, including those consulting and visiting the front line. It will be a comprehensive evaluation of the law, data and operations as well as how it is all operating and whether it is operating satisfactorily. It will be external and independent. It will not be an in-house job, if I may call it that. We would commission someone external and independent to carry out detailed research, which would then be published.
I welcome Deputy O'Reilly's suggestion that the Joint Committee on Health should be involved. That seems sensible. I appeal to Deputies to pass this amendment now but, operating on the basis of the collective wisdom of this committee, I will amend it on Report Stage to insert "3 years" rather than "5 years". I will give that commitment to Deputies today, but I would still like to put in the review clause on Committee Stage. I will reduce the timeframe from five years to three years on Report Stage in the Dáil.
Is that from the point of enactment? When does the three year period kick in?
It kicks in from the point of enactment.
I had requested that the collection of data would start in advance of that period so that we are ready to review the actual operation. If we commence the job of collecting the data in three years' time, then it could actually be four years or possible five years. The collection of necessary data would start one year before that, if required.
I do not wish to be overly prescriptive in the legislation but I think that is-----
I am simply saying that it is better not to wait three years before we start collecting data and analysing it.
No, let us put that on the record of the committee. That is the intention. Already there are several clauses in the legislation that will produce yearly reports, collection of data and notifications to the Minister. There will be a regular flow of information coming to the Department of Health. I or my successors will make available that information to the Oireachtas and the Joint Committee on Health.
This is more about the structured review that shall take place. It is not at the discretion of any Minister - it must take place. Let us consider best international experience. I remember during the referendum debate - we are not going to reopen that debate now - many people were suggesting that we look to the UK. Many people against the proposal kept referencing the UK. I and others kept saying that the UK was not a good example because the UK has old legislation that has not been reviewed in years. Other places were doing it better from a woman-centred point of view and from a doctor's point of view. The point is to ensure we do not fall into that trap. We can ensure we continue to have legislation that is operational so that if our doctors have views on how to make things better, then they have an opportunity to put forward those views. It is a little like what they have said today in writing to the health committee. It is not simply a review of the legislation. It is specifically a review of the operation of the Act. It is not a review of the fundamental principles of the legislation. It is really about how the Act is being operated beyond Leinster House.
Amendment agreed to.
Amendment No. 33 is in the name of Deputy Catherine Murphy. She is not here so that falls.
Amendment No. 33 not moved.
There is a suggestion that we discuss amendments Nos. 34 and 35 together.
I wish to make a procedural point. The next two or three groupings are really important. They are going to speak to much of the subsequent sections, including sections 9 to 13, inclusive. My sense is that they are over-grouped. The Minister has shared his sub-groupings. I have gone through them all and they actually make perfect sense. For example, under the fourth group amendments Nos. 34 to 40, inclusive, are all to be discussed together. Under the groupings the Minister has shared, three different things are going on. One class concerns the definition of "health", to which amendments Nos. 34 and 35 relate. Another class concerns the period of 28 days, which is the subject of amendment No. 36. This is linked to amendment No. 70, which I have tabled. Amendments Nos. 37 to 40, inclusive, relate to viability.
It is a decision for the committee but we should avoid confusion. These are separate issues. Would it make sense to discuss the amendments relating to the definition of "health" first? We could follow that by discussing those relating to the period of 28 days and follow that, in turn, by discussing those relating to viability, as per the groupings.
I think that is appropriate.
It is not in these groupings. We were provided with a second set of groupings. These were not the committee groupings. They have simply been shared with us. The idea is to go with that.
I move amendment No. 34:
In page 8, line 17, to delete “means physical or mental health” and substitute the following:
“means a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.
This is important and I hope it is something we could agree on. The definition we are including for "health" includes the definition according to the World Health Organization 2012 safe abortion guidance. The WHO makes it clear that policy should aim to promote and protect the overall health of women. The amendment is in line with that definition. The idea is that health includes complete physical, mental and social well-being and not merely the absence of disease or infirmity.
This is something we discussed during the all-party committee proceedings. If we were to put that wording into the legislation, then it would be a clear signal that we are moving away from a criminal law situation to a health-focused and women-centred approach. It would go a long way to removing the chilling stuff. I believe it would be a positive and well-backed proposal.
I thank Deputy Daly. The definition of "health", as the Deputy has correctly said, means physical or mental health. One of the things we were trying to do in defining health was to be absolutely clear that, contrary to what we heard from some during the referendum campaign, mental health is health and mental health is equally important to physical health. The reason we defined health was for the avoidance of doubt. We were keen to ensure that it did not refer only to physical health given some of the worrying commentary we heard about mental health for many years in these Houses and elsewhere.
The definition in the proposed amendment, as Deputy Daly rightly said, refers to complete physical, mental and social well-being and not merely the absence of disease and infirmity. I take the point that this corresponds to the World Health Organization definition. However, I have a concern that the concept of social well-being is too nebulous for the purposes of the legislation. Again, let us go back to the conversations members had at the all-party committee. The committee sought to ensure that termination was available where there was risk of serious harm to the health or to the life of the woman. That committee wanted to be absolutely certain that the definition included mental health. That committee also made a decision to exclude - I do not have the exact wording from the committee report before me - socioeconomic grounds and so on. My concern is that while the definition is well-intentioned - it is absolutely the World Health Organization definition - it is broader than what the Oireachtas committee charged me with doing in terms of defining health as physical health and mental health but not extending to social well-being. The committee used certain wording in the report.
The term was "socioeconomic well-being".
I was advised from a legal point of view that this could be too nebulous for the purposes of the legislation and could inadvertently broaden the grounds. That is the reason I am not in a position to accept it.
I reject the Minister's argument because they are separate. This is a section dealing with the definition of health. The other proposal was, unfortunately, rejected by the committee. It related to the grounds on which one could argue for a termination. They are separate and it is not right to conflate the two. This is simply dealing with the definition. I did not agree with the outcome but to use the outcome of that vote is unfair and it conflates two quite separate things.
To clarify, we are discussing amendments Nos. 34 and 35 together. They are physical alternatives to each other.
This amends the definition of a woman's health to include her social well-being, but it is not defined in law and would seem to allow abortion after 12 weeks on virtually unlimited social grounds.
I agree with the Minister. We debated this matter at considerable length during the all-party committee's hearings and it has been a particularly moot point in discussions on the issue in recent years. We were accused of being frivolous in some ways in allowing abortions to take place where they were not necessary.
We need to keep two points in mind. First, a pregnant woman may suffer from a mental condition that leads to a serious impact on her health and well-being. Second, she may suffer from a medical condition that is likely to have the same impact. Both cases need to be borne in mind and we must try to cater for the eventualities. For example, there are certain conditions that, while seemingly harmless initially, are not harmless if they are ignored. It is important that they not be ignored.
The committee removed the question of socio-economic grounds as a basis for abortion. That was the right thing to do. It was in response to comparisons being made with jurisdictions where there was such ready access that people made the point - I am not referring to committee members, but to people throughout the country - that going a bridge too far might not necessarily be in the best interests of the proposed legislation that would arise as a result of the referendum or of its potential for success.
Even to this day, there are people who dismiss mental health as a basis for concern, but that is not true. It has been proven to be a basis. Similarly, there are people who strongly contend that a medical condition, including a pre-existing one, is not really a matter for concern and will be dealt with in the normal course of events. That is not true either. There have been several instances of women's pre-existing conditions accelerating at a particular stage of their pregnancies. This puts the lives of those women, including some who already have children, in danger. It was felt at the time that we needed to recognise the threat to the woman's life in such circumstances and make strong provision for it in a way that did not take a simple - this is a long phraseology - or frivolous "Will I or won't I" approach. That would never be the case. All of the evidence presented to us during the course of those hearings indicated that the women concerned, including those who had had an abortion, had not been frivolous about it. Some research suggests that abortions were done on different grounds, but they were able to put forward at the hearings the strong view that they did not choose a termination lightly. They thought about it and had considerable qualms of conscience about it. It was at that stage that we concentrated to a significant extent on the degree to which supportive counselling would be available. That still has to be the case. The supportive element that comes from the third party is needed.
It is appropriate that we record at this stage the need to address the issue, which is already proposed in the legislation, and that it was never intended to be a simple or frivolous issue. This is a serious issue affecting the lives of pregnant women who, because we in our legislative role might fail to recognise their vulnerability, find themselves in a difficult situation and have to make a serious decision in order to protect their own lives and ensure they do not leave their families behind.
I am happy to leave it at that. We need to return to this matter, but I will not push the amendment to a vote. I stand over the points I made and echo those made by Deputy Smith. This is not just about socio-economic reasons and is not defined as such. It is a WHO definition and is proposed in the context of what we are supposed to be doing, namely, promoting and protecting women's health. Well-being is not just the absence of a physical ailment or defined mental illness - it is also defined by a person's broader circumstances. That needs to be taken into account.
I can see where both the Minister and the proposers are coming from. People can probably meet somewhere in the middle. For example, perhaps the amendment could read, "means a state of complete physical and mental well-being and not merely the absence of disease or infirmity", with the word "social" removed. Perhaps that could be a happy compromise for consideration on Report Stage. I agree that the provision should go beyond physical and mental health and include well-being, although I understand the Minister's point of view about the issue around social well-being.
I will try to be helpful. There will be doctors meeting in other rooms trying to put together the clinical guidelines on how to interpret whatever legislation we pass. We want our doctors to follow the clinical guidelines of their medical colleges rather than the textual lines of our legislation. I am happy to reflect on this matter, but we have to be conscious of how doctors and the wider medical community would respond to and interpret such a definition and what difference, if any, they believed it could make. As well as this being a legislative issue, it is also a clinical one, as clinicians will make these decisions.
We must remember that this only becomes an issue beyond 12 weeks. Up to 12 weeks, no specific indication is required. This section of the legislation deals with a serious risk to the woman's health. We were clear in trying to define that as including mental health and making that definition beyond reproach. I believe we are all largely happy with that. Apart from accepting that the amendment's provision is the WHO's definition, what difference would it make when a clinician is trying to interpret it, if any? I will take clinicians' counsel on this as well.
Is Deputy Daly pressing her amendment?
No. I will take on board the points made. I was particularly struck by Deputy O'Brien's comments.
Amendment, by leave, withdrawn.
I move amendment No. 35:
In page 8, line 17, to delete “or mental health” and substitute “, mental or social well-being”.
Amendment, by leave, withdrawn.
I move amendment No. 36:
In page 8, line 27, to delete “either before, or within 28 days of, birth”.
I might be convinced to the contrary after I hear others' arguments, but the period mentioned is a restriction that is not in the spirit of dealing with foetal life that is incompatible with life outside the womb.
How can one determine that this is okay up to 28 days when the child might live for 29 or 30 days after birth or that it is okay for four weeks but that the child might live for five? The amendment suggests the deletion of the phrase “either before, or within 28 days of, birth”, which makes it clearer that what one is dealing with is foetal life that may be incompatible after birth. If the Minister comes back with information that provides more clarity, then I am happy to be convinced.
I am happy to do my best to provide Deputy Bríd Smith with clarity, although I do not know if she will agree with what I have to say. She might recall that when we published the general scheme in March, we defined this as "shortly after birth". I think we all understood the policy intention - as a policymaker, I certainly did - that this was to ensure that the issue of fatal foetal abnormalities could be dealt with in our country and that arguments put forward by groups such as Terminations for Medical Reasons, TFMR, could be addressed. Those of us who campaigned for a “Yes” vote very clearly and determinedly argued that there is a distinct difference between this and a disability. I felt there was an effort on the part of some to muddy those waters. We are talking about fatal foetal abnormalities, which is not the medical or legal phrase but it is the way that we all understand what is involved. To have that, there must be a specified end period. When I met clinicians - mainly after the referendum - and legal advisers in the Office of the Attorney General, it was clear that there were two periods from which to choose from a policy perspective, namely, the perinatal period or the neonatal period, that is the seven days or 28 days. I opted for the 28-day period.
I do not wish to speak for the Deputy, but I think this is from where she and others may be coming, namely, how can one know with absolute certainty that it is within 28 days and how a doctor might interpret that? This is the key question that a number of us are trying to address. I would answer by saying that the legislation includes the phrase “in the reasonable opinion of” and was formed in good faith. These are clinical decisions and I am not going to do anything in legislation - nor is the Deputy asking me to - which means that I, as Minister, or we, as legislators, would prescriptively decide that. However, I need to provide a period for guidance for our doctors. We are saying that if, in his or her reasoned opinion, a doctor believes a baby which it is at this stage is not viable and would not live outside the womb for 28 days, it will be legal to provide termination services.
I genuinely do not believe that it is Deputy Bríd Smith’s intention. However, I am concerned that if a specific period was not stipulated, we would have a very peculiar situation because we would be saying that this is only for fatal foetal abnormalities but also that it is for fatal foetal abnormalities that may not be that fatal. We would be getting into a broader range of conditions. I promised the people that disability would not be a ground – I am not suggesting that is the Deputy intention – but my worry is that this might be an unintended consequence. We must provide our doctors with clarity. I have not received any information to the contrary from any doctors, masters or clinicians to the effect that they are unhappy with this period. On the contrary, this is a welcome clarification which was provided in the July general scheme but which was not in the March general scheme. That is from where I am coming.
I have a question on which other members may wish to follow-up. We have dealt with many amendments in respect of which the Minister referred to the legislation and the medical guidelines and how they must marry with or complement each other. My point is that this should be a medical guideline rather than something dealt with in legislation. I am not against medics having advice or guidance available to them or that their science would inform them, far from it. However, it should not be in legislation because by putting it there risks the outcome in respect of which the Minister argued previously, namely, the criminalisation of medical practitioners who breach the provisions of the Bill. This should not be in the legislative instrument, it should be a medical guideline.
I know that other Deputies wish to come in but I think this clarification will be useful. The reason I am including this is to provide much wanted and sought after clarification for the medical community and also legal clarity. The scheme I published on the Department’s website on 28 March required certification of a “condition affecting a foetus that is likely to lead to the death of a foetus either before birth or shortly after birth”. Doctors understand what constitutes a neonatal period but they do not understand with as much clarity, nor should they, what “shortly after birth” means. They wanted a sense from us as legislators as to what is the period in question, which is the neonatal period. I take the point made by Deputy Smith, and I do so seriously. It returns to the reference to the chilling effect and so on. I do not believe that there is any chilling effect here, nor do I believe that medics think that either, although I am open to correction because the phrase “in the reasonable opinion of” is used. We are trusting the clinician to make the decision that it is appropriate to terminate. We are trusting his or her medical, clinical opinion and that of a colleague in this situation because the opinion of two doctors will be required.
Another thing that we have not discussed much, but which is obvious, is the judgment of the mother. We are talking about three adults, namely, the mother, in a much wanted pregnancy with the devastating news of a fatal foetal abnormality, and two doctors, all believing in the reasonable opinion that this is the appropriate course of action. I do not want to go on too long, but the neonatal period of 28 days is a term that is understood in the medical community and welcomed by it, as opposed to “shortly after”, which are the types words that we can use here.
I am sure the Deputy is in touch with clinicians but I am happy for her to seek guidance.
I am sorry that I mentioned the chill factor. I ask the Minister to forget that I referred to it and let us talk about the substantive argument, namely, that this should be a clinical guideline and not a legislative provision.
The legal clarification I received was that “shortly after” was too vague. Furthermore, in conversations I had with medics, including senior members of the profession, they welcomed and sought greater clarity in our legislation. They must have their guidelines but these must be based on and anchored in the law. Their view and mine is that “shortly after” is too vague to provide that anchor. That is where it came from. It may be that between now and Report Stage, people will come forward with contrary views but I feel strongly that this is an appropriate period, that it provides legal certainty where “shortly after” did not, that it does not provide a substantive difference to what we aimed to achieve and that it provides a period - the neonatal period - that medics understand.
We will hear next from Deputies Donnelly, Fitzpatrick, O’Reilly and Clare Daly.
I have listened to the back and forth on this amendment. I tabled amendment No. 70, which could be grouped with this. The issue of fatal foetal abnormalities and this 28-day period arises twice - in the definition and in section 12. I have sought to do in that section what Deputy Bríd Smith is seeking to do in the definition section. I think the Minister has got this wrong. I would like him to accept the amendments with a view to returning and potentially tightening up the position on Report Stage. I understand that is a big thing to ask of any Minister but I will explain why I am making my request.
The Minister explained that the 28 days is the neonatal term and a length of time very well understood by medical practitioners. However, the stipulation of 28 days will inevitably put doctors in an impossible situation. What the legislation is going to state is that in a case where a fatal foetal abnormality is present and where the doctor involved believes the foetus will die before or shortly after birth - that is what was stated in the heads of the Bill originally - he or she will be obliged to make a decision. If the doctor believes that the baby will live for less than 28 days, he or she will be operating within the law, and will be legally protected, and may terminate the pregnancy.
If one believes the baby will live for 29 days or longer, one is no longer protected by the law and will be looking at sections 5 and 6. These sections suggest that if one gets that wrong, a prison sentence of up to 14 years may apply. That is an impossible situation to put any doctor in.
Where I agree fully with the Minister is on the need for absolute clarity for medics, including midwives, nurses, doctors and parents. The place for that is surely the guidelines, which are reviewable and within the remit of the medical world. I suggest the Minister could bring forward an amendment on Report Stage to provide for the presence of a fatal foetal condition. That would allow the woman, or parents, and the doctor to talk about that. They could decide case-by-case on the best way to proceed. While the Minister is not trying to act incorrectly, he has got this one wrong. The real application of this as the legislation begins to reach into medical decision-making and operating theatres will be wrong. If 28 days is what medical practitioners want and is what the institutes are suggesting, that is great. In that case, let them or us put that in the appropriate guidelines. Putting it in the law, however, removes the protection of the law once the medical practitioner gets it wrong. It will mean medical practitioners will err very much on the side of safety. Therefore, I ask the Minister to accept amendment No. 36 and to accept my amendment No. 70, which does the same thing to the actual section. I ask him to do so on the very clear understanding that he will come back on Report Stage with a view to placing the matter within the remit of guidelines and doing whatever else needs to be done to provide clarity and to avoid this very dangerous and impossible timeline or call for a practitioner to make in certain circumstances.
The amendment would allow a fatal foetal abnormality to be defined as one where a death occurs at any point after birth. That would dramatically broaden the scope of the section and I cannot support it.
I have spoken to doctors and I do not think they are looking for legislation, but that they do want it defined. Perhaps the ones I am talking to are not the same ones to whom the Minister is speaking and perhaps we should swap over. It makes more sense for the definition to be in the guidelines rather than in legislation. The wording should be changed to say "will be provided for in the definitions and the terms will be provided for in the guidelines rather than in legislation". As 28 days is a set period inclusive of a set number of minutes, going over that may put a doctor in a situation in which he or she is risking his or her licence to practice. That is what we meant by a chilling effect when we spoke earlier. It refers to cases where a doctor wants to act in good faith and has reasonably formed an opinion. While I appreciate fully that doctors are looking for certainty, codifying this in legislation is not the answer. It is better provided for in the guidelines.
The Minister made some very good points and the discussion has been a helpful one. I see a very clear logic in the 28 days. I see what the Minister is trying to do to give effect to the wishes of the population that abortion would be provided in circumstances of fatal foetal abnormality but not in cases of disability. The problem and the basis of our argument here is not the 28 days, which everyone agrees provides the clarity sought and is medically recognised as a neonatal period, it is that it is being provided for in legislation which includes a criminal sanction. The discussion we are having here is the best argument I have heard for the removal, as I recommended earlier, of all vestiges of that criminal sanction from this legislation. In that context, no one would have a problem with putting this forward in this way. As was said, there is good faith, 28 days is recognised and we all know what we are talking about, but if someone errs in good faith on either side of that, no one will put one in prison for 14 years.
The discussion on this has been a good one. I see completely where the Minister is coming from. The 28 day period is a sort of line in the sand. We heard a lot of evidence at the committee about the complexity of fatal foetal abnormality. It may not involve only one serious neural tube defect such as anencephaly, which is an obvious fatal foetal abnormality. One could have a number of genetic and physical conditions overlapping and we could not legislate for every permutation. We had those discussions at the committee on the eighth amendment. I remember Fergal Malone speaking about viability at 500 g and twin pregnancies and all of that. I can understand why this is here. We need to get the best legal advice on it as we do not want to end up in the following situation. If a woman has a fatal foetal diagnosis at her 23-week scan and that diagnosis is of a 100% fatal prognosis due to anencephaly combined with heart defects, and the family decides to go through with the pregnancy, it might happen that the child is born and survives for 29 days. It could happen. I am concerned, therefore, about defining the time period. Could the people who advised that this was a fatal abnormality be sued because the baby lived 29 days? What if the mother has the discussion with the doctor? Do we have to bring the father into it? We have to be very careful. As a result of the committee's proceedings and while we will never cure anencephaly, I am against prescribing anything overly restrictive in legislation, especially with advances in other fields. I acknowledge that the Minister has considered this and that his intentions on 28 days are completely honourable and on the side of the removal of the eighth, but we need to ensure we do the right thing and avoid unintended consequences again.
I record my opposition to the amendment.
Having listened to all of the contributions, I understand both points of view. However, there are other unintended consequences. If the opinion is that the baby is likely to survive beyond 28 days but only for 30 or 31 days, we do not want to force women to look for a review of such a decision as permitted by the legislation. If a doctor says his or her opinion is that a fatal foetal abnormality is present but the survival period is likely to exceed the 28 days, it is open to the woman to seek a review. We do not want to re-traumatise women either by making them look for reviews of these decisions. While I understand the need for some sort of timeframe, I do not know that primary legislation is the best place for it. While the Minister needs some sort of guidelines, guidelines should be in guidelines not primary legislation.
I came across a case a while back where two doctors told a mother the child would not survive more than two or three days after birth-----
This is out of order. We are past telling stories.
No, this is important. I will be very brief. Whereas the parents were told the child would not survive past two or three days, the child actually lived for 11 weeks and was given a Christian name and a Christian burial. Doctors are not right all the time, and it is important that that be put on the record. This is a case in which the child lived for 11 weeks and the parents were told it would not live past two days.
To take Deputy Grealish's point, this goes back to choice. Different women and their partners will make different decisions in different cases. The tragedy in Ireland at present is that the State will support and protect those who make one choice and send those who make the other to Liverpool. That is what we are trying to end here. As Minister, I brought forward the general scheme in March that tried to define this as "shortly". That was clearly my preference. The legal and medical advice on the 28-day period is very clear to me. I am therefore not taking this decision lightly but, rather, on the advice of legal and medical minds that I highly respect.
I get the point as to whether it is better just to put this in clinical guidelines and I, too, have asked these questions. The law of the land will always trump clinical guidelines, and I have no doubt but that people will challenge this legislation or endeavour to do so. If "shortly after" is a vague term, I worry about family division on issues and about people in court deciding to define "shortly after". Nothing in clinical guidelines will prevent this, so we must provide the legal clarity in which medics anchor their guidelines. I was asked by them to do so, and that is what we are trying to do. We have provided for maximum flexibility for clinicians here, as is appropriate. We are not saying it must be within 28 days; rather, it is a matter of it being in their reasonable opinion, formed in good faith, that it is within 28 days. We need to remember - and I appreciate Deputy Clare Daly's comments in this regard - that this is about fatal foetal abnormalities, not foetal abnormalities. For it not to be about foetal abnormalities, there must be reference to a period of time. That is what I am endeavouring to do here. While I am sure I get many things wrong, this is a proposal on which I come to the committee with a very strong basis of both legal and medical opinion. Because the matter of fatal foetal abnormalities is such a sensitive one for Deputy Donnelly, me and everyone else on this committee, we all want to get it right. I am therefore absolutely happy and would very much welcome the chance to engage with Deputy Donnelly and others on this between now and Report Stage. I am absolutely happy to be proved wrong on this, but my very strong view is that the phrase "shortly after" will provide far too much grey area and therefore, potentially, far too much pain. That is where we are coming from in this regard. If the phrase "shortly after" would have worked, I would not have amended the general scheme I published in March.
I wish to come back to the amendment with which we are dealing. The words "shortly after" do not appear in it. What the amendment states is "to delete "either before, or within 28 days of, birth"" from the sentence containing the words "likely to lead to the death of a foetus". The words "shortly after" do not come into it. The Minister is using those words; I am not.
Yes, I apologise. Those were Deputy Donnelly's words.
Yes, so those words do not come into it and it is neither here nor there in the context of this discussion. The Minister is having it both ways in what he argues. He says the Bill must be prescriptive on exactly 28 days and no more, yet there is a 14-year sentence for any medical practitioner breaking the legislation. It is not right for the Minister to try to have this both ways. If he wants to be prescriptive, as Deputy Clare Daly said, about the period afterwards, he cannot tie the hands of the medical practitioners to such a degree that he keeps that chill factor on their backs, the monkey on their backs. That is my argument. I am not saying he cannot. He can do many things that I do not think he should do but he can do a lot more than the rest of us. I ask him to consider seriously leaving this within the medical guidelines rather than in primary legislation. If he is saying he has both medical and legal advice on this, again, we ask him to share it for us to see, please.
I am sure Deputy Smith did not mean it this way, but I do not think anyone here is trying to have it both ways. I think we are all trying to ensure we get the best legislation we can and achieve what the Oireachtas committee tried to achieve and what the general scheme ultimately, in my view, tried to achieve. I would be happy, when I brief members of the health committee as to why this was the rationale, to do so with the experts I have. Deputy Smith would argue that by putting this in, I am tying the hands of medical practitioners. I very respectfully argue that by not putting it in, the advice to me is that one would be accidentally tying their hands.
We would like to see that advice.
I am happy to facilitate the Deputy's request.
Let us break this down. We are talking about legal and medical advice. We need to look at section 12, "Condition likely to lead to death of foetus", subsection (1), which states: "A termination of pregnancy may be carried out in accordance with this section where 2 medical practitioners, having examined the pregnant woman, are of the reasonable opinion formed in good faith that there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before, or within 28 days of, birth." This subsection is what we are talking about.
Because of the sections concerning offences, the Bill is structured to state that termination of pregnancy is illegal, with a long potential prison sentence, except in the circumstances referred to, and this is one of those circumstances. Therefore, if we include this in the legislation rather than in the guidelines, any doctor making this call, sitting with a couple and telling them the foetus will not survive but, rather, will die either in the womb or shortly after birth must certify this and sign his or her name to it. The couple then ask more precisely how long the foetus will live and the doctor saying he or she does not know, that it could be three days, 15 days or 30 days. Every single case then gets written up and sent to Deputy Harris or whomever the Minister of the day is. The doctor must be able to stand by the fact that the baby, if delivered, will die within 28 days. In many cases the doctor will not be able to make that call. He or she will know that there is a fatal foetal condition present, that the baby will die within days or weeks of birth, but will not be able to say, "Yes, I can certify that it will be within 28 days." That is the legal position that this creates.
The two points the Minister makes are based on the medical advice and the legal advice he has. I do not know what medical personnel he has spoken to but I suggest that their advice is that we need clarity. I doubt they are saying to anyone that the 28 days must be in the legislation rather than in guidelines. What they are probably saying is that they need to know if the provision states "shortly after birth" or "within 28 days". The issue of what they are saying can be dealt with by putting the 28-day provision in the guidelines. I doubt medical practitioners, including obstetricians, are saying they need the provision in the primary legislation. Perhaps they are.
The second point is the legal point. The Minister says he has legal advice that he must give an exact time period. If that legal advice is from the Attorney General, my understanding is he cannot share it with us as one cannot share the Attorney General's advice. I have been trying to get that advice during my eight years in the Dáil and the position is always "Sorry, but the Attorney General's advice is privileged." Therefore, if the advice from which the Minister quotes is from the Attorney General's office, which it must be, he is prohibited from sharing that advice with us. The point of this committee is for us to tease out the legalities of legislation. I accept in good faith that the Minister has advice from the Attorney General.
It is also the case that the Minister cannot share that advice with the committee. The purpose of Committee Stage is for him to explain to us the legal implications of the legislation. Will he tell us, then, regarding the legalities of the Bill, and given that the 28-day provision can be put into the guidelines, the legal problem with taking that provision out of the legislation?
It is a myth that one cannot share the Attorney General's advice. One cannot hand out the Attorney General's advice or letters containing that advice. In my time as Minister for Health, on every single occasion I have been asked to share the Attorney General's advice I have done so by way of speeches in the Dáil or précis papers that I had circulated in advance of the wording to all Opposition spokespeople on health. I am happy to do likewise when, I would suggest, members of the health committee meet me and officials either this week or early next week, depending on when this item of business is concluded.
The very clear advice was that anything that did not have a specific time period was too vague and therefore was subject to challenge.
Even if it is in the medical guidelines?
Yes because the clinical guidelines are what help the clinicians to do their job. That is how clinicians interpret the law but if we do not provide them with the clarity in the law, then there is a problem. I am not referring to Deputy Donnelly here when I say that we might find ourselves crossing over into the role of being both politicians and obstetricians. The obstetricians know what they are at here. They know what the neonatal period is and they make these clinical judgments all of the time. They have written a letter to all of us today in which they highlight the areas of this legislation with which they have difficulty. Deputies will note that they are not talking about people swapping doctors and so forth. The letter is from doctors involved in drawing up the clinical guidelines from the Institute of Obstetricians and Gynaecologists and the Royal College of Physicians, including masters of our maternity hospitals. They are not flagging this area as being one of concern. They are flagging a number of areas of the Bill as problematic but not this area. I can tell the Deputy, based on my conversations with them, that they have asked for certainty. Deputy Donnelly is correct that they have not said that we should put in "28 days" or "7 days" but they have said that we should put in a definite time period-----
Have they said that they need it in the legislation rather than in the guidelines?
Yes, genuinely, and we are engaging on this because my stated aim when I published the original Bill was to use the phrase "shortly after birth". I accept that this amendment is different but it was my intention to insert "shortly after birth" to allow the clinicians to understand and interpret that. However, the feedback I got from the medical community and the Attorney General was that this was too vague and that we should specify a time period. There is a thin line here that we need to get right and the neonatal period is an understandable time period. If we start going beyond the neonatal period, are we moving beyond fatal foetal into foetal abnormality? That is where we are trying to get to. I accept that there are people to whom we would all like to speak about this issue who could help cast greater light on it for us. If there is a better way of doing this, I am more than happy to do it. However, I am coming to Committee Stage today with a very clear view that clinical leaders in this area, those drawing up the clinical guidelines, are finding that clarity on the time period in the legislation helpful. I will go back to them and will share with Deputy Donnelly what they impart to me and if it is anything to the contrary, I am more than happy to revisit this.
I thank the Minister for that. The other wording which was proposed - I cannot remember who it came from - had legal input, as far as I remember and was that there was a fatal foetal condition "present". Was there an issue with that wording?
I cannot confirm whether there was because I have not put that wording to anyone. I am not certain but my gut instinct is that the likely legal advice would be that it would still require a defined time period but I will certainly inquire further on that.
The "shortly thereafter" phrase seems to be what is problematic because it is fuzzy.
Yes, the lack of a defined time period is the issue. We are all trying to get to the same place but are coming at it from different directions. We are all trying to make sure that doctors are empowered to know what they can and cannot do. My approach to this is that it is of greater assistance to doctors if they know the time period. In terms of the difference between 28 days and 29 days, as was mentioned by someone earlier, these are not exact sciences but are personal tragedies. That is why we are saying, "in your reasonable opinion", knowing that we are talking about people who make these clinical calls already on a daily basis. I should point out that these are doctors who are not unfamiliar with making these calls today. The only difference is that today they are referring people to Liverpool. They are making the calls, making the diagnoses and having these conversations already. They are genuinely familiar with the time periods and with the concept of a fatal foetal abnormality and with the neonatal period. The only difference under this legislation is that they will be able to then provide the service here rather than abroad. In that sense, it is not a new departure for them, in terms of the diagnosis piece and the conversations with families piece. It is the service piece that is new. I am more than happy to engage on it further and I am not being stubborn for any reason other than my concern that if we take it out, we could accidentally cause a lack of clarity rather than what Deputies Donnelly, Bríd Smith and Clare Daly and others want to do, which is to assist doctors. That is not the feedback I have been getting.
I call Deputies O'Connell and Fitzpatrick.
It has just struck me that one of the experts who appeared before the Joint Committee on the Eighth Amendment, Dr. Peter Thompson, was asked a question about this. I cannot repeat his reply verbatim but I remember he referred to "two doctors", "reasonable opinion" and "good faith". What way is this issue dealt with in other countries? Have any other countries referred to "28 days" or "29 days" in their legislation? This is important because I remember this being a significant topic for discussion. There was discussion around this taking longer than anticipated and about mothers being very distraught because of what they had been told 16 weeks earlier and so on. I understand the Minister's approach and support him but I am concerned about the emergence of this, about a definite line in the sand after which, as Deputy Daly has said, the 14 year period kicks in. It seems to me to be wrong, the way this is all folding together and is, in my view, contrary to what we did on 25 May. We have to work with it but I distinctly remember Dr. Peter Thompson, a consultant in foetal medicine at Birmingham Women's Hospital, speaking extensively on this subject.
We must be careful because a number of people have said that then "the 14 year period kicks in" but that is quite a jump. The law will say - and none of us is proposing changes to this part - in your "reasonable opinion" and "in good faith". There is no criminal sanction if a doctor is operating under the heads of the legislation.
Well, I was probably being a little bit overly dramatic but problems occur.
I am not criticising Deputy O'Connell. I just do not want us to accidentally add to the chilling effect, whereby if we suggest that if a doctor gets a call wrong by a day, he or she will face 14 years in prison. That is not the intention of the legislation.
It is not the intention but it could happen.
Neither is it the application of the legislation.
It could happen. Theoretically, that could happen.
I would need to hear legal advice that shows that it could happen. If doctors are operating legally under the legislation, using their reasonable medical opinion, they are operating within the confines of the law.
It would be very useful to find out what happens in other jurisdictions.
It is not an exact science, as the Minister himself said. It is very important because I would hate to see a cut-off period of 28 days and then-----
I mean no disrespect but the expert who was before the committee operates in a different jurisdiction. He works in the UK, where the situation is very different.
I know it is different but-----
The committee on the eighth amendment made very specific recommendations to the Oireachtas and to me as Minister. It said - as members of this committee are saying now - that it did not want to include foetal abnormality that is not likely to result in a death before or shortly after birth. I hope I am not misrepresenting anyone but the only question being asked here, which is valid, is whether it is appropriate, legally robust and clinically certain enough to cover this in the guidelines.
If it is, then I would be absolutely happy to do that but the evidence available to me is that it is not. I am more than happy to share that information with the committee and to return to the issue on Report Stage, if members wish. The advice available to me at the moment is that this is the best way of providing certainty.
I thank the Minister and now call Deputy Fitzpatrick.
The Minister keeps referring to a letter. Is there any chance of getting a copy of it? I am not a member of this committee but am very anxious to keep abreast of what is happening. The Minister has said repeatedly that he is going to keep the committee informed but many of us pro-life Deputies are not on the committee as such. Is there any chance of getting a copy of the letter to which the Minister is referring?
It was sent to the health committee. I am sure the committee secretariat could send on a copy. It is not my job to circulate the correspondence of the health committee.
It is just that this letter keeps coming up and I would love to see it.
It is a letter from 24 obstetricians who are working on the guidelines. In it they make suggestions on how to improve the legislation.
Will someone forward a copy to me?
I will forward the letter. I now call Deputy Bríd Smith.
We want to be robust about this because we have been through a lifetime of experience of sinister and mean spirited elements trying to do down anyone who supports the right to choose and full access to women's healthcare. We have been through the movie in this country so many times. Even over the summer months so much time was wasted. We should have been dealing with this but cases were brought before the courts on very spurious grounds. We do not want any spurious grounds that will allow for court cases or the suing of the State or the Minister. Now is the time to tidy up our act, not after it happens.
I am just reminding everybody that there are sinister and unwelcome elements. The Minister spoke about good faith, all the experience they have and so on, but it is too nebulous. We need to be tight about these matters, particularly where there is a risk to the medical practitioners, the choice a woman makes, etc. That is the reason I find this wording very loose.
Other than the last couple of words the Deputy spoke, there is nothing she said with which I disagree. I am quite sure this legislation will be scrutinised and challenged, line by line and word by word. That is why this Committee Stage debate is different from most of those to which we are used. If we get a word wrong, either by putting it in or removing it, we all know that we run the risk of undermining what is proposed. What I do not want to happen is to have somebody successfully challenge the meaning of fatal foetal abnormality in the courts. That is why I am trying to clarify what we mean by fatal foetal abnormality, without doing what the Deputy is concerned it would do.
I am trying to clarify what we mean by the term "28 days".
Is the Deputy pressing the amendment?
Amendment, by leave, withdrawn.
Amendment No. 37 is in the name of Deputy Donnelly. It will be discussed with amendments Nos. 38 to 40, inclusive, which are related.
I move amendment No. 37:
In page 9, to delete lines 6 to 8.
Amendment No. 37 needs to be taken in conjunction with amendment No. 50. I will talk the Minister through the intention behind the amendment. It is to take the definition of "viability" out of the definitions section and moving it into the only section where it is actually used. The reason for that is because "viability" is defined in section 9 but the only place it is actually used is in section 10.
Yes. I am seeking this change because I was approached by quite a number of people who are very concerned about disability and other reasons for which people might seek terminations. It hinges on viability and the fact that a termination is possible up to the point where there is a viable foetus and a potentially viable early birth. There are three issues involved. The first is a simple drafting issue, which is dealt with via the amendment. The amendment simply states that we should take the definition of "viability", word for word, and move it to section 10. In that way, when people read the conditions under which a termination is possible, they will state, first, that there is a risk to the life or serious harm to the health of the pregnant woman, second, that the foetus has not reached viability - the meaning in this regard is outlined in the section - and, third, that it is appropriate to carry out the termination in order to avert the risks to life and health.
In terms of where I believe there may be an error in the drafting, the definition of "viability" in section 9 states, ""viability" means the point in a pregnancy at which, in the reasonable opinion of a medical practitioner ...". However, section 10 states, "A termination [of pregnancy] may be carried out in accordance with this section where 2 medical practitioners ...". In section 9, "viability" is defined as one medical practitioner but in the main section where it is used it is defined as requiring two medical practitioners. The first issue is around drafting to provide absolute clarity and to state that if this is the main section where "viability" is used, then it should be inserted here. That is the first point I would like the Minister to address.
The second point relates to viability and delivery. As I have been explaining this to people, my understanding of the legislation, with this definition of "viability", is that it states that a termination of pregnancy is possible if the woman's life is at risk, if there is a risk of serious harm to her health in the cases of fatal foetal abnormality and in early pregnancy, which obviously viability does not come into. If the two medical practitioners say there is a viable pregnancy, meaning the foetus can live outside the womb, with or without extraordinary life-sustaining measures, which I know we will debate, the implication of that is once a foetus could be delivered and live, the option of termination of pregnancy is no longer available and, therefore, the foetus will be delivered. That is my understanding of the implication of viability but it is not stated anywhere in the legislation that if one or two medical practitioners deem that the foetus can be delivered and live, then the foetus must be delivered and live. In the context of viability, and it all hinges around the concept of viability, will the Minister say, because it is not explicitly written down, whether it is the case that the implication of this is that once the doctors believe the foetus can live, the option of termination is no longer available and there will be an early birth or an induced birth?
The third point - other amendments we will discuss shortly deal with the same issue - relates to the definition of "viability" in section 9, which states, "the foetus is capable of survival outside the uterus without extraordinary life-sustaining measures". I have spoken to obstetricians about this and asked what would normally happen in terms of an early birth and whether they would normally use extraordinary life-sustaining measures to keep a foetus alive. They said that they would. They said the foetus would be resuscitated, that it could be in ICU, in incubation, and that is their non-legal understanding of the matter. When asked if they would throw everything a hospital has at keeping the early delivered baby alive, they said they would. Some clarification is required on that because "viability" means that the foetus can live outside the womb without extraordinary life-sustaining measures.
I will take those questions in the order the Deputy asked them. The first matter he raised relates to the drafting piece, if I may call it that. The drafters inform me that when a word that should be defined is referenced more than once in the Bill, it then appears in the definitions section rather than the specific section. As "viability" appears in section 9 but also in section 17 - and this is a technical issue in terms of what the Deputy is trying to do as opposed to a substantive one - if it was moved into section 10 but it did not appear in the definitions section, how would we define it in section 17? That is very much a drafting issue but that is the challenge.
The second issue is what is viability and what-----
I also asked about the one medical practitioner versus the two.
I am sorry; I wrote that down too. The reason that is singular rather than plural, which is a point I came across also, is because each practitioner has to singularly do it. It is still a singular assessment, if the Deputy knows what I mean. The practitioner will have to assess the viability and the other person will also have to assess the viability. From the point of view of drafting, we are satisfied with that.
The second part of the question was if the Deputy's understanding was correct that once a foetus - a baby - reaches viability, will that baby be early delivered rather than terminated. The answer is "Yes". I can say that because the legislation states: "A termination of pregnancy may be carried out in accordance ...", and it sets that out. In other words, it may not be carried out if it is not in accordance with that. Does the Deputy know what I mean?
Will the Minister repeat that?
Section 10 states, "A termination of pregnancy may be carried out in accordance with this section where 2 medical practitioners have examined ...", and it lists the reasons, therefore, they are the only circumstances in which a termination of pregnancy may be carried out. In other words, the termination may not be carried out in the other circumstances. That is the legal understanding of that, and I am satisfied that is robust. There is an exception, and the Deputy is on section 10. In an emergency, the priority is saving the life of the woman. That is the law of the land today, and is not a radical departure. Other than in the case of an emergency, the Deputy's understanding of it is entirely correct and tallies with my understanding of it.
The third part of the Deputy's question - this is a matter to which Deputy O'Connell also referred and I understand why people are raising it - is on the idea of extraordinary life-sustaining measures.
Will I speak to it first to save time? Perhaps the Minister might go ahead now if it suits.
I will be brief.
Doctors were asking me, my Department and our clinical advisers whether a baby was viable if it was technically possible to keep a foetus, a baby, alive on some form of equipment or machinery for a very long time. That opens a Pandora's box. Doctors understand very much, as we do, what we mean when we speak about viability and a fatal foetal abnormality. Clearly, we must get the wording right in our legislation and clinical guidelines. We know what we mean. We are asking if the baby can live for a decent period after birth. That is what we are trying to get at. Doctors were asking whether a baby was viable if they went through extraordinary life-supporting measures, with machinery and equipment being used forever to technically keep a foetus, a baby, alive. Perhaps we have not got it right and I know that there is concern about it. We are trying to say that if a doctor has to take extraordinary life-supporting measures to prove and sustain viability, it is not viability. Nobody believes it equates to viability.
We are dealing with amendment No. 37, but amendments Nos. 37 to 40, inclusive, are related. Amendments Nos. 38 to 40, inclusive, are physical alternatives to amendment No. 37. Amendments Nos. 39 and 40 are physical alternatives to amendment No. 38. Amendment No. 40 is a physical alternative to amendment No. 39.
To follow the contributions of Deputy Donnelly and the Minister, my amendment specifically speaks to the removal of the words "without extraordinary life-sustaining measures" to be substituted by "with reasonable medical care". The March version of the general scheme of the Bill which was placed in front of the people defined viability as "the point in pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of sustained survival outside the uterus". Defining viability by reference to extraordinary treatment would be problematic, as it is vague and would give rise to a range of interpretations. It could potentially lead to vast numbers of interpretations and experiences in different hospitals.
If I am correct, we are speaking about the 12-week period; therefore, the pregnant woman would be very sick if an entitlement to an abortion was being considered. If I understand it correctly, she would be in a position where there was a risk to life or a serious risk of harm to health. It could be interpreted in vastly different ways. I was very happy with the March version, but the July version references extraordinary care. As I do of a weekend, I just happened to be reading the catechism of the Catholic Church. In the section which deals with respect for human life paragraph 2278 refers to extraordinary and disproportionate care. If the Chairman will indulge me, I will read this brief part of the catechism. It states: "Discontinuing medical procedures that are burdensome, dangerous, extraordinary, or disproportionate to the expected outcome can be legitimate; it is the refusal of 'over-zealous' treatment".
I accept that I will argue with the Minister about this, but I am concerned about the differences between the March and the later version of the Bill. We have heard so many times this morning about what we told the people we would do and what we were going to do. The logic has been used so many times to say we cannot do something because we told the people something else. We told them something in March, but we are now looking to do it differently. The only change is that bit of the catechism, which is a good read. There is also reference to socio-economic circumstances, which is another day's work.
I think of Ms P in Mullingar. If a woman is sick and a foetus can be kept alive by extraordinary means, the Minister could be allowing something similar to what happened to Ms P happen again in the way this is phrased. I realise we are coming at the issue from different angles. Perhaps there are people present who know something different, but I have spent hours looking at this provision. The law clearly could be used to keep that woman pregnant until the stage of viability was reached. We are talking exactly about such a case. The woman could be unconscious and a caesarean section could be carried out, even if she did not consent to it. To me, it smells of the Protection of Life During Pregnancy Act 2013, from which we are trying to move away.
I am concerned and would like an explanation for the distinct difference between what is in the Bill and what was placed before the people. Perhaps it is a cut and paste job or whatever happens in Departments, but it is extraordinary that the catechism could just end up where one might not expect it to turn up. It was not used before and I argue that it did not get in there by accident. I know that Deputy Bríd Smith recently mentioned the word "sinister". I know what the Minister's intentions are.
I am not a regular reader of the catechism.
I was not until recently. This is materially different from what was included in the March version of the Bill. It is vague and unclear and, again, a departure from the essence of what we are trying to do.
To put the matter in context, such late abortions are extremely rare. When we questioned Dr. Boylan at the committee, the figure was approximately 0.1%. The amendments vary in their wording, but, generally, the fear is the same. This relates to cases where a pregnant woman needs a late abortion. The fear is that there could be hesitation because in the legislation there is a reference to the point of viability. The point of viability changes with medical technology. The question is how much such technology should be employed. I do not have the answer to that question and do not know if anyone does, but essentially a migrant rape victim was refused an abortion for three years and ended up having to go through the trauma of an induced pregnancy. Serious concerns arise. The girl was suicidal. I know that this happened in the past, but it could happen again. I do not know what happened to the baby which survived, but I do know about the possible physical and mental difficulties. For example, approximately 25% of babies born at 23 weeks have massive problems. There is a real danger that if the law is left as it is, with a push towards viability, very sick people will have their treatment delayed. What will be the outcome of such action? Who will look after such a baby which might never have been born, except for massive intervention? We must find a definition of the point of viability. We must delete the current wording as it could potentially lead to very difficult cases.
I am guessing that this might have been introduced around the time of the referendum because of the outlandish pictures and claims made. I do not know what was shown in the pictures.
They purported to show late-term abortions at the extreme end of the spectrum. There was perhaps something of a rush to reassure the public that that would not happen. We must reiterate that these are life and death situations for the pregnant person. Nobody wants to see such situations, but they are sometimes necessary to safeguard the life and health of the woman. We should not allow ourselves to be emotionally blackmailed, rather we need to find an appropriate wording. There is a danger in that regard.
I would never argue with Deputy O'Connell because she is one of my favourite members of the committee, but there has been a misunderstanding on this issue which I wish to clarify. This wording would have been of assistance in the Ms P case. All of the Deputy's arguments would be correct if the section stated "with extraordinary life-sustaining measures". If I was bringing forward a definition of viability such that a foetus would be considered to be viable if extraordinary life-sustaining measures could keep it alive, we would be in the era of catechisms and so on. However, I am saying a foetus is not viable if it cannot survive without these extraordinary life-sustaining measures. Deputy Donnelly correctly pointed out that the legislation could state the foetus would be viable if ordinary life-sustaining measures could keep it alive. However, it does not state that but, rather, that extraordinary measures would have to be used.
We do not want this to lead to normalisation of the very difficult and painful situation outlined by Deputy Donnelly where doctors would have to go beyond ordinary resuscitation measures and so on which, in the normal course of neonatal care, would be seen as keeping the baby viable. This is an extra protection for doctors and women and a more compassionate approach to viability. The formulation in the Bill specifies that a foetus would not be considered to be viable if extraordinary measures beyond those used in normal current neonatal medical practice would be required to save the life of the foetus. This definition is included to try to provide clarity that this is not about the ordinary life-sustaining measures that could be used in a resuscitation unit or neonatal care but, rather, applies a higher bar of extraordinary measures in order that doctors will not find themselves in situations where, theoretically and technically, they could take certain steps to maintain the viability of the foetus but in so doing would only cause absolute agony and pain for the parents, which none of us wants to do. That is where it came from and what it is trying to do.
I do not wish to discuss individual cases too much, but in the Ms P case it would have been a good start if the eighth amendment had not been in place. If this viability bar had been applied in that case, it would have been a very different set of circumstances because the question would have been as to whether the foetus could have survived without extraordinary, rather than ordinary, life-sustaining measures. That is what we are trying to do. It is a well intentioned definition.
I would be interested in hearing the views of the clinical community and our clinical leads. I have some familiarity with their views on the matter and will be happy to ensure those views are made available to the committee before Report Stage. The intention is to set the bar at an appropriate level such that the clinician can make a compassionate decision on viability in very tragic cases.
Did Deputy Danny Healy-Rae indicate that he wished to speak?
I did, yes. I was following the proceedings on the television in my office. I seek clarification. Is this referring to the viability of a baby outside the uterus after being born?
Viability outside the womb, yes.
No effort is too great when it comes to preserving life. We should not cut corners or only do a certain amount to keep a baby alive. Everything possible should be done. If the baby arrives outside the uterus and into the world, every available medical intervention should be made to ensure the little baby will have the chance to survive. If it fails, so be it, but we should not do only a certain amount. A human being is a human being when he or she is born. I do not refer to interfering with the life of the mother. When the baby is outside the womb, every means available to the medical service, extraordinary or otherwise, should be employed to ensure the little baby will survive.
As this is a very sensitive issue, I wish to be clear on the intention of this aspect of the legislation. Of course, it is the case that when a baby is born, any doctor in the country would move heaven and earth to try to keep that baby alive and care for him or her, but that is not what this discussion is about. Rather, it concerns a situation where there is a threat of serious harm to the life or health of the woman or there is a fatal foetal abnormality and doctors must make a decision as to what they can do for that woman and her pregnancy. I am sure the Deputy does not intend to confuse the matter, but for the avoidance of any misunderstanding, let me make it clear that when a baby is born, everything will be done to protect and care for him or her. That is beyond all doubt.
It is very confusing for an ordinary person such as myself in considering the amendment which refers to the deletion of the words “without extraordinary life-sustaining measures” and their substitution by “with reasonable medical care”.
That is the test of viability. In such a case, the baby would not yet have been born. Accidentally or otherwise, the Deputy painted a picture of a baby being born in Ireland and a doctor deciding not to do everything possible to save his or her life. That concept is alien to the health service. Of course, it will do everything possible in such cases. The amendment relates to the viability of a foetus which has not been born and how one tests whether it has a chance of living outside the womb. It proposes that these be the criteria that should apply in those circumstances.
In a way, Deputy Danny Healy-Rae has made the case I was going to put forward. What constitutes "extraordinary measures"? What is extraordinary today might be very ordinary tomorrow and what is extraordinary in Crumlin hospital might be very ordinary in Tralee hospital. I acknowledge that the Minister has tried to define it. The legislation contains definitions of words and phrases such as "obstetrician", "viability", "review", "relevant decision", "health" and "medical speciality". What are considered to be extraordinary measures today could be considered very ordinary tomorrow, depending on technological, scientific and clinical developments in the medical care of babies. A friend of mine gave birth at 25 weeks. The doctors did amazing, extraordinary things and the baby is now in good health and running around. One of the nurses pointed out that they did such things every day of the week. For them, it is quite ordinary. The inclusion of the phrase "extraordinary measures" may be problematic, which is why we have tabled an amendment which would provide that viability was the point at which, in the reasonable opinion of the medical practitioner, the foetus was capable of survival outside the uterus. The section, as it stands, is too open to interpretation.
I call Deputy Donnelly who will be followed by Deputies O'Connell and Tóibín.
The issue which the Minister and I have been discussing is whether "extraordinary life-sustaining measures" can be used when a doctor is determining whether a pregnancy is viable. The key issue is probably short term versus long term. My understanding of the Minister's response is that the phrase "without extraordinary life-sustaining measures" was added to avoid a situation where, in theory, a baby born prematurely could be physically kept alive; it might be brain dead or have issues such that the foetus would not be not viable but, technically, doctors could use equipment to keep the heart beating. That is not a situation we want to see in hospitals. I am talking about the immediate term.
As the legislation is written, a doctor or two doctors will make a call and say: "We can induce birth and keep the baby alive or we can't, and if we make the call that we could induce birth and have an early delivery, and keep this baby alive, then that is what we have to do, and we cannot terminate." Essentially, that is what the section says. In other words, for termination to occur then the pregnancy must not have reached viability. However, viability has been defined as the foetus being able to exist outside of the womb "without extraordinary life-sustaining measures". Now, a doctor makes a call saying: "This foetus is at a point where if we induce birth we can keep this baby alive and the baby could be fine and healthy but we are going to throw everything we have at this and use extraordinary life-sustaining measures." As the legislation is written I could see people interpreting it as saying: "We have to let the pregnancy get to a point of viability where the baby can survive without resuscitation, incubation or the aid of a neonatal intensive care unit, ICU." Therefore, I want the term "viability" clarified for obstetricians whereby a pregnancy has reached a point where if they take a foetus out they can use whatever they need to use to have a healthy foetus, and keep him or her alive, while he or she grows strong enough. Obstetricians would do that for a premature birth anyway. In terms of the legislation as written, I am concerned that it is not what the Minister intends and actually says that when doctors make a call on viability we are telling them that we are defining viability as survival "without life-sustaining measures". I do not think that is what the Minister intends. In fact, he has just said the opposite which is that they will throw everything they can at the problem. Unfortunately, that is not what the legislation says. It states that when one defines viability or makes a call on viability, we are telling doctors that it is viability without life-sustaining measures and that is my problem.
The legislation states "without extraordinary life-sustaining measures".
Extraordinary life-sustaining measures. I do not think that is anybody's intention but that is what the legislation says right now.
Like Deputy Donnelly, I know what the Minister's intentions are here. I cannot see what the problem is with the March version as I imagine it was cleared with the Attorney General.
Let us consider the word "extraordinary" and, as Deputy Bríd Smith has asked, what is meant by extraordinary versus ordinary. I spent a long time in an intensive care unit with a neonate one time so I can attest to the fact that medical staff do extraordinary things in such units and throw the kitchen sink at such cases. Sometimes when things get really bad they make a call to do something according to guidelines or whatever, and their actions often save the baby or improve life. I have been there and seen that they make decisions on the hop, obviously the best clinically supported decisions. We must focus on what is routine and normal medical practice. If I may, I shall read the amendment. If the legislation were to be amended, as I have suggested, then it would read: ""viability" means the point in a pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of survival outside the uterus with reasonable medical care". I believe that the words "reasonable" and "ordinary" are almost equal. I do not want to fall out with Deputy Donnelly. He explained the legislation very well compared with how I read it. I would much prefer if my amendment were accepted and the words "with reasonable medical care" inserted. If the legislation is as Deputy Donnelly has suggested then we should be very careful that the interpretation of "extraordinary measures" in the clinical guidelines is exceptionally clear.
In hospitals, service providers or wherever that have religious codes of ethics, we must ensure that under no circumstances can the religious codes of ethics of a particular organisation trump clinical guidelines. I say that because we cannot have a situation where a woman in this situation ends up in a bad situation in a hospital with religious codes of ethics that use this sort of interpretation. I know and accept what Deputy Donnelly is trying to do with his amendment. I really do not see, if we went back to the March version, what the unintended consequences could be but I am willing to work with him on this matter to make things right. We, or those of us who want this to happen, need to be assured before Report Stage that we will not end up in a situation where the legislation can be subject to misinterpretation because at the end of the day it is all going to affect the women who are pregnant.
Many of us on this side agree with the difficulty but probably for different or polar opposite reasons. The question does remain and the phrase "extraordinary life-sustaining measures" is extremely vague. At the last engagement we discussed the necessity to detail 28 days. We could not leave for a lack of clarity because that would put medical practitioners on the hook, to a certain extent, in terms of not knowing what to do.
It seems to me that by inserting the phrase "extraordinary life-sustaining measures" one will reduce what viability is and, therefore, there will be a higher test for viability. I have a nephew who was born at 24 weeks. Extraordinary life-sustaining measures were taken to allow him to survive and I thank God that he has survived. I am not sure that he would be considered viable according to this Bill.
Yes, extraordinary measures.
I do not wish to talk about Deputy Tóibín's family for his own personal reasons. We must remember the head of the Bill where the definition is outlined. This is where there is a serious risk to a woman's health or life. This is not the broader argument on viability in general. This is a woman who is probably lying in a hospital bed or, indeed, in the back of an ambulance being rushed to hospital and her life is at risk-----
-----or there are serious risks to her health. This is not the general discussion about viability in the pregnancy where, thank God, the woman is well. This is where the woman could die. In that sense, the conversation is much more prescriptive and restrictive because it only relates to head No. 10 of the Bill. I wish to point out to Deputy Tóibín that this is not the general test of viability in terms of maternity services. This is where two doctors are looking at, consulting on and assessing a woman. I always try to be very careful with the language that I use. Let us bear in mind that this is a situation where, presumably, this is a pregnancy and a soon to be baby that a woman really wants and the pregnancy has gone well beyond 12 weeks.
There is probably great excitement that this woman is pregnant and going to have a baby but all of a sudden some terrible tragedy has hit the family whereby this woman is in a very dire situation, for which I know we all have compassion. That is the situation we are talking about, not the general situation without specific indication or pre-12 weeks so, in that sense, it is quite different.
I very much take the point made by Deputy O'Connell. We are all trying to land on the same point here. There are things that we have to be prescriptive about in legislation, and we had that debate a few minutes ago when we discussed timelines and grounds. There are other things that we should not be prescriptive about, and I do not think the doctors think we should be either. For example, we have not defined on purpose what "reasonable opinion" is or "in good faith" because we have to allow doctors, who know what they are doing and are working with, which is probably the wrong phrase to use, to consult and make decisions. They are consulting with the woman on her medical choices as well, particularly medical choices that are going to directly affect her health or life in a very serious way in these situations. We are providing an opportunity here to define what we need to define and to not define what, quite frankly, the doctors are better to define. I am sure we are going to continue to debate what is appropriate to define and not define. In this case I think our doctors know what is meant by the term "extraordinary" because it above and beyond what they would do if a woman today, in her full health, walked into a hospital to have a birth and had a baby prematurely. The doctors would know what to do in that case. The legislation refers to a different situation. This is a tragic situation where there is a risk to health or life so doctors have to make decisions.
We all want to get this right.
I do not think we are actually a million miles apart. I suggest that we actually ask the people who are writing the clinical guidelines, the medical colleges, their views on this issue and on the word "extraordinary". Perhaps Deputy O'Connell's wording or Deputy Donnelly's is better. I am not precious about the wording. I am trying to make sure that the doctor knows that this is not the normal or regular situation where a woman has gone in and is about to have her baby early. This is a very particular situation in which there is a risk to the woman's health or to her life and in which doctors have to make decisions. I am trying to apply the bar that gives the doctor the flexibility to make the decision he or she knows is right.
Would another option not be to delete section 10(1)(b)? The Minister might think that is ridiculous------
-----but we are talking about a situation in which somebody's life is at risk. Doctors are not going to go around killing babies or something like that. The Minister is actually putting in a stipulation that a termination of pregnancy cannot be carried out where there is viability even if somebody's life is at risk. Would it not be better to leave that out of the law and, like the Minister has said, deal with the ins and outs of what viability is in the guidelines? It brings the chilling effect into play again.
I know the Minister is dealing with multiple points on this but could I just get his view on the point I raised? He has not come back to me on it. He has made the point that he would seek medical input on what "extraordinary" means. That is fine. I am raising a different point, which is a legislative point. Medics can give us their view but really it is a legal point. This defines viability in terms of the survival of the foetus outside of the womb "without extraordinary life-sustaining measures". That is its definition. We are telling the obstetricians that when they are making calls as to whether a pregnancy is viable, the foetus must be able to live without "extraordinary life-sustaining measures" after delivery. The Minister and I know that obstetricians are not going to do that. They will throw everything they can at the baby, but to be in compliance with this they cannot. There is a serious drafting issue in how the Minister has defined and applied viability. Could he speak to that?
I do not think that is what I am doing. It is certainly not what we are endeavouring to do. We are attempting to do what Dr. Boylan told this committee. Every other doctor probably told the committee a variation thereof. If a pregnancy reaches viability, except under the emergency head which I want to come back to in a minute because it feeds into this conversation, the baby will be delivered. That baby will then receive all the supports that the Deputy, myself and everybody else would humanely expect a baby to receive. As the Deputy said, everything will be thrown at the baby in terms of service provision, supports, and equipment to keep the baby alive and to care for him or her. This is a situation where the doctor is satisfied that the foetus is not viable. If the doctor believes the foetus is viable he or she will deliver it, subject to section 11 with which I will have interplay in a second. If the doctors do not believe the foetus is viable, we will not end up in the scenario the Deputy painted a picture of - and the Deputy did not use the word "cruel" but I think he would agree with its use - in which a doctor would be technically keeping the heart beating but for all intents and purposes everyone, including Mum and Dad, would know that the baby is not alive. That is what we are trying to do.
Section 11 comes into the Deputy's point.
Could we stick on this bit for a second if the Minister does not mind?
Yes but, still on the Deputy's point, if there is a medical emergency - and remember we are talking about the section on health and life here, not the generality-----
The Minister is going into medical emergencies but my point is not about medical emergencies. I agree with the Minister's intent. What the Minister has just said, and what Dr. Boylan said, is what we want. The point I am making is that is not what is written here. What is written here-----
I think it is. The Deputy thinks it is not, but I think it is.
Will the Minister allow me to go on once more?
What we want is, in a case whereby a woman's life or serious health is at risk and two obstetricians are deciding whether to perform a termination of pregnancy, for one of the tests to be based on whether the pregnancy is viable. What this legislation says, clearly and unambiguously, is that when it is being determined whether a pregnancy is viable, the test to be used is not the normal medical test. How a doctor thinks is, if one can have an early birth, if pregnancy can be induced and if everything needed can be done to keep the baby alive, then he or she will do that. This, however, does not say that. It says that when it is being decided whether a pregnancy is viable, viability is defined as not using any of the kit the doctor would normally use. That is what this says. That is what the law says.
No, it does not. I do not mean to interrupt the Deputy but it says that viability is defined in terms of not going above and beyond any of the kit that would normally be used. We have talked a lot about the chilling effect. It is to prevent that doctor having the chilling effect of being concerned that where, in theory, he or she could do something that would keep the heartbeat going, somebody might argue about or challenge it in the courts. I do not mean to be in any way cruel about that but I am referring to a situation in which, in reality, the baby cannot survive and the foetus is not viable.
I hear the Minister but viability is defined in terms of a foetus being capable of survival without extraordinary life-sustaining measures. That is how it has been defined.
Now he is saying that, to keep the foetus alive in the short term, one can use extraordinary life-sustaining measures.
No, one can use ordinary measures. I am genuinely not saying that. I am sorry. I know it has been a long day for all of us in here. Perhaps I have not been clear enough. We are putting this in to make sure that a doctor has an extra protection. Let us be honest; doctors know what viability is. They make decisions on whether a foetus is viable. They know these things. This will involve two doctors, obstetricians, and they will be dealing with a consenting woman. People will get this. They will know this and these will be personal choices. We are providing doctors with extra protection so that they do not have to have at the back of their minds the concern that, in theory, if they did this, that or the other, that they could perhaps keep the baby alive for all intents and purposes but that the baby would not effectively be alive.
That is what we are trying to avoid. We are trying to avoid that extra chilling factor which the doctor might have in cases where there is something medical that could keep a foetus alive but where, as the Deputy rightly says, the foetus would never become a viable baby. That is what we are trying to get to. I am not sure any of us is clear whether we have gotten there. I am convinced that is what this section does and other people, including the Deputy and Deputies O'Connell and Smith, have raised questions about it. That is why I believe there is a clinical element to this. I am putting this in to provide legal clarity for doctors. It only functions if the doctors interpret it in the way we intend it to be interpreted.
On Deputy Coppinger's point, while I would not support it, the Deputy is entirely correct that section 10(1)(b) could just be deleted. It could be done, but I do not believe it is a good thing to do because we told people, I told people, and doctors told people that when a baby is viable in Ireland, that baby will be delivered. Section 10(1)(b) provides that reassurance. Quite frankly, even if it was not in legislation I believe that any master of any maternity hospital would say that is what he or she would do anyway. That is what doctors do. They try to deliver viable babies. Obviously section 10(1)(b) is not replicated in section 11 because if there is an emergency risk to a woman's life or health, the viability test does not apply.
To be honest, I was not actually going to say anything but the more people talk, the more confusing it gets. It was said earlier that the extraordinary today will be the ordinary tomorrow. I do not believe that. With regard to a patient in an ambulance or hospital, to me extraordinary life-sustaining measures means the best available there and then based on the experience of the people available. Changing that to reasonable medical care sounds as though the whole thing is being watered down. I know that if I was the patient I would want extraordinary measures taken. I would want the best measures available taken. I would not want to have reasonable medical care, I would want the best care. All we are actually doing at the moment is watering the whole thing down. We are confusing people at the moment. At the end of the day, all the person, patient or child wants is the best service. To me "extraordinary" sounds like the best service.
I had not intended to speak on this either. It strikes me that the extraordinary measures referred to are already done. I accept the point made about going above and beyond where there is no hope. The Minister wants to remove the burden from doctors but this does not do that. I understand the intention. It would be very good if we could do it. They perform extraordinary measures. There is a problem with the language but it can be fixed. There is no massive disagreement between members. We are talking about the words "ordinary" and "extraordinary". One person's ordinary is another person's extraordinary. We could be here all day.
We have been here all day and we will be here longer. The intention is to remove the burden from doctors and this does not do that. We need to look at it again rather than vote on it, although I am happy to vote if that is what people want. We are all in agreement that we want to give certainty to doctors but we are not in agreement that this does it.
I will make a brief comment. I indicated I wished to contribute. Extraordinary is subjective-----
Deputy Durkan indicated before I did. It is subjective. Deputy Fitzpatrick's interpretation, if he were in that situation, would be totally different. That is what Deputy O'Reilly is saying. It is about the language. We are trying to get the best legislation.
The Deputy is entirely correct. The problem is all these words are somewhat subjective. The words "reasonable", "extraordinary" and "ordinary" are subjective. The most important point Deputy O'Connell made in this useful and informative discussion is what it will mean in the hospital setting and to the doctors. Will it achieve what I am endeavouring for it to achieve? Will it not? We should try to test it and I am very happy to test it.
With regard to the word "extraordinary", let us consider a new novel machine in America or the provision of an air ambulance. These things happen. People go to receive treatment. They might say the Minister said he would provide extraordinary care and there is extraordinary care in America. It is too vague. Considering all the other technical issues, it is too vague but we will work on it.
It is quite an important element of the subject matter under discussion. I do not have any absolute answers. It is an intricate medical and legislative subject. There is another issue we need to keep in mind. There are some conditions a woman may have at a particular stage during the pregnancy which accelerate very rapidly with consequent results for her health and life. A study of some of the cases the committee dealt with last year would illustrate just how rapidly a woman's health can deteriorate to an extent beyond which it is possible to save her. We need to bear it in mind at this juncture and not leave it too vague. We need to be certain in determining that a particular procedure should follow and when a particular action is to be taken by medical staff so it does not in any way put the mother's life in jeopardy due to doubt, indecision or delay. That can be crucial. I am referring to individual experiences I have come across in public life.
We now come to a decision on amendment No. 37 which is in the name of Deputy Donnelly.
Amendment, by leave, withdrawn.
Amendment No. 38 is in the name of Deputy Catherine Murphy. The Deputy is not present to move the amendment.
Amendment No. 38 not moved.
I move amendment No. 39:
In page 9, lines 7 and 8, to delete “without extraordinary life-sustaining measures” and substitute “with reasonable medical care”.
I reserve the right to resubmit the amendment on Report Stage. I expect meaningful engagement. I feel strongly about this, as do many other members. I want meaningful engagement to try to get this sorted.
Amendment, by leave, withdrawn.
I move amendment No. 40:
In page 9, lines 7 and 8, to delete “without extraordinary life-sustaining measures”.
Unless what Deputy O'Connell has just said is extraordinary, I will also withdraw my amendment. I thought what we meant when we say we withdraw amendments is that we reserve the right to submit them on Report Stage. Do we have to keep saying it?
In that case, the Deputy is withdrawing her amendment.
Yes, so I can submit it on Report Stage.
Amendment, by leave, withdrawn.
Section 9 agreed to.
It is now 6.45 p.m. We have three options. We can keep going, we can take a break and reconvene later this evening or we can adjourn until tomorrow morning.
I am certainly happy to keep going.
Could we take a ten-minute break?
We will take a break and come back at 7.05 p.m.
We could sit from 7 p.m. to 8 p.m.
We will come back at 7.10 p.m. and sit for an hour.
Sitting suspended at 6.45 p.m. and resumed at 7.10 p.m.
I move amendment No. 41
In page 9, line 10, to delete “A termination of pregnancy” and substitute “An abortion”.
Amendment, by leave, withdrawn.
What grouping are we on now?
We are now at amendment No. 42.
We are now dealing with all of the amendments in that section.
Can we take them thematically? This is a very big section and there are many big-----
The amendments should be grouped thematically; it makes sense.
There is a suggestion from the Minister that we take amendment No. 42, relating to medical practitioners, then proceed to related matters, which are amendments Nos. 43, 44, 54, 59, 60 and 67.
Yes, that is in accordance with the note I circulated.
Someone else can lead on this grouping.
We are dealing with amendment No. 42 on its own in the first instance.
I move amendment No. 42:
In page 9, line 10, after “out” to insert “by a competently trained medical practitioner”.
This was discussed earlier, so there is no point in rehashing it. We discussed broadening the scope of what is a medical practitioner. This is another of those amendments.
Amendment, by leave, withdrawn.
I move amendment No. 43:
In page 9, line 11, to delete “having examined the pregnant woman” and substitute “following a medical consultation with the pregnant woman”.
Amendments Nos. 43, 44, 54, 59, 60 and 67 are related and may be discussed together.
My concern here is the use of the word "examined". I would like to change it to read "medical consultation". This has to be a two-way process; the woman must be involved. I also believe that the word "examined" suggested that there will be a physical exam. In standard checks before 12 weeks of a pregnancy with no complications, I am told this is not necessary. I am concerned that the use of this word will have a negative effect on the woman and also may be a barrier to her attendance at services, leading to the use of the illegal pill market. I do not see that the amendment would materially change anything, and I would appreciate it if the Minister could support this amendment.
We are talking about the grouping here. I am proposing amendment No. 44, which seeks to include the words "and ascertained her views". It has been pointed out by several people - and I do not believe it was intentional - that the focus is very much on the doctors in the way this Bill has been written. There are suggested terms which read, "Two doctors, having examined the pregnant woman", reference to two doctors forming opinions, provision for who the two doctors have to be, mention of two doctors certifying their opinions, and reference to actions carried out by two doctors. The wishes of the woman are missing. This is a very simple amendment, which I hope the Minister can accept. It is on page 9, line 11. It currently reads: "A termination may be carried out where two medical practitioners, having examined the woman, are of ... reasonable opinion [of the following things]". I would like it to read: "Two medical practitioners, having examined the pregnant woman and ascertained her views".
The purpose of the amendment tabled by myself, Deputy Donnelly and others, is to put the woman, the pregnant person, into the legislation, to ensure that she is listened to. All of the amendments in this group are saying more or less the same thing. To echo what Deputy O'Connell said, if the Minister could just agree to the amendments we would all get home earlier tonight.
This is a gruesome amendment. At present the Bill requires that two doctors examine a pregnant woman before approving an abortion due to the risk to life or health. If it was a medical consultation this would not happen. We are now saying that a person can have an abortion having spoken to two doctors over the phone. If that was my wife, my daughter or another woman, I would want her to have a proper consultation. We previously made the point that there was not enough backup for the people making the decisions. The decision to have an abortion is a very big one. For me, making the decision having spoken to two consultants over the phone, perhaps without an examination of the woman involved, is gruesome. There is no way I will be supporting this amendment.
There are two or three issues in this group which arise together. The Bill as it stands does not allow a voice for the pregnant woman, the person most affected by this section. That has to be corrected. It could be done in a number of ways, for example by the Minister supporting the amendments which provide for the ascertaining of the views of the woman. Amendment No. 54 is similar to amendment No. 44 tabled by Deputy Donnelly, and reads, "to give effect to the pregnant person's wishes". The language in amendment No. 54 is much stronger.
This is necessary because it is up to the doctors and they can override the person. There is a case, which I might consider on Report Stage, for even adding a clause, after (a), (b) and (c), in reference to a risk to health, along the lines of "and the pregnant person deems this risk unacceptable." It came up in the committee hearings that different doctors have different views on what is a risk. It is subjective. It is good that we are not putting in conditions. The patient, as we would say if it was in another setting, should also have a say. We have seen this paternalistic attitude with cervical cancer. If we are serious about that issue, then we should reflect it in the legislation. An example is a woman with serious health problems. We have all read about, and could cite, cases where a woman has said she was not prepared to take that risk. The doctors should listen to what she has to say.
I support these amendments and perhaps they could even be strengthened so that rather than saying "consult" or "get the views", refers to the woman being a factor in the case. There is also the question of "examined". This idea of two doctors examining the passive woman lying there speaks to that kind of paternalistic language. If a woman's health is at risk, she will not get an abortion over the phone, just in case anyone thought that was possible. The woman, of course, has to be physically there. The point is that it is about a consultation or discussion on what that person feels. That person may have had serious issues in previous pregnancies in childbirth and that all has to be explored with the doctors. I do not know if we are taking "serious harm" now, if it comes into this group, or whether we are leaving that for the moment?
Deputy Fitzpatrick is correct. The decision to have an abortion is a serious one, which people take seriously. Our amendment does not seek to replace the examination; it proposes to add another. Nobody says there should not be an examination but there are issues about what "examination" means. It gives a connotation of that physical issue. The views of the person at the heart of this, whose health is at risk and who is deciding that risk, are important. Somebody aged 42 or 43 who has just found out about a wanted pregnancy late in years might be told by the doctor that if she goes ahead, there is a risk to her health. That woman might weigh it up and decide it is a risk she is willing to take. A younger woman, however, with children at home might think about it and decide she did not want to take it. The views of the person at the heart of situation, whose health is up for grabs, are critically important. We need to put that in the Bill and have it reflected there because it is personal to whomever is the heart of it. It is a worthy addition that makes the Bill more woman-centred.
I want to protest the amendment. There are several others that follow a pattern of seeking to delete the requirement to have two doctors examine the pregnant woman before approving an abortion due to the risk to the life or health of the woman. They would also, perhaps, only have had a conversation over the telephone.
It does not. Can we correct that?
Can I finish? It is my belief that it does. As I said, two doctors might have a discussion without having physically examined the pregnant woman. I oppose this amendment.
The Deputies who tabled amendments are correct in that we can do better in this section. Deputy Coppinger pointed out that many Deputies have tried to do better in slightly different ways but we are all trying to arrive at the same landing point. The amendments tabled by Deputies O'Connell and Donnelly are similar in that the idea that "examination" has a connotation that the woman's views will not necessarily be taken on board or that it is just a kind of a physical examination and that is all. That is not the intention. Without being pedantic or negative, because I support what is trying to be done here, there are some things we need to get right between now and Report Stage. It would be excellent if we could try to agree, with the benefit of the legal advice I can offer, on improving the wording on "examined" so that it is much clearer that this is a consultation and a discussion and that, of course, the woman's views matter. We are all entitled to our beliefs but not to our own facts.
Nowhere in these amendments, as Deputy Daly correctly said, is any Deputy trying to remove the idea that the doctor has a role to play and that he or she carries out the procedure. As Deputy Coppinger said, this is not pick up the telephone and have a termination. Truthfully, that is not what is happening.
In response to Deputies Fitzpatrick and Mattie McGrath, this will still involve seeing a doctor, a consultation and all of the other stipulations. It is more about seeing if there is a way of making the language more woman-centred. In this case, it may also be more than just language. It may also be about making sure there is a clear understanding as to how that engagement, if I can call it that, or that consultation is meant to work. To state the obvious, much of this is implied.
The Medical Council's Guide to Professional Conduct and Ethics for Registered Medical Practitioners, published in 2016, states on page 10 how any consultation is meant to work in taking on board the views of the woman - the guide uses the word "patient" - and that includes consent, etc. The Medical Council regulates our doctors, not me and not the Oireachtas. It tells our doctors how they are to behave and also provides for serious sanctions if our doctors do not behave in that way. I thank the Deputies for the amendments which will improve the legislation if we can get this right together. It is worth pointing out, however, that, while there is benefit in doing this, there is also a role for the Medical Council. That would be helpful.
I may have said this already because it has been a long day, but, if I did not, these amendments apply to head 11, which is important. They need to apply to head 17 as well. How the review process is carried out needs to be consistent with how the initial consultation is carried out. I have spoken to colleagues about this and I acknowledge there will be issues in respect of some circumstances where a woman could be very sick or unconscious. I am not suggesting that there are not ways of dealing with that but these are issues we need to tease out. The three sets of amendments have all tried to do roughly the same. Everybody might have their own preferred wording or version or feel that their version is stronger but everyone is basically asking if the legislation can be improved and made more woman-centred. I am committed to working with all of the Deputies to do that by Report Stage.
I am not here to scaremonger. When someone says "examine" the pregnant woman, to me that means physically examining a woman. If we change this to "medical consultation", is the Minister telling me that two doctors will not ring a pregnant woman, talk to her and not see her physically at all? Will the Minister confirm that will not happen?
I will withdraw that protest. At the end of the day, the main concern here is the woman. As I told the committee, to me "examine" and "medical consultation" are two different things. If the Minister, however, is telling me that the woman will be physically seen by the consultant, then I am happy enough.
Absolutely, termination of pregnancy services in Ireland is not going to be done by tele-medicine. There will be a 24-7 telephone line that will be able to advise and signpost and I am sure we will get to that discussion.
I take it that the Minister will bring forward a series of amendments. Is there any reason not to accept amendment No. 44? That is, essentially, to include "and ascertained her views".
Yes, there is. It does not apply at the moment to head 17, so it would create an inconsistency in the Bill. That is a technical point. I do not mean this smartly, but I am not 100% sure which amendment to accept. The amendments from Deputies O'Connell, Donnelly, Coppinger and Daly are all trying to achieve the same objective. Which of us together can get the best wording is something we need to tease out.
I will conclude on this. Is Minister going to suggest the amendments on the basis of us all being in agreement?
My instinctive position is that the word "examination" is the crux of the concern.
If there is a better word which reflects what the Deputies are trying to say, namely, that there will be a consultation and that the woman's views matter, I would like to try to use that word. Obviously, however, I need to do so in a way that is legally operable.
I am going to bring in Deputy O'Connell.
Did I hear the Minister correctly when he picked up something and quoted what constitutes consultation? Was he implying that the definition of "consultation" - from whatever he was reading - covers the term "ascertain views"? Is that what he is implying? I do not want to misquote him, but I took from what the Minister said that a consultation per those guidelines involves ascertaining views. That would lead to say that my amendment is more acceptable because it covers the work-----
Deputy Donnelly is from Wicklow and Deputy O'Connell is from Fine Gael. I do not know what to do.
We are not going to die in a ditch with regard to the wording but the intention is clear.
We are agreed that we are going to work on it.
Yes, we are. Obviously, medical consent will apply. No one is suggesting otherwise, but there will be no forced terminations and of course the woman's views matter and must be taken on board. The termination will only happen if that is the decision at which the woman arrives. I accept the point Deputy O'Connell is making to the effect that the language - and use of the word "examination" - sounds cold.
It does not sound collaborative. The minute I read it, I immediately thought about a victim of a violent rape and that person being obliged to undergo a physical examination. Obviously, it would cover everybody but, from a human point of view, it is important that we look at this.
To avoid any risk of people thinking one can have one's life saved with an abortion over the phone, the phrase "following a medical examination and in consultation with the pregnant woman" or something similar could be used. The words "consultation with" are important because in any medical situation - be it cancer, a heart operation or an amputation - it is consultation with the person affected. That was in the report of the Joint Committee on the Eighth Amendment of the Constitution.
I am not going to go into what I am going to work on between now and Report Stage and I think my colleagues understand that. The phrase "consultation with" sounds good to me, as a layperson. If there is a medical emergency or if the woman is unconscious-----
We need to work that bit out.
I do not disagree with what Deputy Coppinger is trying to achieve.
In the interests of clarification, consultation with usually includes an examination. It is part of the consultation process. They are not mutually exclusive, they are quite inclusive.
Does it involve consultants?
The phrase "There is a risk to the life, or of serious harm to the health, of the pregnant woman" is used in amendment No. 46. Does the Minister not think-----
We are not discussing amendment No. 46.
It is coming up next. We are nearly there.
Coming back to amendment No. 43, we have strayed a little from the brief so there is a bit of confusion. Amendment No. 43 suggests substituting "having examined the pregnant woman" and putting in "following a medical consultation with the pregnant woman". That is amendment No. 43 from Deputy O'Connell.
I will withdraw the amendment. We will discuss it with the Minister and I expect a positive outcome.
Amendment, by leave, withdrawn.
Amendment No. 44 has already been discussed with No. 43. That is in the name of Deputies Wallace, Clare Daly, Joan Collins, Donnelly and O'Reilly to move.
I move amendment No. 44:
In page 9, line 11, after “woman” to insert “and ascertained her views”.
On the basis of the massive hostage to fortune just given by Deputy O'Connell, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 45 cannot be moved because Deputy Catherine Murphy is not here.
Amendment No. 45 not moved.
I move amendment No. 46:
In page 9, line 13, to delete “of serious harm”.
There was enough discussion about this at the eighth amendment committee and many of the medical professionals who gave evidence were clear that it is not possible to grade risk in this way. They told the committee that it is difficult for them to respond medically to the words like "serious". For that reason, we want to see the deletion of "serious harm".
Are we going to discuss amendment No. 53 as well?
Amendment No. 53 deals with the same thing. On the basis of legal advice we obtained - Deputy Kelly got the same advice - "mitigate" is the preferred word. If there is an argument against that, we will hear it, but there is clearly a conflict because the advice that we are getting contradicts what is in the legislation.
There was a large amount of discussion at the eighth amendment committee about risk and practically everybody from a medical background who attended told us that this is something best decided in a clinical setting and not defined in legislation. Deleting the phrase "of serious harm" is incredibly important to support medical practitioners' decision-making. This is a key amendment.
Some of these points were made on Second Stage and have been made subsequently. There was a difference between what the committee on the eighth amendment recommended - if we are concerned about following the committee's lead when it suits - and what this states. The bar is being raised by using the term "serious harm" as opposed to "risk to health". It is a bit frustrating for those of us who spent quite a lot of time on that committee and put a lot of work in. The committee thrashed it all out and had a public debate. People watched those committee meetings, which they would not normally. We are here, and people went on a journey and Deputies changed their opinions. Why come back with something that is raising the bar when the term "risk to health" covered a multitude in that it is so subjective? All the doctors said one health risk can quickly lead to another health risk. All of the points have been made and they were made on the record. This should be changed. People voted on the basis of the term "risk to health". In all of the polling, health was centre stage, for years before we even had a debate. The people were ahead of politicians on this for a long time.
It is dangerous if one starts to raise the bar. Risk to health should be sufficient. We should go back to what the Joint Committee on the Eighth Amendment of the Constitution agreed.
I also support the removal of the word "serious". Speaking to my amendment, my advice is that the word "avert" in section 10(1)(c) is too absolute in its meaning and it needs to be examined. That is why I have suggested, as has Deputy O'Reilly, that we put in "to avert or mitigate". I do not understand why that could not be allowed. We have looked at the measure in different ways and the conclusion is that it is too absolute as a legal term. I would appreciate if the Minister could examine the wording because what we hear is that it could potentially give rise to issues.
I wish to speak briefly on the issue of "serious harm". The phrase is used twice as it is used again at line 35 on page 9. We also believe it should be deleted and have tabled an amendment to that effect.
The matter is subjective in that one doctor might consider it to be serious harm to one's health if one's fallopian tube does not work again and another might consider that to be a minor element of harm. What a pregnant person or woman thinks must also be taken into account. I am not trying to insert that into the section but deleting "serious harm" stops it being subjective on the basis of there being a risk to health rather than serious harm to health.
I will look seriously at the wording because if advice has been received to suggest that it could be problematic then I want to check it out. The terms are different and they are meant to be different if, for example, one puts the word "or" in front of it. I will come back to the Deputy on that but I will seek a legal opinion and revert to the committee. The sense was that the word "avert" was to clarify that the scale of risk of harm involved goes beyond that normally involved in a pregnancy and that an abortion would be allowed only where it is required to avoid such harm, but I will check out the reference to "or mitigate" which Deputy Kelly has brought to my attention through this amendment.
In terms of "serious harm", this was a point that was considered at some length during the drafting of the legislation. I take Deputy Coppinger's point that this was not in the Oireachtas committee report, but to be fully transparent, it was in the heads of the general scheme of the Bill I produced in March. I do not know about the Deputy but it was discussed by me and others when we were debating the issue. We had many arguments thrown at us on the question of what is health. What all of us campaigning on the "Yes" side were trying to do was to show that this was different from just an impact on one's health. We are talking here about a situation where a pregnant woman is gone beyond 12 weeks and where the 12 week indication is available without specific indication and she needs a termination to protect her health. We were trying to debunk some of the flippant examples that were given in relation to this situation. The committee did ask me on page 8 in the definition of risk not to define risk, so what we tried to do was not put serious risk in but instead tried to define health. Whether we got it right or not, that is what we tried to do. Instead of saying "serious risk to health" we said "risk of serious harm to health" which is a different thing. The qualification was included in section 10 to clarify from a legal perspective that the nature of the risk to a woman's health goes beyond the normal risk of harm to a woman's health which pregnancy would pose to even a healthy woman.
Deputy Coppinger rightly made the point earlier that pregnancy is a risk to one's health. Being pregnant is more risky from a health perspective than not being pregnant, so we were trying to clarify that this is above and beyond the normal risk to health that comes with being pregnant. For example, the risk would not include poor health from a respiratory tract infection or another easily treated ailment which could harm a woman's health while she was pregnant but which would obviously not have sufficiently serious consequences for that woman to justify a termination of pregnancy being carried out. Unlike some, I do not believe women go through with terminations for easy reasons. These are things people think through as they are very serious decisions so I am not in any way attaching a value, judgment or a view on the decisions women make but we felt at the time that there was a need, and we put it to the people, to differentiate between health and risk of serious harm to one's health. That is what we were trying to achieve.
People are going to ask who will know what serious harm is, and again, if one looks at the legislation, we are not just talking about a random doctor, we are talking about two specialists, an obstetrician, who is someone directly involved in one's pregnancy care and a specialist in that condition which relates to one's health, so if it is a heart problem we are talking about an obstetrician and a cardiologist. As Deputy Bríd Smith said, we are also talking about the woman who finds herself in this situation. Through clinical guidelines doctors will know exactly what this is. These are specialist doctors who in consultation with the woman will be able to make the right decision for the woman. I feel very strongly about the issue of serious harm because regardless of my personal views this was in the draft legislation that was debated extensively during the referendum. People asked us what health means and we provided clarity in relation to it not being the normal risk to one's health that comes with being pregnant.
I need to take a more detailed look on the issue of avert or mitigate.
We are straying a little from our brief. To clarify, we are discussing amendment No. 46, but because amendments Nos. 47, 52, 53, and 63 are related we are discussing them as well.
People are generally agreed that we are taking those two or three issues.
Could we then put the amendment?
Of all the issues we are discussing this is very serious. We were scrutinising the 28 day period and while that was serious this is important because of Savita Halappanavar and others. For example, we could all speculate, and I often have said that if she had been in another hospital she would be alive today. I believe it was random. My point is that the situation is subjective. Women's health matters. It is annoying that one has to justify to the public why people's health is important. We should not be so defensive about this. Health is health and it matters. If there is a risk to somebody's health from being pregnant that person should have a right to have an abortion and we should not have to apologise for that. It is a question of degrees of suffering to which women are forced to go, which happened with Savita. The point is that we cannot intervene yet because someone is not seriously enough affected and I am fearful that something like that could happen again.
We have not specifically mentioned mental health. As has been pointed out, serious harm to mental health is more difficult to measure. One could say serious harm to physical health involves this condition or that condition but we all know that people who feel suicidal do not even bother arguing about it, they just go to England. They do not have the discussion because they know it would be too difficult but it would be very difficult for people with mental health issues that are ignored or neglected. There seems to be a stage that happened between the eighth amendment committee's report and the drawing up of the legislation. I do not expect the Minister to be perfect and adhere to it but some things were changed and there is a question over who made those decisions and then brought them into the debate on the referendum. At this stage it will be one for the history books.
I thank Deputy Coppinger. We are now going to put amendment No. 46.
What is the definition of "serious harm"?
It is purposely not defined in the legislation for the same reason I have not defined "reasonable opinion" or "good faith". It has to be about clinicians being able to make that decision. One of the flaws with the way we are having this conversation today, and it has been a constructive debate and this is the nature of Committee Stage, is that we are plucking a phrase from here or there in the Bill, but it is when we read the phrase in the total sentence that we get a greater understanding. There has to be the specialist doctor in respect of the condition the woman has. That person is the expert and knows that this will cause serious harm to her health. The specialist has agreed it with the woman and agreed it with the obstetrician and he or she forms the reasonable opinion. If I and the Deputy start defining too many words in this legislation, the risk is that we will do exactly what Deputy Coppinger says and put our doctors in straitjackets if it does not fit within those parameters. There are certain things that must be defined in the legislation and what does not need to be defined is left to clinicians making the decisions.
The reason I ask is that we have defined health in the legislation. The definition of health is-----
We are also going to look at adding well-being. The Minister's definition of health means the physical or mental health. We are now saying that it is where there is a risk to life or of serious harm to the health, that is, the mental health. How does one even ascertain what is a serious risk to someone's mental health?
I heard many people talk about this in the past during the debates on the Protection of Life During Pregnancy Act in the Dáil and Seanad. I specifically remember Dr. Mahony, the master of Holles Street hospital, make the point that when there is only life as the ground there is far too thin a line between a serious risk to health - these are not her words but my interpretation of them - and that risk to health being a risk to life. In my view that was the cause of Savita Halappanavar's situation. One could not make the intervention until one believed it was a risk to her life. We are trying to clarify that it is not necessary to wait until the woman is about to die and that the doctor is able to intervene at an earlier stage when he or she believes there is a serious risk to her health. What we are trying to do in this clause is ensure that medics can interact at an earlier stage, before waiting for a horrific situation where the woman is at risk of losing her life. I am not being facetious but we are not trying to say that one can have a termination in Ireland on the broad ground of health. We can all have health issues, particularly pregnant women, so it must be a serious risk.
We know what we are trying to do here. There is a broad situation in early pregnancy, where there is no specific indication required and it is a woman's choice made in consultation with her doctor. After that we are saying it is illegal in Ireland to have a termination beyond 12 weeks except where there is a risk to the woman's life or a serious risk to her health before it gets to that or there is a fatal foetal abnormality or an emergency. That is where we are trying to go. There is no broader ground in the proposition that was put to the people which referred to terminations on broader health grounds. Our medics know what they are trying to identify, which is making sure they can make the intervention before the risk becomes a risk to life. No woman in this country should have to wait until there is a risk to her life before a doctor can make an intervention.
No woman should have to wait until there is serious harm to her health either.
The Deputy can have that view. The Deputy rightly asked me how to define serious harm. This is a rhetorical question but if one removes it, what is the health ground then? I am not being facetious about this because I do not believe any woman decides to have a termination lightly and nobody should attribute that to what I am about to say. However, I referred to the respiratory tract infection that could be treated satisfactorily in other ways. Out of respect to women in this discussion, we also must note that these are women who wish to have their babies. We cannot presume the default position here is, as some people did on the opposite side of the debate during the referendum campaign, that the woman would not want to have her pregnancy or would make these decisions lightly. It is beyond 12 weeks and it is probably a very much wanted pregnancy, but something has happened which means that continuing the pregnancy will risk the woman's health and the best way of resolving that risk is, sadly, a termination. That is the situation, not a broader ground.
If the words "serious harm" are removed and it just refers to health it would return to, hopefully, the definition we will consider on Report Stage which involves the complete physical and mental well-being, not merely the absence of disease or infirmity.
That is a deviation from what I told the people we would do as legislators in the general scheme published in March. Regardless of my or other people's personal views, we told the people that it was not just health. Indeed, many of our opponents tried to paint that picture. They told people not to vote "Yes" because if they did the politicians would change it anyway. I have a significant responsibility to hold the grounds that we put to the people.
Has the medical profession commented on it? The Minister said he has had-----
I have had lots of engagement.
Have its members commented on the issue of serious harm as opposed to just harm?
I have had so many conversations with them I do not recall a specific one. When they wrote to us today asking us to make certain changes in the legislation this is not one of the changes they have sought. I do not feel comfortable enough to speak for them. As with public representatives, there will be many different views in the medical community on this as well. However, I am confident that in the process of drawing up the clinical guidelines, which is at an advanced stage, the medical colleges know how to interpret this.
The more we discuss this and the more I hear from the Minister, the more I am convinced that these two words "serious risk" are very subjective and dangerous to leave in the Bill. We must remove them.
It is not serious risk, it is serious harm.
I am sorry, it is tiredness. The words are "serious harm". Thinking of myself, who decides for me whether it is serious harm to my health? We would never say to a bloke that his health is not as important to him as his life. It is verging on sexism to say that a woman's holistic health, mental and physical, is not very important and that somebody who examines her has to decide that there is serious harm. It is not a tiny bit of harm or some harm but really serious harm. Who decides what the words "serious harm" mean? It is too fluid and open.
It is the specialist doctor advising the woman as to the best way the doctor can rectify it. To be clear, nobody should be obliged to have their health jeopardised. The question here is whether the best way to avert that - "mitigate" is the word Deputy Kelly and others want us to consider - is a termination or if there are other medical interventions that do not require termination that can avert that risk to health.
That is not the question. The question is what the Minister is defining.
The Deputy asked me two questions.
The doctor might well say there are other ways of doing it.
The Deputy asked me that question too. The second question the Deputy asked is about who defines it. As I told Deputy Jonathan O'Brien, the clinicians define it in clinical guidelines. I do not wish to speak for a disparate group of people but I have not received any correspondence or a sense from them that this is causing them a particular difficulty in terms of their understanding of it.
The Minister is saying he received that correspondence.
If I do I will take it very seriously.
We will try to get to the end of section 10 before we finish.
I wish to comment on deciding what to do on this amendment. This shows that things were said in the referendum campaign that should not have been said. People's health is important and we should not be introducing degrees. Also, this is working from the fallacy that women will be running to their doctors and exaggerating in order to get abortions after 12 weeks, because one can get one up to 12 weeks.
Why else would this be there?
There was also the floodgates argument that we should look at the regime in Britain where health is used. The reality should have been argued that 92% of abortions are in the first 12 weeks and this will arise in very few cases. The Minister has just cited a respiratory tract infection. That is usually a passing thing that can be dealt with and nobody will have an abortion just for that reason.
Exactly. That is the point I am making.
I know but it would be a risk to health-----
-----although it would not be serious.
Exactly. We are trying to pick out examples and the point is that one thing can lead to another with health.
That is what all the doctors said when they appeared before the committee. It might seem like a minor thing but it can lead to kidney and other problems. That is the point. To separate health into degrees and gradients of seriousness is not right. I am in a dilemma as to what to do. This is an important amendment but we are in a dilemma because this was argued among the general public. There is a lesson here that we should argue issues on their merits.
Is the amendment being pressed?
As so many Deputies are supporting it, I will press it.
The Committee divided: Tá, 1; Níl, 7.
- Donnelly, Stephen S.
- Durkan, Bernard J.
- Harris, Simon.
- Harty, Michael.
- Kelly, Alan.
- Murphy O'Mahony, Margaret.
- O'Connell, Kate.
Amendment declared lost.
Amendments Nos. 47 to 49, inclusive, not moved.
I move amendment No. 50:
In page 9, line 14, after "viability" to insert the following:
"being the point in a pregnancy at which the foetus is capable of survival outside the uterus without extraordinary life-sustaining measures".
Amendment, by leave, withdrawn.
I move amendment No. 51:
In page 9, line 15, to delete "appropriate" and substitute "necessary".
The amendment proposes to change one word. It proposes to change "appropriate", to "necessary". According to the conditions under which a termination is allowable under section 10 because of a risk to life or health, one of the three criteria is that it is appropriate to carry out the termination to avert the risk referred to, which is a risk to life or serious harm to the health, and the foetus has not reached viability. We have had various discussions on these issues. The amendment seeks to change the wording "it is appropriate to carry out a termination" to "it is necessary to carry out a termination". I have tabled the amendment on behalf of others who feel very strongly about this issue. They have a different view on it to mine but they hold it very sincerely and deeply. This matters a lot to them. It is one word but it matters a lot. Their view is that we should state it is necessary to carry out a termination of pregnancy. That is it. My hope is it does not change the legal situation and that it respects many views throughout the country. I hope it is quite a simple change that we can achieve.
I note it is Deputy Donnelly who tabled the amendment and that perhaps it is contrary to his personal views but he has tabled it on behalf of colleagues of his. I accept that people hold the view sincerely and that what they are trying to do may seem minor because it is just changing one word. It is largely the opposite to many of the conversations we had earlier about making sure our doctors have the flexibility and clarity to make clinical decisions.
I believe the word "necessary" to be too prescriptive based on my interactions with doctors and on the legal advice. The word we are using in the Bill, which is "appropriate", has been considered from a medical perspective with a view to ensuring flexibility for medical practitioners practising in the field. For the Deputies' colleagues who are coming at it from this perspective, flexibility does not mean no regulation. I suggest the legislation is already very regulated in terms of what a doctor must do and consider. To use wording other than that currently used in the Bill could have implications for obstetric practice and I believe that, intentionally or otherwise, it could have a chilling effect on the provision of the service or for medical practice in the area more generally because a doctor would have to ensure it is necessary as opposed to appropriate. How will doctors be satisfied it is absolutely 100% necessary as opposed to trusting their clinical judgment and their interaction with the woman? I am coming at this from a point of view which, in fairness, I believe is that of the Deputy also, of trusting the clinical judgment of specialists and experts in this area and trusting the clinical guidelines. Legally, my advice is this would be too prescriptive and would not provide the flexibility for medical practitioners to do their job to make clinical decisions.
Amendment No. 51 would require doctors to certify that it was necessary to save life or health. The current wording is that "it is appropriate to carry out the termination of a pregnancy" to save life and health. The amendment would be an improvement on the Bill, as it stands, and deserves our support.
We will not be supporting the amendment. I respect the fact that Deputy Donnelly has tabled it, although he himself does not support it. Perhaps the conversation needs to be had with those who do support it. I am sorry to borrow its language, but I do not think it is a necessary amendment. The use of the word "appropriate" is not appropriate in these circumstances. I do not see the need to change the wording as doing so would muddy the waters and make it less clear, when we have spent all day talking about how we could make it more clear. For that reason, Sinn Féin will not be supporting the amendment.
The phrase "chilling effect" has come up quite a lot today. That may also be a little abstract, but I know from where the Minister is coming. He says the word "necessary" would have a chilling effect. I think the word "appropriate", because it is more abstract than "necessary", might have more of a chilling effect. I would be in favour of inserting the word "necessary" into the provision.
Just to be clear, from my perspective, I would not oppose the amendment. It is not one that has come from me, but it has been tabled on behalf of people who have a different view.
However, having listened to their views and with a view to trying to respect that there are many views across the country-----
Why did the Deputy's colleagues not come and argue in favour of it?
-----as long as it would not restrict effect in the real world, I actually think showing respect to the spectrum of views on this issue is good. That has been reflected at the committee today. If the Minister is telling me that there is a legal issue with it and that he has so been informed, he must not take this the wrong way, but I need it to be more than just his view. If the medics are telling him that it would constrict their ability to provide appropriate healthcare, that is legitimate. If they are not, I have to say I would have no problem in changing the wording if it was a respectful way of reflecting the fact that there is a wide spectrum of views on this topic.
If the Minister is saying the medics have told him that this is a problem, we have to take that seriously also.
I will not be supporting the amendment. With all due respect, I cannot even see why it is being brought forward in the way it is. I would see the provision as a fundamental change and think it would change everything. I presume that in the advice the Minister has been given and the consultation he has had with medics he has been told that they would not see that they would be able to operate if such a change was to be made. Is that correct?