Vol. 4 No. 6
I welcome the Minister for Health and Children, Deputy Martin, and his officials. Our task today is to resume consideration of the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001. I suggest the committee considers the Bill until 1 p.m. and if we have not concluded it by then, we will resume tomorrow at 11 a.m. Is that agreed? Agreed.
Last Friday, the committee discussed the First Schedule and the Minister responded. Are there any further questions?
A number of issues were raised to which the Minister did not respond. He has had an opportunity to reflect on them in the interim.
The European Union was one of those issues.
Another related to international law. I am startled that the Minister does not have a briefing note on the important point about the difficulties in which Ireland will find itself regarding international law, particularly the Maastricht treaty. He attempted to reply to that aspect previously, but a number of Deputies were of the view that he did not deal with the issue fully in the context of how an amendment of this nature would stand in relation to the Maastricht treaty. There would also be a difficulty in the context of international conventions.
A woman's right to life is protected by Article 6.1 of the UN International Covenant on Civil and Political Rights. Ireland's second report under this covenant was examined recently by the UN Human Rights Committee. It concluded that it was concerned that the existing law was unduly restrictive. It appears at least possible, if not likely, that the restriction of a woman's right to life as proposed in the current Twenty-fifth Amendment of the Constitution Bill, 2001, could be held to be contrary to the covenant.
A woman's right to life is also protected by Article 2 of the European Convention on Human Rights. In Patton v. UK 1980, DR244, the European Commission on Human Rights held that the denial of abortion to a woman where this would put her life at risk would be an infringement of Article 2 of the convention. It is possible that the proposed amendment, which cuts back on the right to life of a woman, would be held to be contrary to the convention.
The point that needs to be addressed is that, first, Ireland is already in difficulties because of the restrictive nature of the constitutional limitations regarding a woman's right to life. The United Nations is concerned that in cases of rape a woman's life is not protected. The Minister's proposal is to prevent women from having abortions, specifically in cases where there is likely to be self-destruction. This is in the opposite direction to the United Nation's view which is that the position in Ireland is already too restrictive. The Minister's proposal would make it even more restrictive to the point where a woman is told, like the little girl in the C case, that we would prefer her to kill herself rather than have an abortion. This will lead Ireland into a head-on collision in terms of our responsibilities and duties under the UN convention.
While this is a major issue, I do not believe the Minister for Health and Children and his Department should be dealing with issues relating to constitutional law. Extremely complicated international conventions are not the Minister's direct responsibility, although they are the responsibility of other Ministers who have an interest in answering these questions. I am concerned that this is not happening and that these issues will become very controversial if they are not addressed now.
My legal advice is that international conventions will not impact in any way on the legislation or the constitutional amendment. The advice is emphatic in this regard. I dealt with the protocol issue last week. Our advice is that no plausible scenario involving any difficulty has been advanced in terms of the interaction of the proposed amendment with European Union law. The proposed referendum does not involve amending Article 43. It proposes to insert Article 40.3.4o and Article 40.3.5o into the Constitution. The legal advice is very strong on the point that there are no aspects of European law or jurisdiction on the part of any European institutions or the European Court of Justice that could challenge or prevent the operation of the law envisaged by the proposed amendment.
That is remarkable.
The point was made in terms of the United Nations.
It is remarkable. Either the conventions and our commitment to them mean something or they mean nothing. We are reverting to an Alice in Wonderland type situation where, on the one hand, members of the Government make commitments to comply with conventions at international level to bring Ireland into the global community while, on the other, we are happily, or unhappily in some cases, proceeding to deny essential human rights within the State’s boundaries. I express my disbelief that it is possible for the country and the Government to maintain a double standard of that type. It concerns me that we are opening up this issue to a legal challenge in terms of taking seriously the commitments Ireland makes on the international stage.
A mantra is developing about what the legal advice states. I would like to see the legal advice in the context of how the individual is assessed and how the commitments made when conventions were signed can be ignored in this regard. The Minister's statement that he has received legal advice is not convincing. I am sure he has received legal advice - nobody doubts him - but the problem is that the advice does not appear to connect to the reality that Ireland has made international commitments by which we must stand. If we do not stand by them, we run the risk that the Government or Ireland will be held up in some international fora in a way that is not good for the country. This should not happen without a close assessment being carried out and the publishing of legal advice about how that conclusion was reached. It should not be blithely stated that there is legal advice and that is the end of the discussion.
The advice in relation to the European Union was published. The Deputy was in government and knows we have access to constitutional legal advice. The precedent, for whatever reason, has always been that much of this advice was not published. In this instance regarding the proposal——
That is not always the case.
It has been the general precedent.
General, but not always.
That is what I said.
The Minister said it was a precedent, but that is not always the case.
The only other time it was done was under Peter Sutherland regarding the amendment in 1983.
There is an exception. There is a precedent to do otherwise.
In this case we have published a considerable amount of the legal advice in the form of the Taoiseach's response to the leader of the Opposition on a whole raft of questions and encompassing the EU issue. The standard approach in terms of international conventions generally has been that there has never been any pressure. We are not under any obligation to introduce abortion or to provide for abortion.
The Government has been subject to criticism. It was one of the items of criticism at UN level. That is the point I make.
That is fair enough. People can criticise us but it does not place us——
We do not have to comply with it. I see.
It is appropriate that the issue of human rights should be raised in this context. However, if we raise the issue of human rights, it is important to have a picture of what is a human. If one is human one presumably has human rights, and where there is a question of abortion, there are two humans involved. Therefore, human rights apply in both cases.
Listening to some of the debate on this subject in the mass media, one gets the impression that some people at least do not regard an unborn child as human and therefore a proper subject for human rights. Perhaps some of the lawyers working in the international human rights arena have not fixed in their own minds whether they regard an unborn child as human, or at what point in the development of an unborn child it becomes human. However, anything that is human has human rights, unless we want a new term to describe the subject of rights. If we are to continue to use the term "human rights" we must, to my mind at least, regard this as an issue that involves two sets of human rights.
Deputy McManus is very apt in raising the matter, but I question whether some of the international commentators on human rights in countries have actually worked out whether they regard the unborn child as human. Could the Minister give me some guidance on whether in his view of this there is a human rights issue involving the human rights of a child yet to be born?
It has always been at the nub of this issue that there are competing human rights. In many ways the 1983 amendment was an attempt to marry the two by providing that due regard must be had to the equal right to life of the mother. In time, the subsequent inability to legislate for that created problems.
The Deputy is correct in saying that other jurisdictions have different perspectives on these issues. In particular, in international fora there are quite varying perspectives on the issue of human rights. However, for many the issue of abortion is a human rights issue. There are people on the pro-life side who strongly emphasise the protection of the unborn, and their position is not necessarily based on religious belief. People look at this from a very fundamental human rights perspective and can approach the issue from both sides. What legislators must do is try to balance the competing rights in so far as it is practicable in order to guarantee both the right to life of the unborn and the right to life of the mother.
We have discussed the Schedule at great length, but I am concerned about some of the wording. I raised the issue of the unborn in the womb being protected rather than defended and vindicated. This seems to be a reduction in the protection for the unborn, albeit to allow this vehicle for defining abortion as a crime to go ahead. I am unhappy and somewhat concerned about the words: "In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002", contained in 1° (4°) of Part 2 of the First Schedule. I do not know why the words used in Article 40.3.3° of the Constitution, that the unborn in the womb would be defended and vindicated, were not used. That has to be a deliberate choice of words to reduce the protection for the unborn in the womb so as to allow the other sections of the Bill to go ahead. To put it another way, if this were ordinary legislation it would be in conflict with Article 40.3.3°. What we are doing here is creating Article 40.3.4° and linking it to Article 40.3.3° by the words "in particular". We have the words "in general" in Article 40.3.4° and the words "in particular" in Article 40.3.3°. Article 40.3.3° actually reduces the protection that is there and the Minister has not made a case for that.
I sought further legal advice following the Deputy's comments. We debated this at some length on the last occasion. The advice I have is to the effect that no additional benefit would be conferred by the insertion of the term "vindicated", that the term "protect" which is used is considered sufficient and is intended to comprehend the terms "respect, defend and vindicate" which appear in Article 40.3.3°.
Is the motion agreed to?
No.
As there are fewer than 15 members present, under Standing Orders we are obliged to wait for eight minutes or until all members are present before proceeding to take the division.
Cuireadh an cheist.
Tairgim leasú a 13:
I leathanach 9, líne 11, "agus chun críocha alt 2(1) den Acht seo" a chur isteach i ndiaidh "seo".
I move amendment No. 13:
In page 8, line 10, after "section" to insert "and for the purposes of section 2(1) of this Act".
Section 1(1) of the Second Schedule contains a statement about abortion while section 1(2) specifies what is not abortion. The purpose of subsection (2) is to describe what will not become an offence under the Bill. It is important that it be stated that the purpose of this exclusion is to indicate what is not considered abortion. In the same way that subsection (2) has been qualified by using the term "Notwithstanding subsection (1) of this section", the follow-on should also be qualified. I refer here to the fact that section 2(1) will make the carrying out or effecting of an abortion in the State an offence.
It is important that this should be done for the following reason. The definition of abortion is clearly that: a definition of abortion. One can understand the political reasons behind it, but it is difficult to understand the follow-on logic that abortion does not include the "carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman's life other than by self-destruction." If abortion means the intentional destruction by any means of unborn human life after implantation in the womb of a woman, that is what these medical procedures concern. The Minister is including what is, in effect, a false distinction. He must be clear as to the reason for doing so which is to make abortion an offence, apart from certain excluded forms of abortion. This highlights the fact that, from the point of view of the masters of the maternity hospitals, what the Government is trying to insert into the Constitution as meaning abortion is not what doctors would generally consider its full definition. The Government's approach is to exclude certain types of abortion.
On page 46 of the report of the All-Party Committee on the Constitution, Dr. Declan Keane stated:
I think where you are actually directly terminating a pregnancy, whether that be by surgical or medical means to end a pregnancy in the interests of a woman, that, to me, is termination of pregnancy or abortion in any shape or form you wish to define it.
The Master of the Rotunda Hospital, Dr. Peter McKenna, stated:
Personally, I think that you are better to be up front and clean about this and say that the pregnancy is being aborted. That is the treatment. It's not that it is a side effect of the treatment, it's not that it's an unintentional side effect of the treatment. The treatment is you end the pregnancy. That is, I think, abortion. Therefore, putting a total constitutional ban on abortion would inevitably maybe not thisyear, maybe not next year but the year after next . . . inevitably somebody's life is going to be put at risk.
The Master of the Coombe Women's Hospital, Dr. Seán Daly, stated:
I think that if we go down the road of trying to slice up the term 'abortion', then we are only going to complicate things for ourselves even more.
This constitutional amendment will slice up the term 'abortion'. It may be open to a legal challenge but the Minister needs to be specific in indicating the reason this is being done. It is clear that the word "abortion" includes medical procedures by medical practitioners in an approved place in the course of which, or as a result of which, unborn human life is ended. That is included in the general term "abortion". The Minister is attempting to insert a distinction into the Constitution to provide a let-out for the Government. The Master of the Rotunda Hospital indicated that it would be preferable if we were up front about what does or does not constitute an abortion.
The all-party committee made a recommendation regarding clarity and the fact that we need to use words which mean what they mean, rather than what we would like them to mean. I wrongly cited the White Queen as saying that words mean what they mean, I think that was Humpty Dumpty's approach. Dr. Whitaker was concerned about this approach and stated that if a referendum is decided upon then the wording will need the most careful consideration.
This legislation concerns creating an offence for certain types of abortion and excluding other types of abortion from being defined as an offence. This is what the Minister is attempting to achieve and that is what is reflected in the Bill. Therefore, what is being done, and its purpose, are clear.
The section being amended contains much of the essence of the legislation and we need to spend some time considering this issue. Deputy McManus's amendment brings us to the central concerns raised in the House.
The book Lost Lives includes a list of the 3,600 people who died in Northern Ireland in the 24 years of the Troubles. If the figures cited regarding the number of abortions are correct, we would need 40 volumes of this kind of book to name each child over the next 24 years. I raise this issue because much concern has rightly been expressed regarding the 7,000 women who have abortions. We constantly mention these women but we also have to remember the 7,000 lives which have been terminated. This needs to be said because I do not think this point received enough airing during the debate. That is not to take from the cases of the 7,000 women, the trauma they experience and so on. We need to be careful as Article 40.3.3° which we are trying to amend provides for the unborn and the mother. This balanced approach must be maintained in all we do.
Fine Gael made a constructive contribution to the All-Party Oireachtas Committee on the Constitution and instigated the proposal for a compassionate, proactive and adequately funded structure to meet the needs of women in crisis pregnancies and their unborn children. Our Care of Persons Bill, 2001, published in September is evidence of our real concern to reduce the number of abortions. We must be compassionate towards women in crisis pregnancies and it will not help to be judgmental.
We must also be compassionate as regards our concerns for their children. Fine Gael's Care of Persons Bill, 2001, differs from the Minister's proposals. There are three strands to this issue - the legislative and constitutional process in which we are engaged, the Care of Persons Bill and a structured approach by the Departments of Health and Children and Social, Community and Family Affairs, and other Departments, health boards and NGOs to promote the education and prevention of unwanted pregnancies.
The Minister has rolled the second and third strands into one but I would have preferred if they had been kept separate. There are issues regarding, for example, the housing of women in crisis pregnancies which have nothing to do with awareness and education regarding the prevention of unwanted pregnancies. These are different types of issues but I will not quibble. This is a welcome step and we will see how it works. However, my preferred approach was to separate the strands.
I raise this issue because of the provisions in this section. During the summer recess I published a second Private Members' Bill, the Surgeon General Bill, 2001. The objective of this Bill is to create the office of surgeon general which would work with the Oireachtas Committee on Health and Children. I propose that the surgeon general should have the same relationship to that committee as the Comptroller and Auditor General has to the Committee of Public Accounts. This is particularly relevant to our considerations regarding this section of the Bill.
My proposal is that the surgeon general would report independently to the Oireachtas on the operation of the health services. Under the provisions of the legislation we are considering, the Judiciary and medical practitioners would have a role in applying the provisions of the 25th amendment to the Constitution. The Oireachtas can remove members of the Judiciary for stated misbehaviour but it has no power over medical practitioners. A surgeon general could report to the Oireachtas on any health issue, including treatment during pregnancy. This would allow the Oireachtas to receive independent advice on the implementation of the amendment, if passed, and provide a degree of transparency which would inform public opinion. This is important because the Minister's wording in relation to the loss of life is not the one the Medical Council uses in its ethical guidelines, which, presumably, it will continue to use even if the Bill is passed and incorporated in the Constitution.
The process of developing national policy in this area commenced in 1979 and continued in the Green Paper in 1999 and the report of the all-party Oireachtas committee on the Constitution in 2000. The Fine Gael Party recognises that people have the right to seek to amend the Constitution and provision is made for this in Article 6.1, which states:
All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
Our party has scrutinised the Bill, about which we have concerns - I referred to some of them and will continue to do so - with a view to considering the Government's proposals. These involve an amendment to incorporate the effect of detailed legislation in the Constitution for the first time. This gives rise to strong concerns and the Minister must make the case to the committee that the balance of evidence shows that inserting this detailed legislation will achieve his desired objective.
My party has serious reservations about the Bill, as it stands. For example, any medical practitioner, even one just finished training, could decide to carry out a medical procedure referred to in section 1(2). The Minister wishes to amend this following comments made on Second Stage. However, the medical practitioner could still be a registered medical practitioner who has just finished school. Senior physicians have already questioned this provision. In contrast, a lawyer cannot decide even a minor court case until he or she has ten years post-qualification experience before becoming a judge.
In 1983 a short amendment to the Constitution appeared to be watertight, but on its first challenge, to the surprise of those who proposed and supported the amendment, the Supreme Court ruling in the X case showed that was not the case. The Government has proposed a much longer amendment and this may give even wider scope for interpretation to the Supreme Court. For example, Article 40.3.3° states: "The State acknowledges the right to life of the unborn and . . . as far as practicable, by its laws to defend and vindicate that right" with due regard to the equal right to life of the mother. Those who supported the 1983 amendment, and others, believed this applied from conception.
Section 1(1) of the Government's Bill which, if passed, would be added on as Article 40.3.4° of the Constitution seeks to protect human life after implantation in the womb which is not defined. Conception is not mentioned anywhere in Article 40.3.3° and a future Supreme Court could, for example, take the whole Article, if amended, into account. It is not clear if this could reduce protection for the unborn between conception and implantation. It is important that the Minister makes a clear statement on whether the provision will reduce protection for the unborn between conception and implantation.
I doubt it.
The State must defend and vindicate the life of the unborn under Article 40.3.3°, but under Article 40.3.4°, as proposed, the life of the unborn in the womb shall only be protected in accordance with what will be known as the Protection of Human Life in Pregnancy Act, 2002. The words "defend" and "vindicate" are stronger.
Aside from the scope of interpretation which the Supreme Court may have, it appears the Medical Council has latitude in relation to changing ethical guidelines. Guidelines can change with relative ease behind closed doors - this happened during the summer. It is worth noting that the Medical Council guidelines use the words "where there is a real and substantial risk to the life of the mother," not "the loss of the life of the mother." We agreed that a translation of the Irish version states that there is "a real and substantial risk that she might die" while the guidelines used by the Medical Council state "a real and substantial risk to the life of the mother."
If the section, amended or otherwise, is passed, stating that it would be necessary to prevent a real and substantial risk of loss of the woman's life, will the Minister explain whether his wording or the Medical Council guidelines will stand? It appears the wording recently adopted by the Medical Council——
The law stands.
The law stands, but I contacted the Medical Council and said that its guidelines already seem to be outside the law, as it stands. I asked what will happen in the future if its ethical guidelines are outside the law or even the Constitution and what its members will do? The reply was unequivocal: the council said its members will follow the guidelines. One can understand the significance of my wish for somebody such as a surgeon general because the courts are accountable and report in public. The Medical Council makes such decisions in private. Nobody will report to the Oireachtas on the effect of decisions made by the council. The Medical Council is not a third House of the Oireachtas. It makes rules and if the legislation is passed, it may decide not to change its regulations. Its regulations offer less protection.
They do not really.
The council states "where there is a real and substantial risk to the life of the mother" while the Minister states "real and substantial risk of loss of life of the mother." The Irish version states "go bhfaighidh an bhean bás" - a substantial risk that the woman will die. The legislation clearly provides stronger wording than the Medical Council's ethical guidelines. However, the council will follow its ethical guidelines. If a conflict arises in the future, how will the Oireachtas have an opportunity to review the matter without somebody like a surgeon general to report on the matter to the Houses?
Under the Government's proposal a designated Minister will be allowed to authorise approved places where medical procedures will be carried out. It is proposed to give a Minister power to do this by order. An order could be narrow and name only one or two places or wide and name any doctor's surgery. In addition, it could be varied. Similarly, by order, a Minister would have power to vary the type of records a medical practitioner must keep as evidence of a medical procedure under section 1(2) as distinct from an abortion under section 1(1). This power could be used, on the one hand, to completely blur the distinction between a medical procedure and an abortion while, on the other, it could be used to require such detailed records to be kept that no medical practitioner would feel safe carrying out such a procedure for fear of prosecution. A minority party or even Independent Deputies could, for example, make demands either way as part of the price for supporting a Government in office. Thus, a small minority could effectively set aside the wishes of the people. It is without precedent, and at best questionable that a Minister could have the power to vary the effect of a constitutional amendment.
Section 2 provides that the penalty for carrying out an abortion, as defined, could range from a fine, which is unspecified, to 12 years imprisonment. This would be entirely at the discretion of the Judiciary. A future Judiciary might view abortion in such a light that only nominal fines would be applied, thereby rendering restraint on criminal abortion ineffective. Our hands would be tied; we could not increase the penalties.
A human embryo is the new organism which comes into existence at fertilisation. This organism is not just a collection of cells but a genetically distinct human individual "which is oriented towards further development," according to the 1986 report of the Australian Senate Select Committee on Human Embryo Experimentation in Australia at paragraphs 3.4 to 3.8. A European People's Party document entitled A Union of Values, the final text of which was agreed at the XIV EPP Congress in Berlin in January 2001, states that "Distinctions between "human person" and "person", or between the embryo as "a potential human being", cannot be made without introducing an unacceptable kind of discrimination". This issue needs to be considered in the light of what is contained in Article 40.3.3° and what is proposed to be given constitutional effect in Article 40.3.4° if passed.
The job of an Opposition is to treat serious legislation with the consideration it deserves, to point to its weaknesses and to try to improve it. This is particularly true of legislation being given constitutional status, perhaps for all time. I have many concerns about this section and perhaps they can be addressed. If two lawyers argue a case, one for and the other against, one cannot presume that when the court case is over, both will vote in the same way. I am keeping an open mind in so far as I can on the content of the Bill. However, I am worried.
The Minister asked us what template we would put down. I do not know. There may be other ways of doing this. The Bill could be called "The Protection of Life Bill" and its Title could reiterate what is contained in Article 40.3.3°, that there is protection for the unborn. Section 1(1) could be deleted and section 2(2) stand but refer instead to the 1861 Act. A further section 1(3) could be inserted, similar to section 1(2) but with tighter and more restrictive provisions that could delimit the X case to a certain extent, and, because this is a very rare possibility, it would meet the X case ruling without opening the door to abortion. In the definitions section we could include a definition of the unborn as a human person from conception.
Section 2(1) and section 2(2) could remain and section 2(3) and section 2(4) would then seem unnecessary. I presume section 3 would be fine. Section 4 might not be necessary but if it was, that would be acceptable. We could live with section 5 in the circumstances but perhaps amend it to name the Taoiseach or a given Minister. Section 5(4) could provide that the Dáil and Seanad will have to approve any changes and orders, as is now proposed by the Minister and myself rather than vice versa. Then there could a consultative referendum under the Constitution and Standing Orders for the Dáil could be amended to provide that we will not pass any further legislation in this area without a consultative referendum.
The Minister asked for a possible template and I have given him some idea of one. I cannot say, between the launch of the Minister's document yesterday and the hard-pressed work that Opposition Health spokesmen had to do over the weekend, that this would be a perfect formula or even that it is well thought out. My point is that there are other possible approaches to dealing with this issue. Within what I have said there may be the potential for putting together a formula which would have cross-party support and which would remove the need for an amendment to the Constitution even if the Minister wanted to consult the people in a referendum.
Another possibility would be to put two amendments to the people, one with a view to amending the Constitution and the other with a view to consulting them without necessarily amending the Constitution, but leaving the power with the Oireachtas. My difficulty is with the fact that once we pass this section as it stands, the Oireachtas will be forever out of the picture, except by way of a further constitutional amendment. I can go through the history and I will at some stage during the debate. I believe we will be too tired to go through another constitutional amendment. The people will be worn out by constitutional amendments. However, they are entitled to be consulted and would welcome consultation - I quoted Article 6 in that context. They are the ultimate arbiters of policy, but the Minister could introduce another Bill which would, by law, deal with the issues and would not open up the question of a reduction in protection for the unborn between conception and implantation and all that might entail in the future for embryo or stem cell research - a very dangerous area which has been opened up only in the past couple of days by what has happened in the United States.
I suggest, therefore, that the Minister make haste slowly on this issue and if he wants to seek a meeting of minds in another direction, he should talk to us about it. I have put forward what could be the bones of a template, but I do not suggest that I would commit myself to it. The Minister asked what could be attempted. Right through the debate on this Bill, beginning with Second Stage, I have tried to treat this legislation constructively as the Minister asked us to do. There is food for thought in what I have said. This is not the only alternative. If this Bill is defeated, we might not get another opportunity to pass as strong a piece of pro-life legislation that meets all the concerns and could be put to the people in consultation.
Much of what Deputy Mitchell said was dealt with last week in general terms. I will return to some of that later.
On amendment No. 13, tabled by Deputy McManus, the bottom line is that the Act makes it clear what does and what does not constitute abortion for the purposes of the Act and section 2(1) is intended to be interpreted having regard to the definitions and exclusions contained in section 1 of the Act. There is no need to make a change. Abortion is defined in section 1 for the purposes of the entire Act and this also makes clear the conditions under which medical procedures will be excluded from being regarded as abortion for the purposes of the Act.
On Deputy McManus's point about the views of the three masters on what constitutes abortion, she would acknowledge that there are other schools of thought within the medical profession who take a slightly different perspective and would not use the same language. We have worded this in such a manner that it is very clear what abortion means in the Act and what it does and does not permit. I will give an example of another view. Professor Bonnar, who is the chair of the Institute of Obstetricians and Gynaecology, takes a slightly different perspective from those quoted by the Deputy. Giving evidence to the Joint Committee on the Constitution on 2 May 2000 he said:
I think we need to be clear, we need to define our terminology. When I talk about distinguishing this intervention, and I hope that you all see that there's a clear difference between intervening to protect the life of a mother in a situation where failure to intervene will result in the death of both, and dealing with, say, pre-eclampsia, cancer or ectopic pregnancy, that's a totally different thing to doing what would be called an abortion, for example, in England - in other words, a legal termination ending a pregnancy, often for a non-medical reason. When we say this intervention is current practice and we don't want it interfered with, that, to my view, is on the basis that we do not regard this as abortion. What you need to be legislating against, if you're going to legislate, is against other interventions which are not to do with the life of the mother. That's my case.
I quote that to illustrate that there are different schools of thought within the medical community on medical procedures that have the consequence of ending the life of the unborn but are absolutely essential to save the life of the mother. One can argue the toss and have a view on that, but the bottom line is that in terms of the Act and for its purposes the definition is very clear. The amendment is not, therefore, necessary and would confer nothing on the section other than the inclusion in the Act of one particular view.
On Deputy Mitchell's points, when I mentioned a template, my point was that legislation did not follow in the aftermath of the 1992 Supreme Court decision on the X case. The Oireachtas committee is made up of all the parties in the House and it did not reach agreement on a single solution. There were three options at the end and one of those was to legislate for the X case. I have not seen that legislation anywhere. In my opinion, such legislation would be difficult to produce and, to date, it has not been produced by any party. I made the observation last week that such legislation would be additional to the debate on this matter and to the choice people will have to make, particularly if they are made aware, in detail, of what legislating for the X case actually means.
We are putting forward an option which is similar to one of those put forward by the Oireachtas committee. We are proposing a balance of measures which have not met with absolute agreement. There are people on both sides of the debate who do not agree with our approach. Nonetheless, we are trying to arrive at a balance that will attract the vast majority of those who occupy the middle ground. That is our position.
The statute is a criminal statute on prohibiting abortion and we do not define human life in the Bill. The area of embryo research is fast evolving and complex. Last year I appointed the Commission on Assisted Human Reproduction, the membership of which is comprised of legal and medical experts, to bring forward proposals for legislation on that issue and, in the first instance, to produce a report to enable us to assess what are the issues. The commission will be considering those issues and international developments in depth. We are concerned about the evolving situation in this area, particularly as there are no controls or regulations in it in this country. This is not an easy issue and it is not encompassed by the current Bill or constitutional proposal. We believe the best approach will be to proceed in the context of the report of the Commission on Assisted Human Reproduction.
In terms of the issue of words and what they mean, the question of when is an abortion an abortion arose when the chairman of the expert review group, Dr. Whitaker, came before the all-party committee on the Constitution. He stated:
Of course, as you know, I'm not a medical doctor but I've searched all the evidence and it's quite clear to me that that statement that abortion is never necessary to save the life of the mother is true only if you read abortion in a very limited sense, namely, abortion that is not medically necessary to protect the life of the mother. So it's a misleading statement to make that abortion is never necessary to save the life of the mother because it is.
Deputy Jim O'Keeffe, in seeking clarification, replied that "It's misleading in your view?", to which Dr. Whitaker said "Yes". What is being done here is that the expert review group's advice is being ignored and the Minister is attempting to include in the Constitution a misleading statement. In effect, what is being said is that procedures which remove a foetus and thereby destroy human life are not abortions - even though that is the common understanding of what is an abortion - when there is a physical risk to a mother's life.
I wish to deal with the canard raised by the Minister that nobody has introduced legislation in line with the X case. The Government has decided not to propose legislation in line with the X case. The Government is the source of legislation but had it chosen to take up that option and avoid distress, upset and concern of women and those who care about them, there is a very clear legal framework set out to allow it to do so. In that context, I return to the evidence provided by Dr. Whitaker who stated:
The kind of legislation I would have in mind is restrictive legislation and it would say, first of all, where suicide is the threat to the mother's life, require that two specialists psychiatrists certify that the suicidal disposition is genuine and poses a substantial and imminent threat to her life, despite her having had expert counselling and therapy. That is not in proper legal terminology but the meaning of it I think is clear enough. The second paragraph would . . . even where such a certificate is given no termination to be allowed after the first 14 weeks of pregnancy. The third element in the restrictive legislation would be in all other cases of substantial threat to the mother's life, termination of pregnancy at any stage is lawful only if it is unavoidably associated with medical treatment or action necessary to protect the life of the mother.
I do not believe any Minister is in a position to state that an alternative has not been put forward. The Minister is correct to say that it has not been drawn up in the form of legislation——
Exactly. That is the point I am making. Successive Governments and different parties have considered that matter for a long period.
If the Minister wishes to be semantic about it, he is correct to say that a Bill has not been published. However, that is not the issue. In effect, the heads of a Bill were outlined by the chairman of the expert review group on this difficult issue which was dealt with within the context of the Constitution. It is clear that a great deal of thought was put into this matter by the group and that a consensus had been found. That is the most interesting aspect of the review group's work. Even though its membership comprised many different representatives and experts, there was absolute consensus that a constitutional referendum was not the practical way forward. The statements made by Dr. Whitaker to the all-party committee form, in effect, the heads of a Bill.
I am not going to argue with the Minister because it is clearly evident that a Bill has not been published. However, the extrapolation that nobody has worked out how to draw up legislation to deal with the X case must be challenged. Not only has it been worked out, it has been proposed by the chairman of the expert review group as that group's preferred option on how to proceed. I accept that other Governments did not produce the goods in the past but those Governments did not make the situation worse, which is what the Minister is doing.
The Minister is throwing stones at people and stating that no other Government tackled this issue. Let us be clear about this. Other Governments probably understood that a mess had been created. One former Taoiseach, Deputy Albert Reynolds, made a commitment that if the people decided they were not going to exclude suicide as a grounds for abortion, legislation would follow. If the Minister is intent on criticising anyone, he should criticise the Fianna Fáil Taoiseach who made that commitment. I remind him that nobody else made such a commitment because most people understand that this issue is a mess and that what the Minister is attempting to do will make matters worse.
One can argue that what is being done will not make a blind bit of difference to the 7,000 women who travel to England each year. That matter will have to be dealt with in another way. However, the Minister is casting aside the advice of the expert review group. He is stating that the suggested approach put forward by the group will be ignored, even though, in effect, the heads of a Bill were presented during Dr. Whitaker's presentation to the all-party committee on the Constitution, and asserting that we are going to revisit the 1992 referendum.
This is much more than a semantic issue and I am certainly not throwing stones at anybody. In my opinion I have been reasonable about this matter and I have raised a legitimate point. It is instructive that nobody has produced legislation. Even if Dr. Whitaker and the expert review group suggested a framework, no political party has produced legislation on this matter. I do not know why that is the case and I was merely stating the facts. In my view that is instructive in itself. One of the reasons legislation has not been produced is because of the complexities involved. These are not merely legal or issue-driven complexities, they are also political complexities.
Deputy McManus's amendment would amend section 1(2) of the Bill but refers to section 2(1). If accepted section 1(2) would read:
Notwithstanding subsection (1) of this section, and for the purposes of section 2(1) of this Act, abortion does not include the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended where that procedures is, in the reasonable opinion of the practitioner, necessary to prevent the real and substantial risk of loss of the woman’s life other than by self-destruction.
Section 2(1) of the Bill states, "No person shall carry out or effect an abortion in the State." That is the reason the words in the amendment are being inserted. Does the Minister think the addition of the wording in the amendment strengthens or weakens the Bill? What are his concerns about this amendment?
I have stated that the amendment is unnecessary.
Is the Minister suggesting it does not weaken or strengthen the Bill - that it is a neutral proposal?
It could give rise to confusion in terms of the overall text.
How would that be the case if the statement is qualified by the phrase, "Notwithstanding subsection (1)”?
Then what is the reason for bothering to insert it?
Then what is the reason for including the phrase, "Notwithstanding subsection (1)”?
The amendment is unnecessary. I understand the reason the Deputy has put forward this view which she has articulated. She is of the opinion that the one overall term is "abortion" and that is what should be used. It is an issue of language and not effect or application.
No, it is about the restriction being imposed to ensure that certain types of abortions are defined as an offence while others are not so defined.
Yes.
I am not changing the Minister's definition of abortion even though I do not agree with it. I am suggesting the need for clarification of the term.
It does not need to be clarified.
Then what is the reason for the clarification in subsection (1)? The Minister could easily stipulate that, in the Act, abortion means whatever, and then outline procedures which are not included as abortions. He has qualified the term.
Section 1(1) states, "In this Act, "abortion" means the intentional destruction by any means of unborn human life after implantation in the womb of a woman". We then included the phrase, "Notwithstanding subsection (1).”
That is right, so subsection (2) is qualified.
That is because it is a major exclusion in terms of what does or does not constitute an abortion.
So it is a matter of degree and has nothing to do with whether it is logical.
Section 2(1) simply states, "No person shall carry out or effect and abortion in the State." That has been defined as the intentional destruction of unborn human life which is then qualified in subsection (2). Therefore, there is no need for further qualification. One does not have to do so.
If that is the case then what is the reason for qualifying it at all by the first phrase?
It has to be qualified in terms of facilitating the right to life of the mother. This means that people would have legal certainty in terms of the procedures they are carrying out.
So it is about legal certainty. That is all I am asking.
That is correct in terms of section 1(2). Our legal advice on the Constitution is to the effect that the amendment is not necessary and I agree. I do not see how this amendment will add to the Bill or further clarify matters. The situation is clear as it is. The Deputy and I will have to disagree on this point.
I do not wish to dwell on this issue which is not a major subject of dispute. However, from the point of view of consistency, section 1(1) defines abortion and section 1(2) deals with the exclusions. Subsection 1(2) is qualified by the phrase, "Notwithstanding subsection (1) of this section.” The Minister is suggesting my amendment is unnecessary but I disagree as it is necessary to make clear what is being done from one section to the next, and how the two relate to each other. Is that not correct?
Section 2(1) is interpreted in the context of sections 1(1) and 1(2).
That is correct. It defines the means by which they relate to each other.
Yes.
I am suggesting the need to define how section 2(1), which deals with the offence, relates to the definition of abortion and the exclusion. This would clarify what is excluded from being an offence. What is good for the goose, is good for the gander. The Minister is not going to accept the amendment and I am not going to press it.
I made it clear that there is no need to accept the amendment.
The Minister rightly referred——
Section 1(1) states, "In this Act, "abortion" means . . . ". Therefore, one does not have to keep defining it.
That is not what I am talking about. I am referring to the phrase, "Notwithstanding subsection (1) of this section.” The Bill then spells out the exclusions. I am suggesting that section 2(1) outlines the intention which is to create an offence of abortion. This should be linked back so it is clear that certain types of abortion are not offences and others are offences.
The situation is clear because section 1(1) states, "In this Act, "abortion" means . . ." The situation is very clear.
The Minister thinks it is clear, but that is not the case. Let me put it to him as follows: the Bill refers to a medical procedure which is abortion but is not termed as such. It is not regarded as a criminal abortion and the word "abortion" is not used. However, the current wording states,
Notwithstanding subsection (1) of this section, abortion does not include the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended where that process is, in the reasonable opinion of the practitioner, necessary to prevent the real and substantial risk of loss of the woman’s life other than by self-destruction.
What implications could this wording have for, for example, the destruction of an embryo before implantation? I am referring to, for example, an embryo which has been developed outside the womb but which it is intended to artificially insert into the womb. What if a practitioner suggests to a woman that such a procedure would pose a risk of loss of life and she wishes him or her to destroy the embryo which has not been implanted?
Given scientific developments, including those in the past few days in the US, do we not need to be careful regarding this area? We are removing the protection for the embryo before implantation. We are presuming this is post-conception, but it could equally apply to an embryo preserved in an unnatural environment for implantation at a later stage. If the woman does not wish to go ahead with the procedure we are giving the green light for the embryo to be destroyed. This takes us into peculiar waters.
That is the reason I established the Commission on Assisted Human Reproduction. This is a complex area which is outside the scope of this legislation.
During the debate the Minister regularly raised the issue of the harmonious interpretation of the Constitution.
That is not my term, it is judicial term.
It is a court doctrine. If that is the case then when the court considers the issue of what is to happen to life outside the womb in a laboratory, on what legislation will it base its deliberations? The Minister rightly appointed a review group to examine this issue. This is a complex area which I have begun to examine. There is no legislation for this area so the court may be drawn to consider this Bill under which a medical practitioner is to be given the right to destroy human life where there is a real risk of loss of a woman's life. What is the position if a husband and wife decide that the wife should become pregnant by these means but, because a medical condition is discovered in the meantime, they decide not to proceed with the insertion? Is it a possible interpretation of the legislation that, under this subsection, a medical practitioner would have the right to terminate the embryo?
No.
Is the Minister certain? I wish I was as sure as the Minister. The problem is that the term "unborn" is not defined anywhere in Article 40.3.3° or the legislation. I mentioned a possibility regarding a definition of "unborn" as life created from conception.
This is the Protection of Human Life in Pregnancy Bill.
Yes.
It does not encompass every issue and the Deputy is correct that it does not attempt to define human life. We made that clear from the start. We are introducing a statute to prohibit abortion after implantation in the womb of a woman and the term "abortion" is defined in the Bill. People keep returning to the issue of a definition of human life, but the Bill does not define when human life begins. It defines abortion for the purpose of the Act.
I accept that.
That is the point.
If this legislation was not introduced, the 1861 Act would offer protection in any event.
The current framework was ultimately created by the Supreme Court judgment in the X case. That, de facto, is the legal framework.
No.
There is the Offences Against the Person Act but if people wanted to push the boat out now——
If the definition was not included, the crime of abortion would be defined in the 1861 Act as procuring a miscarriage.
Yes.
There is a definition which the Minister is changing. This is a significant point. The Minister said with great certainty that my point in relation to section 1(2) is incorrect because we are discussing human life in pregnancy. What else would a husband and wife be doing other than trying to bring about a pregnancy with which they needed assistance because of reproductive problems on the part of him or her? That is related to pregnancy; it is what they are trying to achieve. However, if they discovered between the time the egg is fertilised and its insertion in the womb of the mother that the mother had a medical condition, could they terminate under this legislation?
Matters are much more complex than that because people in such situations would take the advice of their consultant and professionals in the field before engaging in any procedures. In such circumstances, the general scenario in terms of the health of both parties and the prospect of success are discussed. I cannot envisage the legislation impacting on such cases.
The Minister has set up 68 review groups but I agree with the group——
Hallelujah.
——which has been established to consider this complex issue. I have considered it and I realise it is complex and that the Minister was right to set up the group. Arising from the group's report, I presume framework legislation will be introduced with the purpose of protecting the embryo and to set the circumstances in which research, such as stem cell research, can be carried out. Can the Minister guarantee the committee that when those proposals are brought forward and the Houses pass the legislation, it will not be challenged on the basis of its constitutionality because of the provisions of this Bill?
Not this Bill, but perhaps Article 40.3.3°. I cannot guarantee anything like that because groups can immediately bring any legislation passed by the Houses to the Supreme Court given the complexities involved and its nature. The Deputy is correct that the situation is evolving rapidly. There are balances in the field of embryo research. In my view, stem cell research could have a benign impact on humankind generally, but others are on the wrong side of the ethics equation in some respects in terms of experimentation, etc. Experts on both sides of the debate have been discussing the matter at international level for some time. There is a need for a strong ethical framework in this area.
The public should be much more informed about these issues. The media is doing its best to report these issues, but they tend to feature as headlines in newspapers. I am not sure that the public is up to speed on what is happening.
No Legislature is up to speed on it.
Yes.
The Minister put his finger on the point I was making, although he may not have intended to do so. He said that under Article 40.3.3° there would be protection for the unborn and laws could be drawn up. The potential difficulty is that Article 40.3.3° is being amended or qualified by this procedure.
We are not amending Article 40.3.3°.
We are qualifying it. It is a follow on from Article 40.3.3°. This relates to the point I made in relation to the First Schedule that it is a reduction in the defence and vindication of the right of the unborn. It is only being protected now. The Minister may wish to consider this aspect and perhaps he should think about it in the context of the report of the committee he established to examine the whole issue. It is a potential mine field. I know that is not the Minister's intention, but that may be the result. He should be extremely careful and take advice on it.
Tarraingíodh siar an leasú faoi chead.
Tairgim leasú a 14:
I leathanach 9, líne 12, "(nó, i gcás éigeandála liachta agus i gcás ina gcreideann an cleachtóir lena mbaineann gur gá sin ar mhaithe le bainistiú leas a othair nó a hothair, in aon áit eile)" a chur isteach i ndiaidh "fhormheasta".
I move amendment No. 14:
In page 8, line 12, after "place" to insert "(or, in case of medical emergency and where the practitioner concerned believes the management of the welfare of his or her patient so requires, any other place)".
The thinking behind this amendment is obvious. In the definition of what are abortions, but which will not be defined as abortions under this legislation, it states that abortion does not include the carrying out of a medical procedure by a medical practitioner at an approved place. I ask the Minister to clarify this point because the term "an approved place" is unclear. It will be a place in the State approved for the time being by order as being suitable for the purposes of this section. I probably should have taken legal advice on this matter, but I did not do so.
However, I am not clear about how the provision that an approved place means a place in the State approved for the time being by order as being suitable will work. It will be up to the Minister to make an order to define an approved place. This sensitive part of the Bill will be unknown. When the people are asked to vote on this matter, will the order have been published and passed by the Oireachtas? Will it be left in limbo? Will the order become part of the Constitution given that the Bill will be incorporated in the Constitution once it is agreed by the Oireachtas, which is likely? What happens to the order? Will it be part of the Constitution?
We are not only considering inserting an amendment in the Constitution that contradicts an existing constitutional provision, but also inserting an Act in the Constitution for the first time in a way that creates the potential for legal challenge. Will the order also be included? What is the relationship between the order and the Constitution? If it is not included in the Constitution, can it be changed? An approved place can mean anything one likes. What concerns me is that, having gone to the trouble to exclude certain medical procedures from the Act and calling them something else, even though they constitute abortion, it is possible that the order would proscribe the approved places in a way that would be detrimental to the very limited protections to women's lives that are allowed for under this subsection. If, for example, a woman was geographically distant from one of the major maternity hospitals in Dublin and there was a physical threat to her life surely, unless we put in the amendment I have put forward, the likelihood is that even if the medical practitioner dealing with her has the expertise to save her life the woman would lose her life or at least be at severe risk because the approved places are geographically beyond reach. This may be a far-fetched scenario. Conditions such as Eisenmenger syndrome which are very rare are usually treated by a consultant in one of the major maternity hospitals in Dublin. However, we cannot presume that women who are at risk in this way will conveniently make sure that they are in the right place at all times. It is very important that the Minister first of all clarifies how this stands in relation to the Constitution and, second, that he accepts the protection we are proposing since this Bill is largely based, rightly or wrongly, on medical opinion.
Given that the essential nature of this Bill is that the medical practitioner makes the clinical judgment that a woman's life is at risk, the approved place is of lesser importance. However, a situation could arise where a medical practitioner making a clinical judgment on the necessity of a medical procedure, which according to this Bill is not an abortion but is in fact, could not carry it out even though he or she knows it poses the best chance of saving a woman's life. There are ethical questions here for the medical practitioner - I will refer again to the ethical situation in terms of the Medical Council guidelines. These guidelines state that refusal by a doctor to treat a woman with serious illness because she is pregnant would be grounds for complaint and could be considered to be professional misconduct. The Minister is allowing for treatment to be defined in this case as a medical procedure and not abortion. That salves a lot of consciences.
However, there is still the proviso that it must be carried out at an approved place. What happens if a medical practitioner has to face this dilemma outside the context of an approved place, for example, one of the major maternity hospitals in Dublin? What is the medical practitioner to do? More importantly, what is the woman to expect by right, since the Minister maintains that her life is protected under this part of the Bill? The problem is that it is circumscribed by the definition of an approved place. There is no room for judgment by the medical practitioner to determine, in a case of medical emergency and where the practitioner concerned believes the management of the welfare of his or her patient so requires, that it can be any other place. What happens if the judgment of a hotshot consultant obstetrician in a location such as the Aran Islands is that he or she knows how to save a woman's life and, on the grounds of his or her Hippocratic oath and ethical training, carries out an emergency procedure to save the woman's life? Will he or she face 12 years in prison? Is that what we are talking about? This is really extraordinary.
We should remember that the one thing we know about the issue of abortion is that the extraordinary happens and has happened in two cases already. We must, therefore, take very seriously possibilities being presented in this Bill which could have enormous implications in that a medical practitioner appearing before a judge could be told that the judge would love to help but that he, the medical practitioner, is a goner.
I support Deputy McManus's amendment. Section 1(3) defines an approved place but does not state who will approve it.
The Minister will make an order and the Oireachtas will approve it.
Is that for each approved place?
The Minister will make orders which will list the hospitals that are so approved. On foot of amendments being brought forward, the Oireachtas will have the opportunity to affirm those orders.
Can the Minister inform us what is the likely number and the likely location of approved places? Does he accept the need to overcome the difficulties outlined by Deputy McManus? I refer specifically to where there is a substantial risk to a woman's life and a medical practitioner, on the basis of his Hippocratic oath, decides to intervene to save her life and the result is the death of the unborn child. If the location where this occurs is not one of those on the Minister's list to be put before the Oireachtas, that medical practitioner would have breached the Act and be subject to the sanctions of the Act, namely, up to 12 years in prison.
There is a difficulty with this section. I was not present for some of the earlier debate in Committee but, before we know what this section is about, there is a need to clarify how many approved places we are to have. Are they to be all of the hospitals in the State? Are to be the maternity hospitals in the State? Are they to be extended to general practitioners' offices in particular circumstances? Are they to be private clinics, public hospitals only, private hospitals only? There is a need, first, to clarify what an approved place is. My reading of the legislation as proposed by the Minister is that the definition is so broad that an approved place will be what the Minister wants to designate as an approved place, provided it is approved by the Oireachtas.
Deputy McManus has listed some of the difficulties that arise, but I want to raise others that may not have been touched upon. If we are to assume that only some hospitals in the State will be designated as approved places, what is the position of a medical practitioner who provides essential emergency medical treatment to a person where it is not known, not only to the medical practitioner but to the patient, that she is in the early weeks of pregnancy and as a consequence of this the pregnancy is terminated?
Is the Deputy referring to a situation where know one knows?
Yes. I am referring to a situation where the mother, the hospital and the doctor do not know she is pregnant, where medical treatment is provided and where, as a consequence, it becomes apparent shortly thereafter that her pregnancy has been terminated. Will the medical practitioner who operated in such a case be liable to a term of 12 years imprisonment?
Absolutely not.
In the context of the legislation, the termination in such a case would have been effected in a place that is not an approved place.
The issue of the intention of destruction would come into play. In such a case, the termination would not have been intentional in anyone's opinion and, therefore, no one could be prosecuted. Sections 1(1) and 2(2) would apply.
What would happen if a medical practitioner did not, before providing medical treatment, either ask whether a woman was pregnant or have a pregnancy test carried out? Would intention be assumed because the practitioner was reckless as to the consequences? I am raising issues which I believe are serious in nature. Could the medical practitioner to whom I refer find himself or herself the subject of a prosecution because someone with a particular perspective on this issue seeks to ensure that they will be prosecuted?
What is the position of a medical practitioner who comes across a road traffic accident involving a woman in the early stages of pregnancy and who, by his or her intervention to safe the life of that person at the site of the accident, terminates that pregnancy? What would be the position if a person suffered a miscarriage shortly after receiving medical treatment? The medical practitioner in such a case might know or believe that the treatment had nothing to do with the miscarriage. However, the woman involved, who might be distraught as a consequence of the miscarriage, might maintain that it was a consequence of the medical treatment provided by the practitioner. Will we be faced with a situation where matters of this nature might eventually come before the courts in the form of a civil legal action in the courts? There might be claims for damages in such cases. If someone, shortly after receiving medical treatment, suffers a miscarriage - which the patient believes to be related to the medical treatment but which the medical practitioner says had no relationship to that treatment - will the Garda Síochána have to be called in to investigate whether the medical practitioner involved should be prosecuted? What consideration has been given to that matter?
As Deputy McManus stated, we are in an area of great danger. Some of the suggestions I have put forward may sound esoteric. However, I recall writing a novel entitled Laura in 1989 and one of the main characters in it was a fictitious secretary working in the Houses who became pregnant. One of the other characters was a fictitious Deputy who was responsible for her becoming pregnant.
Was he a fictitious rural or urban Deputy?
In the novel, the Deputy was portrayed as urging the Government to enact legislation to prohibit pregnant Irish women, whom it was believed might terminate their pregnancies outside the State, from travelling abroad. As already stated, the novel was written in 1989 when the idea of a woman being prohibited from travelling abroad because she was pregnant was regarded as taking the issues and difficulties that arise in this area a little too far. Three years later the X case arose and the Attorney General took out an injunction to prevent a pregnant girl who had been the victim of statutory rape from leaving the State to effect a termination in England. Not only were the contents of the novel not bizarre, they actually became reality. I do not believe that some of the conundrums to which I refer are any less likely to become reality, particularly when one considers the actions taken on behalf of the State in the X case in 1992.
If it is not the Minister's intention to approve all hospitals in the State within the terms of the legislation, there is a reasonable possibility that at some stage a patient will be brought, in extremis, to a hospital that is not approved where a medical intervention will be required, the natural consequence of which will be to effect an abortion. I accept that we are engaging in Jesuitical language to try to work out what is and what is not an abortion. We are reinventing the English language in a manner Franz Kafka would have appreciated. Kafka would be able to write an entirely new novel based on the way we are redefining the English language in the Bill.
What will happen to a medical practitioner who is confronted by a patient whose life is at risk, who knows that the medical intervention will terminate her pregnancy and who knows that the hospital in which he works is not approved? Will the Minister for Health and Children be contacted and urged to bring before the Dáil in the next five minutes a statutory instrument for approval so that a medical intervention can be effected to save the young woman's life and ensure that the medical practitioner will not be at risk of being investigated by the Garda Síochána or prosecuted by the Director of Public Prosecutions? If the Minister states that we are going to approve all hospitals - including public and private - in the State, perhaps the problem will be solved. However, I am not sure that is his intention.
There are real and valid questions to be asked about what is proposed here. In my view - and this section highlights the fact - what is proposed in the legislation revisits what successive Governments have attempted. We are trying to square circles that cannot be squared. The combinations and permutations that arise in terms of possible human tragedy are so great that by trying to artificially address this issue in the constitutional manner proposed, we will create other difficulties and dilemmas which will affect real people in the real world. I am interested to hear the Minister's response to the issues I have raised and to those raised by other Members in respect of this amendment.
I wish to raise a point of order. During my contribution I quoted the Medical Council's ethical guidelines which use the words "where there is a real and substantial risk to the life of the mother" and compared them to the wording proposed in the section which refers to a "real and substantial risk of loss of the woman's life" - in Irish this is "go bhfaighidh an bhean bás". It appears that what we are proposing in the legislation and what is contained in the Medical Council's ethical guidelines are not the same. I am reliably informed by the council that it will follow its guidelines rather than the legislation. I, therefore, propose that, before we resume on this amendment tabled in Deputy McManus's name at tomorrow's meeting, we invite the director of the Medical Council to discuss this matter with us in private session. We must be clear on whether the Medical Council's ethical guidelines will fall in line with this law if it is passed. In my opinion such a meeting would be a useful exercise and after it we could resume our deliberations on the amendment.
The Minister to reply.
On what?
On the point of order.
A full response?
I am seeking a reply to the point of order. I wish to speak separately on the section.
When we resume our deliberations I wish to speak to the general debate as quickly as possible.
I also want to resume the general debate. However, the words that are being used——
I have made the position clear: the law of the land is the law of the land and the Oireachtas makes that law.
Yes, but I am concerned because I do not believe the Medical Council sees it that way.
That is a matter for the committee.
That is all I am saying.
We framed this legislation without taking on board the Medical Council's views.
Yes, but I would like an opportunity——
The Medical Council can change from year to year and it could express a different view in five years time.
That is not what the Tánaiste said.
The Tánaiste did not say that we consulted the Medical Council on this matter.
She said it flowed from the decision of the Medical Council.
It did not flow from the decision of the Medical Council.
Is the Minister saying he did not consult with the Medical Council?
With respect, the law cannot be framed on the basis of what the Medical Council might do today or in five years.
I would have thought that, with regard to issues such as the life of a mother, the Medical Council would not dictate what should happen, but that, at the very minimum, the Government would consult with it on the specifics of what is proposed.
There has been extensive consultation. The legislation flowed from the Oireachtas committee's report. The Deputy knows that.
The Oireachtas committee produced five different proposals.
It produced three.
Is the Minister suggesting that the Government has not consulted with the Medical Council regarding the implications of this proposal for it?
No. We consulted in terms of the issue of approved hospitals. That was not necessarily with the Medical Council, but with obstetricians generally and those involved.
The Minister has not consulted with the Medical Council. That is extraordinary.
Please allow the Minister to respond.
I allowed the Deputy to have his say and wish for an opportunity to make a full response without this kind of interruption. Deputy Mitchell has not even finished. I wish to make it clear that the Medical Council does not legislate for this country. That is for this committee.
I wish to refer to the amendment, but would welcome an opportunity for the committee to invite the Medical Council to address it for 30 minutes before we resume in the morning.
I question that proposal.
That is a matter for the Deputy, not the committee at this stage. If the Deputy wishes to consult with the Medical Council, he can do so.
Would the committee not benefit?
This is extraordinary. A member of the committee has made a reasonable request to seek clarification. It is clear the Minister is trying to block it.
I am not trying to block anything. How dare the Deputy suggests that. She is being political and polemic again. That is all she is at. She is playing politics with the issue.
What is the reason the Minister is getting so excited?
I am not getting excited, but I do not like people making false allegations such as the Deputy has done. It is for the committee to decide what it wishes to do.
That is my opinion.
It is a matter for the committee.
That is what it appears the Minister is doing and his reaction is over the top.
I do not like misleading comments. The Deputy has misled the committee.
We are trying to do a job of work and I am not going to be bullied by anyone in terms of expressing my views. A reasonable request has been made by the Fine Gael spokesperson regarding an issue about which he is concerned. I am not aware of the extent of this issue and wish to tease out the problems. Deputy Mitchell's idea is excellent if it is possible.
It could be done in private session.
I second Deputy Mitchell's proposal.
I propose we do so in private session at the agreed commencement time tomorrow. Committee Stage of the Bill could then resume on Deputy McManus's amendment.
We could give it 30 minutes.
With due deference, it is 1 p.m. and Deputy Mitchell is asking the Medical Council to meet the committee tomorrow. I am not willing to allow that request as I do not know that the council will be available. If members wish to consult in a private capacity, that is their right.
I wish the Medical Council to appear before the committee.
It is after 1 p.m. and I intend to adjourn the debate until 11 a.m. tomorrow.
I will resume on this issue tomorrow.
This is a another gimmick.
It is not.
The abortion of the debate.
