Given that we are about to have another vote in the House, I intend to suspend the sitting until 11.30 a.m.
Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Committee Stage (Resumed).
If the Minister was present, we could nearly finish it off,sine die.
On behalf of the select committee, I welcome the Minister for Health and Children, Deputy Martin, and his officials. Our task is to resume consideration of the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, which the select committee will consider until 6 p.m. today. At that stage if proceedings have not been concluded, in accordance with the order of the Dáil of 20 November, they shall be brought to a conclusion by one question which shall be put from the Chair and which shall, in relation to amendments, include only those set down or accepted by the Minister for Health and Children or a Minister of State nominated as substitute on his behalf. I propose also that we break for lunch between 1 p.m. and 2 p.m.
On the issue of the break, we have tabled private notice questions. Originally, the break was meant to be from 1 p.m. to 2.30 p.m. To prepare for private notice questions perhaps the break could be at the original time of 1 p.m. to 2.30 p.m.
Is that agreed?
Is that the time at which questions would be taken or would it be later?
No, it would be later.
No, it would be at 4.15 p.m.
We need to prepare for them.
Will the break be from 1 p.m. to 2.30 p.m?
We were due to break between 1 p.m. to 2.30 p.m.
Are members saying we should break between 1 p.m. and 2.30 p.m.?
Yes, the original time.
I suggest we resume at 2.15 p.m.
Is that agreed? Agreed. When we adjourned we had been considering amendment No. 14. We had pretty well exhausted consideration of that amendment.
Yes, but there was one question the Minister did not answer. Is there a precedent for a Minister varying the effect of a constitutional amendment by order?
This is setting a precedent. Why are we setting it?
I have said already this is a unique and novel approach. The people will be authorising us to do so if they vote for it.
The Minister knows my reservations about that, I expressed them at Knocklyon.
This is a unique Constitution.
It certainly is.
Given that the Minister will come back on a number of issues on Report Stage will Deputy McManus withdraw the amendment?
Tarraingíodh siar an leasú faoi chead.
We now proceed to amendmentNo. 15 in the names of Deputies McManus and Gormley. It has been decided to take it separately from amendment No. 7.
Tairgim leasú a 15:
I leathanach 9, líne 16, "seachas trí fhéindíothú" a scriosadh.
I move amendment No. 15:
In page 8, lines 15 and 16, to delete "other than by self-destruction".
I wish to explain in detail the reason I have tabled this amendment which is crucial and needs to be fully aired and discussed. The reason I am doing so is that the ruling out of suicide as a risk to life makes an artificial separation between mental and physical health that does not conform to existing medical practice. The argument that women may fake threats of suicide overlooks the fact that there are always ways of safeguarding the manner in which a doctor's or psychiatrist's discretion is exercised, for example, by providing that the risk be assessed by two practitioners or psychiatrists. There are cases, which admittedly very rare, where termination is the appropriate treatment for a woman who is pregnant and suicidal. Such cases occurred in 1992 and again in 1997. Similar cases have also occurred in Northern Ireland involving pregnant women in state care for whom termination of pregnancy was deemed the appropriate treatment due to genuine suicidal intent. In each case three medical professionals, psychiatrists or obstetricians gave evidence as to the existence of the risk to the woman concerned.
This topic arose in the various speeches made on Second Stage. I shall quote the Minister's view as reported in the Dáil Official Report of 25 October 2001, vol. 543, column 30:
To take England and Wales as an example, data from the Office for National Statistics (Abortion Statistics Annual Reference Volume) shows that, in the year 2000, more than 175,000 abortions were performed, and whereas 134 of these were performed because of a risk to the woman's life, more than 162,000, or 92%, were solely on the grounds of risk of injury to the physical or mental health of the woman. The Government is satisfied that, even though there is great public sympathy for the plight of women who find themselves with a crisis pregnancy, to provide for abortion where a woman in such a situation threatened suicide would not command widespread support and could, in effect, ultimately open the way to abortion on social grounds. The Government has therefore come to the conclusion that, notwithstanding the courts' judgments in the cases to which I have referred on the available evidence, it would not be appropriate to legislate to permit abortion where, during pregnancy, a woman threatens suicide.
It is important to note the Minister did not make it clear in that statement that in 1992 the Irish people were asked to make a judgment on this. Far from saying it would not be acceptable, they voted to ensure that suicide was kept as a grounds for abortion as a risk to a woman's life. That was done in the context where the Taoiseach of the day said that if the people did not vote in accordance with the Government's wishes, it would legislate to include suicide, which was never done.
In relation to the view expressed at the time that this question was put to the people in 1992, I wish to quote what Deputy O'Malley, a Progressive Democrat, said at that time because it seems prophetic in the sense that the inclusion of such a measure, which the Minister said could open the way for some kind of open door policy, was considered in 1992. What Deputy O'Malley said in 1992 is referred to in the Second Stage debate on this Bill. The Dáil Official Report, 25 October 2001, vol. 543, column 46 indicates that, in 1992, Deputy O'Malley stated:
Since the Supreme Court decision in the X case there has been no sudden rush to the courts by women looking for an abortion on the basis that they are suicidal. This is not a particular problem now, and there is no pressing reason to exclude it constitutionally as a basis for a termination in every case in the future. We must be willing to consider the fact that some very unusual suicide case may arise where a woman cannot for some reason or another leave the jurisdiction and where a real and unavoidable risk of self-destruction exists. For example, a young pregnant girl may become severely anorexic after a multiple rape. Such a girl with her unborn could be condemned by this amendment with the hands of the Supreme Court tied, thus preventing any sensible intervention to save her life.
It is a pity we cannot hear from Deputy O'Malley why he feels something has changed in the meantime, in that his party feels it is now possible to exclude suicide as a risk to a woman's life, given that he expressed such clear and prophetic views in 1992 when he indicated he did not expect such a measure would result in the flood gates opening. He was right - the flood gates did not open - but there was the C case. While that case was not about an anorexic girl, it was a case of severe brutality where a 13 and a half year old girl within the charge of the health board was brutalised, made pregnant and required to invoke this section in the Constitution to ensure she could access the abortion she needed.
I do not know if it is right that I should quote Deputy Dukes, but what he said on Second Stage is relevant. He states in the Official Report, 25 October 2001, vol. 543, column 64-5:
It is worth noting that there is a clear implication that a health board can form a judgment on the reality of suicidal intent - otherwise why would the Government be talking about this - something which the Government suggests it cannot or should not do itself. There is here an implicit admission of the Government's disingenuousness in the presentation of its case.
It is clear that the Government does not trust anything that might be said about her state of mind by a woman in a crisis pregnancy. That is why it intends to remove the suicidal intent basis from the Constitution. That is made very clear in the Government's response to Question No. 14 from Deputy Noonan where it is stated that it is the Government's view that:
. . . the medical consensus in the medical profession is the only thing which now stands between us and thede facto introduction of “social abortion” in this country. The legislative vacuum which now exists must be filled. If legal provision were made for suicide risk, a system of psychiatric assessment and court supervision would, almost inevitably, follow. If that were to happen, even if it were initially done on a narrow basis, the scene would be set for a gradual introduction of “social abortion” in Ireland.
What that says is that it is the Government's belief that women with crisis pregnancies and their psychiatric assessors would systematically and falsely claim suicidal intent in order to secure abortions. Such a view would be perfectly consistent with the streak of misogyny that runs all the way through the Government's responses to these questions.
It also displays a fine contempt for a particular branch of the medical profession. Furthermore, it ignores the fact that, notwithstanding the judgment in the "X" case, there has not been any evident disposition to seek abortions here on the ground of suicidal intent, in accordance with the jurisprudence. Although the law and jurisprudence state that the ground available in the "X" case is available to women here, nothing is being provided. Even if someone were to request an abortion on those grounds the service is not being made available. It is clear the Government has set its mind against taking the word of a pregnant woman or her psychiatric assessor.
The point I am making in this regard is that it is clear from the Second Stage debate that while different views are being expressed on suicide in pregnancy, no one is saying there is no such thing as the possibility of a woman being suicidal in pregnancy.
I wish to deal with the medical issues relating to that point. Irrespective of from what side of the question one is coming politically, everybody is in agreement that there is such a thing as a woman becoming suicidal in pregnancy and that despite the fact that pregnancy produces a lowering effect in terms of the risk of suicide, it does not eliminate it. It is a matter we must consider. The fact that it is a very rare occurrence does not make any difference in terms of the rights of the individual involved. It is irrelevant if there are 100 or only one of them. We need to be clear about that.
Deputy Noel Ahern, who is honest, sincere and of a pro-life persuasion, for which I respect him, was honest enough to make a point in his speech. He states in the Official Report, 25 October 2001, vol. 543 column 71:
For women and for the men involved. I cannot be perfect. I have a daughter too. With any law or guideline, either State or self-imposed, we would all like to think we would restrict temptation or pressure and stick to our deeply held principles. However, I could not say that. I cannot be sure I would not be on the plane to the UK with my daughter nor could any other person. It is not possible to be absolutely firm in one's own conviction until a problem arises.
That is a eloquent statement and one he probably had difficulty making. Did he not make a valid point in that we must apply what is presented here to our lives if we are to apply it to other people's in terms of how they should perform and conduct themselves? Can we say truthfully that if one of our daughters was suicidal and could not travel, we would wish to deny her an abortion when she needed it? If we can truthfully answer that question we can be consistent and support this proposal, but if we cannot do that, what right does anybody have to say we will legislate or attempt to legislate, which is what this is about, for other people's daughters?
We are not here as individuals. We are here representing the people who have elected us in the constituencies we represent, so in that sense other people's daughters are our daughters too. I will come back to that point because it is a central issue on which we need to be very clear. If we are saying that a suicidal woman or young girl cannot have an abortion, we are saying that about our own daughters or our grand-daughters. That is what we are committed to and that is what we have to stand over.
Political speeches were made on this issue by a Deputy who I believe would claim to be very staunchly pro-life, Deputy O'Flynn. I would like to refer to a point he made in his contribution in the Dáil debate on 8 November 2001. He stated:
What about suicide? Suicide may be a complex issue with many different causes. What was so wrong with the X case judgment was that it took the safety of an unborn human life out of the domain of medical judgments on medical threats to the mother's life and that of her child and into the domain of psychiatric assessment and even psychology in some cases. It was based, ultimately. on what a woman in a distressed state of mind was prepared to threaten to get her own way on abortion. It is quite clear that the pro-abortion people would make it known that certain psychiatrists who would be considered as pro-abortion could be relied upon to certify that a woman had suicidal tendencies in order to allow her the constitutional right to an abortion to be carried out in Ireland. She would, of course, be certified as having recovered from the suicidal tendencies once the abortion was performed. One might call it the pro-abortion Irish solution to an Irish problem.
While that speech shows there is significant prejudice against women and an extraordinary view of psychiatrists in making a false delineation between what is medical and what is psychiatric, we would not find anybody in the medical profession who would say that a psychiatrist is not a medical practitioner. Apart from these rather extreme views, however, even this Deputy is not able to say that there will never be a case where a woman who is pregnant will become suicidal. He cannot eliminate that possibility. It is a pity he did not answer the rhetorical question that Deputy Ahern had the courage to answer in his contribution. I would refer also to the contribution of Deputy Neville, who is not here this morning. I hope he returns because he made an important speech and he is obviously the most expert person in the House on suicide. I hope he will speak on this issue because it is so important.
In terms of suicide and how we can define and assess it, the fifth progress report gives us important indications about how it can be dealt with in a practical and humane way and with respect for human dignity. Some of the comments made in relation to women did not show that kind of respect, but that is probably inevitable.
In terms of the alternative that is available, and the Minister has referred to this, we need to revisit that point in the context of the amendment. The chairman of the expert review group, who was given the task of examining the Constitution in its totality and coming up with recommendations, made it very clear - he could not have been clearer - that he did not believe that the way forward was by way of another constitutional referendum. The recommendation that came back was that there should be legislation in line with the X case and within that legislation protections to make sure there was no abuse. Dr. Whitaker felt that was a manageable proposal. He did not seem to have any difficulty in terms of working out a framework whereby protections and safeguards could be put in place to protect suicidal women and, at the same time, ensure there was not an open door policy.
In page A209 of the report of the public hearings by the All-party Oireachtas Committee on the Constitution, Dr. Whitaker states:
The awkward fact is that the X case decision by the Supreme Court is now part of our law. . . I am trying to keep within the bounds of accepting that that was the decision and then trying to make it difficult to access in the doubtful cases, in other words, in the suicide cases. The devices I am proposing are hurdles set up to be crossed to make for difficulty of access than in any way implicitly accepting that doctors can decide whether there is going to be a suicide or not. Psychiatrists are probably in a better position than anyone else to offer an opinion, but that is as far as it goes.
He went on to state:
I picked up somewhere in my reading of medial evidence that the risk was very, very small amongst pregnant women . . . of suicide - it might be as low as 3% . . . The point I made was that one has to ask oneself in the case not just of pregnant women generally but women who are pregnant and victims of rape or incest, what is the risk? They might figure largely in constituting that 3%. That is the point I am making. I wouldn't get the impression that it had been ruled out completely; it's very rare, but as I rate thething . . . it's not impossible of course, but it should be perhaps evident in a particularly severe case that there was a serious likelihood of suicide.
That is Dr. Whitaker assessing, as best one can, the problem of suicide and making the point that while it is rare, it is real. He makes an additional point which is worth noting because in the debate on abortion the issues of whether a rape or incest victim should have access to abortion sometimes arise. That is not permitted under Article 40.3.3 of our Constitution, and we all understand that, but the point he is making, which we should take into account, is that in cases of rape or incest the chances of being suicidal are greater.
Taking evidence from abroad is always difficult because generally speaking, apart from countries like Afghanistan, people abroad tend to have access to abortion and, therefore, when they are suicidal they are allowed to have that abortion. In the very expert opinion of Dr. Whitaker, he is making clear that not only is there an issue of suicide that needs to be addressed, but he is pointing the way to addressing it, which is by way of legislation rather than by anything else, and certainly not by way of a constitutional amendment. He makes the point that many people would like to have a constitutional amendment, but that it does not make sense.
In the hearings we heard from Dr. Peter McKenna, the Master of the Rotunda Hospital in Dublin, and he is quoted in page 55 of the report. It is important to note that people tend to quote doctors as if they know everything. Obstetricians do not know anything about psychiatry, nor do they claim to know anything about psychiatry, and psychiatrists do not know anything about obstetrics. It is important that we understand there are certain skills and that they do not necessarily overlap. One of the striking things Dr. McKenna or one of the other Masters pointed out was that the vast majority of women seeking abortions in England never come near an obstetrician or even a family doctor.
I reiterate the point that this is the country of the unknown. It is a highly populous country populated by silent women who travel in secrecy. We are making judgments about its population without knowing anything about it other than one piece of research carried out by Trinity College. We need to bear that in mind.
Even the Master of the Rotunda, an obstetrician who is dealing with maternity cases of all kinds, including rare physical conditions like Eisenmenger's syndrome and HELLP syndrome, is not in a position to be fully aware of the circumstances in these cases generally. Dr. Peter McKenna freely admits this on page 55, which states "The committee sought to find out what was the incidence of suicide in pregnant mothers and in what ways a threat of suicide could be established as a real and substantial threat." This issue received much attention. Dr. McKenna states on the same page:
In medicine it is very dangerous to say things don't happen. I certainly was of that opinion but last year - the first time again - we had a woman - I had never seen it before - who was brought into hospital, attempted suicide quite far on in the pregnancy, and it was a very serious suicide attempt, so it can happen. When you are dealing with humans you simply can't say it never will happen. I think you are probably on fairly safe ground to say though that the incidence of suicide in pregnant women is less than in the non-pregnant female population of a comparable age. I think that probably is true but that's not the same as saying no pregnant woman will ever seriously commit suicide.
Professor Hannah McGee, who attended the committee with Dr. Geraldine Moane, a psychologist, also presented evidence. She talked about the methods which could be put in place to assess whether a woman was suicidal. There was no question in her mind that on rare occasions pregnant women become suicidal and that it was an issue which responsible people needed to address. What is striking is the difference in view between people who are trying to grapple with this problem and the Government which argues, in a very irresponsible and rather immature way, that because it is rare and there is a possibility that it might be abused, it will not be included. Women may take a slightly different view when the Government goes to the public once they realise they are being asked to give away protections for the lives of their daughters or granddaughters.
On page A259 of the report Professor McGee states:
You have heard mainly about completed suicide during pregnancy but you haven't heard, to our knowledge, about attempts of suicide during pregnancy. Our evidence would concur with the general thrust of the findings that have been presented to you that completed suicide during pregnancy is significantly reduced over and above levels in non-pregnant women of similar ages. However, the protective factor may not be as powerful as the one in 20 you've heard from the Appleby study in the early 1990s in the UK. This was based on death certification. A more recent and detailed analysis in the US in 1999 by Marsoc - we have copies if people are interested - where they were able to have completed autopsy or forensic examination in all cases shows that the risk of suicide in pregnant versus non-pregnant women reduces by about a third. So pregnant women have about a one in three chance of non-pregnant women of similar ages of committing suicide. Importantly, however, although the percentages in all of these studies are low, they represent real individuals. In the New York study, there were six women in four years and in the UK, there were 14 women in 12 years. This is more than one completed suicide per year in both systems where abortion is widely available.
With regard to attempted suicide during pregnancy there were a number of international studies. There is, for example, a nine year study in Hungary of all persons admitted for self-poisoning to a World Health Organisation collaborating centre there with expertise on self-poisoning. They found in almost 23,000 cases of poisoning by women of childbearing age that 559 of these were pregnant at the time. That is 2.4% but it is 559 women in a nine year period. Most of those women - 61% - had attempted suicide in the first two months of their pregnancy, at the time, they also concluded, where there was an early recognition of an unwanted pregnancy.
I refer to one further study of several studies referred to by Professor McGee, who states on the same page:
There is a small study in the UK, which may be closer to home, of a five partner general practice in Wales. They looked at their records for women aged 15 to 34 in 1994 and found that 12% of those women had GP records of terminations and 3.5% had records of overdoses and, if you combine them, 1.1% or 15 women in one practice had evidence of both. Most of those women were under the age of 24. There was a significant association between the likelihood of overdose and the likelihood of termination but, with a small number, it is difficult to say what the order was. If anything, the evidence suggested that the overdoses predated the terminations. For us, this combined evidence on completed and attempted suicide in different countries indicates that there are many real life settings, however small they may he in epidemiological terms, in which health and social service professionals have to work to support individual women who are at risk of attempting or completing suicide.
This again is an important point. On page A260 Professor McGee states:
Suicide or attempted suicide statistics are not routinely collated by pregnancy status so we have no evidence from which to assume that these events do not happen in this country. We have every indication that such events will be presented to individual professionals in the future. The X and C cases are evidence of this in the past. The argument that such events are rare has no bearing on the responsibility of the State to manage them, rare or otherwise. It would be our contention that the State should legislate to support and protect professionals in doing their work in this particular area.
I will return later to the conflict faced by doctors working within a framework set down by the Medical Council in the guidelines, but also governed by an ethical approach which determines that he or she must provide the necessary care for the patient. It is an important point.
On page A260 Dr. Moane states:
My point is that there are clearly established procedures for assessing the risk of suicide and for making decisions on foot of that which are carried out and implemented in practice on a regular basis which lead to decisions which involve the Mental Health Act in cases of committal. In the instance of abortion, we propose that it would be possible to make a judgment about the risk to life posed by the threat of suicide and to make a decision based on that judgment.
In any event, psychiatrists are making these judgments about people who may be suicidal. As a result of those judgments people are placed in institutions. It is, therefore, not as if judgments of this sort are not being made. It is not as if the doctrines that psychiatrists cannot be trusted or that they cannot make these judgments apply. Nothing of that nature applies when psychiatrists are judging whether a person is suicidal, whether they should be placed in an institution or whether they are suffering from another mental medical condition. We are stating, however, that in this instance we will not give them power to make judgments and state that an individual is suicidal and the treatment they need is an abortion. Everyone accepts that this may not always be the treatment required. There are circumstances - we know this from two previous cases - where the treatment needed is an abortion.
It is the case, however, that obstetricians will have the ethical confidence to be able to state that a person is experiencing a physical threat to their life, the treatment for which is abortion. Perhaps I should refer to it as the "A" word because we are not allowed, in the context of the legislation, to consider that it is abortion despite the fact that it is abortion. An obstetrician can state that the treatment required is abortion and that he or she will carry out such a procedure to save a woman's life. However, a psychiatrist will not be in a position to do so. Under the legislation, a health board will no longer be able to argue the bona fides of a case such as the C case. That is why there is a fundamental argument in favour of accepting the amendment.
Everyone has a view on the Medical Council and many questions have arisen in respect of how it operates in other areas. However, it has produced guidelines in respect of this area which are clear. These state that a refusal by a doctor to treat a woman with a serious illness because she is pregnant would be grounds for complaint and could be considered professional misconduct. It is interesting to note that the council does not discriminate between mental and physical illnesses. If newspaper reports are to be believed - I have no reason to doubt them - when this issue was raised at the Medical Council in the context of drawing up the guidelines, it was decided that it would not deal with the issue of suicide, that it would not discriminate, one way or the other, on the issue of suicide or mental illness, that the guidelines stood in relation to medical practitioners who are registered with the council and that this is the guideline for ethical practice.
What will happen if a consultant psychiatrist reaches the considered view that the ending of a pregnancy is necessary to save the life of a mother because of the risk of suicide but, under the proposed new law, this opinion could not be acted upon? That is an important issue and it has not been given the consideration it deserves in terms of ensuring that doctors can act both legally and ethically in their work. The job they do is difficult enough without making it even more difficult.
One of the issues which has arisen on numerous occasions, in respect of which a sufficient answer has not been given - a proper answer was not provided at the press conference and one has not been forthcoming since then - is the C case. That case related to a 13 year old girl who was in the charge of a health board and who came from an extremely dysfunctional family. She became pregnant as a result of rape and was placed in the care of the health board. The board sought permission from the District Court to take her abroad for an abortion and that is how the case was initiated.
The board asked the court to exercise its power under section 17(4) of the Childcare Act, 1991, to make a direction permitting her to be brought abroad for a termination of her pregnancy. The District Court heard the evidence of two psychiatrists who had examined the girl. In his testimony, Dr. Gerry Byrne told the court of the girl's suicidal thoughts arising from her pregnancy and expressed his clinical judgment that if she did not have her pregnancy terminated, she would act on them. He said she faced a very significant risk to her life.
The District Court duly made the order permitting the health board to bring C to England for a termination but this order was challenged by C's parents before the High Court. In his judgment striking down their challenge, Judge Geoghegan reviewed the freedom of travel guarantee in Article 40.3.3° and held that this did not give some new substantial right but rather was intended to prevent injunctions against travel or having an abortion abroad. He said that the amended Constitution did not now confer a right to abortion outside of Ireland; it merely prevented injunctions against travelling for that purpose and, thus, under the travel amendment, a court could not make an order authorising travel to another jurisdiction for an abortion that was not lawful under the Irish Constitution. He held this interpretation of the travel guarantee to be in conformity with the view of the Supreme Court in the Article 26 reference relating to the Information (Termination of Pregnancies) Bill, 1995, case.
The only reason the judge allowed the District Court order enabling the health board to bring C abroad for a termination was because she was suicidal. According to the psychiatric evidence, the continuation of her pregnancy posed a threat to her life which could only be avoided by the termination of her pregnancy. The judge stated that he would not have permitted such an order had she not been suicidal. The abortion would not have been lawful in this jurisdiction, so the basis of the decision in the C case was the ruling in the X case in relation to suicide. That is an important point and no comment on it was forthcoming from the Government when the Taoiseach, the Tánaiste, the Minister for Health and Children and the Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, lined up and assured us that this was the way forward, that some kind of consensus exists, that there were no dangers or possibilities for injustice, that everything would be all right and that the judgment in the C case would be protected. That is not true.
That is right.
Judge Geoghegan's judgment - unfortunately I do not have it in my possession but I will have it with me on the next occasion we meet - was very clear. It was not a case that C had the right to travel. She had the right to an abortion because her life was at risk through suicide. That judgment is on the record and since it was handed down many people, such as those involved in the legal field and ordinary people who are concerned about this matter, have asked what would happen if a similar case came before the courts. The Attorney General seems to believe that such an eventuality would not be a problem.
I hope the Minister for Health and Children will not state in his reply that the legal advice he has received indicates that the judgment in the C case will be protected in the future. That is not acceptable. There is a right enshrined in our Constitution to which Judge Geoghegan referred. This is not the right to travel, it is the right to have an abortion and because the girl in the C case had the right to an abortion in Ireland, she had the right to travel to England to have it. If the right to have an abortion in Ireland is lost, the corresponding right to have it in England will also be lost.
The Minister for Health and Children must explain, in a way that makes sense, why, in the future, we would say to the girl in the C case: "We want you to kill yourself rather than have an abortion." Why did we inform her a few years ago that we would prefer that she had an abortion rather than kill herself? What moral, ethical or cultural change has occurred to allow us say to a girl who is 13.5 years old and whose life has been an experience of brutality, oppression, rape and abuse that we would really prefer she end that life than to have an abortion? My understanding is that the girl in the C case is doing well because she has a future which she would not have had if she had committed suicide. That is the fundamental choice that we have to make if the Government persists with this approach and we need to be fully informed on the issue.
I know the Chairman is uneasy with the time I am taking but I have to do this.
The Deputy is arguing very cogently.
I would just like to point out some facts about the level of suicide in Ireland. The director of the national suicide research foundation, Paul Corcoran, who was pointing out the rapidly increasing suicide rate, stated "The Irish suicide rate is fast becoming one of the worst in the world. It is now comparable with such traditional blackspots as northern Scandinavia and Arctic Russia". He pointed out that the largest number of people committing suicide was male but he also pointed out that 40 children under the age of 15 had killed themselves since 1991. More than 25% of all Irish suicides involve those under the age of 24 so we are talking mainly about either young or very young males and females who are losing their lives as a consequence of a failure to intervene or to assist in some way people suffering from depression, mental illness or the simple loss of desire to continue going. That fact is very distressing.
We need to be clear that, as Professor McGee says, it is not about numbers but individuals. Much work has been done, though not as much as there should have been, on the issue of suicide and pregnancy. It is quite clear that pregnancy reduces the level of risk of suicide, as is shown in studies from America. The result of the standardised maternity ratio for suicide during pregnancy was 0.33. That result shows that the number of suicides of pregnant women was only one third of that expected. It seems clear therefore that there is only one third the risk of suicide among pregnant women compared to women who are not pregnant.
As people become more familiar with what actually happens in pregnancy they learn of one of the aspects of which many of us are unaware - certainly it was a surprise to me - namely, depression. We know that suicide can follow if somebody is acutely depressed and research now suggests that women are more likely to become depressed while pregnant than after their babies are born. Most of us presumed that, like the baby blues, depression was much more likely to come after pregnancy. It is now evident that depression is more common prior to delivery of the baby and that is not generally known. The level of depression rises in late pregnancy but it also exists in early pregnancy.
These results are from a study done in the Avon area of over 9,000 women and they show the average scores in relation to depression were higher during pregnancy than after the birth. At 18 weeks, 11.8% were suffering from depression. That is a significant figure in terms of ante-natal depression. It does not imply that they all become suicidal but it is a risk factor and the point made by the research is that we need to understand that pregnant women face a life-altering experience. We all hope that pregnant women look forward to having their baby but the woman does not look forward to the baby's arrival in every case. It may be a crisis pregnancy of extreme proportions where, for example, the father of the baby raped the woman, or it may be a case of incest. It is very likely that acute depression will set in as a result of the desperation felt by people pregnant in those circumstances.
A UK Department of Health publication entitled "Why Mothers Die" contains a paper on the psychiatric causes of death and gives details that were collected in relation to maternal suicide. Details were available for eight cases of suicide considered to be indirect maternal deaths and there was a death certificate for a ninth, hence unevaluated, case. Five of the indirect deaths occurred during pregnancy. An important objective would be to improve the identification of risk factors for maternal suicide during pregnancy and the entire first post-natal year.
The paper examines various cases and tries to see how the factors that may lead to suicide can be seen, understood and treated. The focus of the research is to find ways of ensuring that those pregnant women who may become suicidal can be reached on time. I doubt we have such a parallel work in this country so we are dependent on UK research. However, we do need to look at the individual cases. The first case in this paper was the case of a woman who having taken an overdose of paracetamol was admitted in a coma during the first trimester of pregnancy. She aborted while unconscious and died of acute cardio-respiratory and liver failure. She had been seen only once prior to the overdose and that was during the previous week for booking by a community midwife. From the little information available it appeared she had previous pregnancies that had not gone to term but her records provided no further information.
In a second case the pregnant woman was experiencing domestic difficulties and had a young child. She had a history of substance abuse, was maintained on methadone and was HIV positive. She had been admitted to a medical ward in the early weeks of this pregnancy and a termination had been arranged. Despite her problems she was receiving good support from her family and the community AIDS team and during her brief stay in the medical ward she gave no indication of depression or suicidal ideas. A week after admission she was found hanged.
The third case is of an older singleprimaparous woman had a long history of depression, alcohol dependence and substance abuse. She had taken several overdoses in the previous years and a few days before her death early in her pregnancy had been admitted to hospital unconscious having taken another overdose. She had been followed up regularly by her GP and daily by the community drug and alcohol team. She was ambivalent about accepting admission for detoxification. She was unemployed and in debt and although it was recorded that she had an earlier long-term relationship there was no information about the circumstances of this conception and pregnancy. She had not yet started ante-natal care. She was found dead at home by a friend and there appears to be no post-mortem examination. The most likely cause of death was probably an overdose of drugs or alcohol.
Similarly, little information is available concerning the fourth case. This was a youngprimapara with a recent history of depression who was taking anti-depressant medication at the time of conception. She had discontinued this by the time of booking. She was not perceived as being depressed at this stage in her pregnancy either by her GP or community midwife, who, presumably, were responsible for much of her ante-natal care. Apparently, she did not seek specific help. She hanged herself in the second trimester of pregnancy.
The fifth case was that of another singleprimagravida who was known to suffer from schizophrenia. She had received depot anti-psychotic medication from her GP and was being monitored by the community psychiatric team. She appeared happy to be pregnant and in mid-trimester she was admitted to psychiatric hospital, having taken an overdose following an argument with her boyfriend. Five days later, she left hospital against advice and was followed up by the community psychiatric nurse. Her dose had been slightly reduced but it is doubtful if this would have had a significant detrimental effect on her mental state or if the drug was rendered any less potentially harmful to the foetus. This patient was known to have taken overdoses in the past and she had previously threatened to kill herself by jumping from a height. She was found dead with head injuries some weeks later, having fallen from the building in which she lived.
I do not say that any of these deaths could have been prevented by an abortion, but I say without doubt that these were suicides while women were pregnant. The issue of suicide in pregnancy is real, important and must be taken into account in our deliberations and in terms of taking away rights that such Irish women have now. We must safeguard the protection for sick, distressed and disturbed women who may be in the rare but real situation where an abortion is the treatment, as these details show.
I received the health strategy document with its commitments on suicide prevention and mental health. Suicide prevention includes the C case and other girls like her. We cannot exclude young girls and say that they do not matter because they are female. The Minister made a commitment in the health strategy but is now saying that when he talks about suicide prevention, he does not include the C case nor other girls who will follow. We are saying that they are different. If a person is suicidal from depression, schizophrenia or another mental illness, he or she will be looked after, but if pregnant, and the professional advice is that the pregnancy is deepening the depression to the point of suicide, then we do not have to listen to or treat her. The section on women's health says all the right things about women, but does not say that suicidal pregnant women are excluded. To be accurate, it should spell this out because it is a new departure. The Minister's legacy will be a varied one but the proposed legislation to take away women's rights in a matter of life and death will impact most on society.
The Minister must answer the question I raised at the beginning. If the Minister has had anyone close to him die from suicide - and I hope that he has not - then he will know there is a burden of responsibility and questions that never goes away. Could I have done something? If I had been in the right place at the right time, could I have ensured that the person continued to live? It is a burden that is particularly excruciating for parents whose child commits suicide. We are talking specifically about young women, most of whose parents are still alive. We should put ourselves in their position and ask ourselves if it was our daughter, would we want a constitutional and legislative framework which prevents us from providing her with a termination that she needs, as the C case did?
Will we say to a girl in this situation that we will provide what the professionals say she needs or will we say that, even if it was our own daughter, we want to change the constitutional protection so that she may not have a termination? Are we saying that we would prefer a girl to kill herself rather than have a termination? The Minister must answer that. I would not take that view and unless we can apply the law to ourselves, we do not have the right to create laws for others. That is why I tabled the amendment.
The issue raised by Deputy McManus in this amendment is the core issue of this debate. It is the only part of the Government's proposal that requires a referendum because it amends the Constitution. The rest of the Bill consists of actions that could be done by legislative means without a referendum.
I am not sure that I can speak with authority but I suspect that the reason we have all the surrounding material in this Bill and the odd procedure is to divert attention away from the fact that there is only one constitutional issue. It is a proposal that will row back on the X case judgment and, despite denials, was actually put to the people in 1992 and they rejected it. That is not a sufficient argument as we go back to the people from time to time. I do not deny that people might want to revisit the issue and have another discussion on it, but I object to the fact that a simple proposal is bound up in many other things that are not relevant.
Deputy McManus asked a most important question, which I have not heard answered anywhere. She asked what moral, ethical or cultural change has occurred since 1992 to make it necessary to revisit this issue. She did not ask what legal or legislative changes had taken place. She did not even ask what any judge had said about it in the meantime. However, she has asked the basic question as to what moral, ethical or cultural change has occurred to make it necessary now to revisit this. If I could venture an answer, I would have to say there has been none. I cannot think of anything that has happened since 1992 which would suggest there is any reason for taking a different view about this issue now than we did then. I cannot remember any moral events or any ethical development. I certainly cannot remember any cultural upheaval that could be brought forward as a reason to revisit this issue.
This is the core issue and I am grateful to Deputy McManus for having recalled what I said in the debate on Second Stage. I am sure that you, Chairman, are also grateful because now that she has read it into the record, I do not need to say it all again. Nothing I heard since I spoke in those terms on Second Stage gives me any reason to change my view of these issues. I have been listening very carefully to what has been said. Nothing that has been said since then would cause me in any way to change my view that no convincing reason has been given for altering the stance we took on this issue in 1992.
One of the bases put forward for doing things in this way is the very odd proposition that we should not believe psychiatrists and pregnant women who make the case that a pregnant woman is suicidal and that that intent is a danger to her life. I have heard people, who may or may not be well informed, commenting on the fact that psychiatrists frequently disagree among themselves on issues, and I have no doubt they do. However, there are many other settings in which we seem to have no difficulty in taking the advice of psychiatric practitioners. Deputy McManus has mentioned some of them. For example, we find that psychiatric advice is accepted in courts in the context of victim reports. It is accepted in courts as evidence as to whether a person is fit to plead. It is accepted in courts as a relevant consideration even in deciding on a verdict of the court. It is very commonly used in our probation and welfare services. It is used as a basis for committing people or for handing people over to the care of particular kinds of institutions. In all of these areas we seem to have no great difficulty in principle or in practice in accepting the validity of advice given to us by psychiatrists.
I know that advice is not always taken. Courts and others, who listen to this advice, have to come to their own conclusions on the basis of the law or whatever other practical considerations determine the factors they take into account in making their decisions. However, in no other area where psychiatric advice is relevant and taken as a matter of course do we seem to have any difficulty in principle in accepting what the French callle bien-fondé of the advice, that is its legitimacy, relevance and the degree of expertise that goes into it.
In this one area why should there be a difficulty in accepting psychiatric advice? In an area that is so intimately connected with both the life of a mother and the life of another person in the womb, why do we have any reason to doubt the kind of advice we are getting? In this part of the medical profession, why is there a subtext in the comments we hear which suggests for some reason psychiatrists are less ethical in the practice of their profession than anybody else?
The proposition before us is that if we accept suicidal intent on the part of a pregnant woman, supported by the advice of a psychiatrist, as grounds for an abortion, pregnant women and their psychiatric advisers will systematically pretend they are suicidal in order to be enabled to get an abortion.
A social abortion.
A "social" abortion. As I said in another place, this is a most demeaning phrase and one that I do not think adds anything to the argument. Why should we be asked to assume that psychiatrists in this case would not act ethically? That is the argument that is made. It is argued that psychiatric advice of evidence of suicidal intent opens the door to "social" abortion and opens the door to abortion on demand. No evidence has been adduced for that. It is an assertion that is made, apparently in the expectation that it will be accepted.
I am not medically experienced and am a layman in these issues. However, there are different views in different areas of the medical profession. I recently listened to a fascinating discussion on the radio between a number of psychiatrists on their different approaches to the problems of identifying and dealing with depression. They were having quite an argument because they started from different points and they came to different conclusions about treatments.
Of course, I thought to myself, doctors differ and patients die. However, we all know there is no branch of the medical profession where there are not arguments about diagnosis, the conclusions that can be drawn from diagnosis and the best way of treating people. Ultimately we have faith in our medical practitioners and above all we accept by and large ethical standards are taken very seriously by them. We tend to accept a medical practitioner's particular view of a person's condition, unless the contrary can be proven. I see no reason why we should not apply that to the kind of psychiatric advice we get in this context.
Those who make the argument against suicidal intent as a ground for abortion on the basis that this will become a systematic progression to "social" or open-door abortion are doing a disservice to the medical profession and an even greater disservice to the women about whom they are talking and they are adding nothing of any value to our consideration of what is a very difficult and important issue.
I paid close attention to what Deputy McManus said. I find a very marked contrast between the cogency and seriousness of the case made by her and the kinds of responses so far from the Government. I looked back at the responses given by the Government to questions raised by Deputy Michael Noonan. I am looking at the letter dated 19 October sent to Deputy Noonan by the Taoiseach. If this is the core of the Government's case, it is extremely weak.
If I may, a Chathaoirligh, I intend to look at the various reasons adduced by the Government for taking the course it has. Deputy Noonan's Question No. 7 asks how it was anticipated that these Government proposals would impinge on the rights of the unborn and the mother already identified in the Constitution. I find a number of worrying aspects to the reply. On page 6 of the letter, part of the answer states:
The only occasions upon which it has ever been suggested that threat or risk of suicide was a justification for having an abortion within the State were occasions upon which individual women were being prevented against their wishes from exercising the freedom to travel to another state. There is no significant body of opinion that abortion is effective to avert risk of suicide in any other context or case.
This raises a series of issues. While that may be the case, it is a long way from the conclusion that cases where women were being prevented from travelling were the only ones where women might have been suicidal because of a crisis pregnancy, yet the Government seems to suggest that it was only because those women were being prevented from travelling abroad that suicide was an issue. At the very least, one is entitled to suspect that the suicidal intent would have been an issue in those cases.
What does the statement, "There is no significant body of opinion that abortion is effective to avert risk of suicide in any other context or case," mean? Does it mean there is no significant body of opinion that abortion is effective to avert risk of suicide where they are not being prevented from travelling against their wishes? That may be the case, but so what? It does not have any relevance to the specific case about which we are talking. It does not have any relevance to all the other cases there might be, as was clearly pointed out by Deputy McManus. That statement does not add anything to our wisdom. It is irrelevant. The Government's answer is entirely beside the point. There may be some truth in what it states, but it is not relevant to the issue or question we are making.
The only occasions upon which it has ever been suggested that the threat or risk of suicide was a justification for having an abortion were the X and C cases. However, that does not necessarily mean that the only cases where this risk arises are ones of that type. Deputy McManus pointed out there are numerous circumstances in which it can be an issue, not where it is an issue. If it can be an issue, our legislation should take account of it. If the Government has its way, our legislation will no longer take account of it without any moral, ethical or cultural change justifying it.
The Taoiseach said the Government's proposals have been specifically drafted with a view to ensuring the non-recognition of the risk of suicide as a ground for a lawful termination of the life of the unborn in Ireland does not result in persons who would otherwise be free to travel abroad being refused permission in any circumstance by any court exercising personal jurisdiction over them from so doing. That is what the jurisprudence already states. I find it interesting that the reference is to the risk of suicide as a ground for a lawful termination of the life of the unborn in Ireland, not a lawful termination of the life of the unborn. The Government seems to accept there is this risk and that people will travel abroad when they feel it. However, it is stating they cannot do it here, not that they cannot do it, they should not do it or that there is anything wrong with it. That is the position with this legislation. People cannot do it here, but they can go somewhere else and do it provided they can afford it. That is another dimension of the problem to which I will return.
There is an implicit recognition of the fact that there can be a danger to the life of the mother from suicidal intent and that it can be taken seriously, but it must be taken seriously enough not to do it here. That is what we are talking about. Because the Government has in that one answer accepted that is a risk and it can be grounds for an abortion elsewhere for Irish women, it should immediately withdraw this proposal and state it will not go any further with it because it recognises that it deals with something real and our courts have underlined its reality by establishing that right. I know it is not a right that one could easily vindicate in this country, but it has been established by the courts.
The response to question No. 9 which deals with approved places and medical practitioners states that the possibility of a medical practitioner with no expertise or experience in the area having access to a hospital designated as an approved place for the purposes of the legislation and being in a position to put forward the safeguards which will be provided for in orders made under section 5(2) is considered too remote to justify restricting the category of medical practitioners to a narrower class, such as some non-statutory class of obstetricians or gynaecologists or the like. I will pass over in silence an exegesis of the phrase, "non-statutory class of obstetricians or gynaecologists or the like," because that is not what I want to discuss.
I note in that reference and every other reference to medical practitioners in these answers and the Minister's replies in the context of the Bill that we talk about obstetricians and gynaecologists. We know that obstetricians and gynaecologists are extremely skilled in their specialties. We also know, as Deputy McManus said, that obstetricians and gynaecologists are not necessarily skilled in psychiatry. The more eminent the medical specialist one talks to, the more vigorously they deny any knowledge of any other specialty. However, I have met many eminent people in the medical world and would not have the slightest difficulty taking advice from most of them on a specialty other than their own because good doctors are holistic type people.
There is no reference to psychiatrists or psychologists. If there is no possibility of a medical practitioner without expertise getting next, nigh or near an approved place, which is what the Government is stating, then it must be said that there is no possibility of a psychiatrist without the necessary expertise getting next, nigh or near an approved place. If one can assure oneself of the quality of the gynaecologists or obstetricians, even without mentioning them specifically, which is what the Government is stating, then surely the same can be done for psychiatrists in order that there is not any difficulty ensuring access to and advice from people with the necessary skills in this area. There is, therefore, no reason, if we chose to do it, we could not require that where suicidal intent is being adduced as a reason for having an abortion, we have expert medical opinion which will either back that up or convince the relevant people it is not present or not something that would have to succeed.
The resources are available to assure ourselves that these particular grounds will not be abused and used as a systematic justification for something entirely different. I am disappointed to find the Minister for Health and Children acting like the most case-hardened and cynical social welfare officer who deals with applicants for supplementary welfare allowance.
I object to that on the grounds that it slights social welfare officers.
Hear, hear. I do not blame them for it too much, but unfortunately there are social service officials who feel they have to operate on the premise that everyone who comes to them is trying to diddle them. However, I find it disappointing that the Government and its Minister for Health and Children would, without any further justification, classify a whole profession in that way. They are saying that is how they suspect those professionals would operate.
That is not true.
That is what the Minister is doing. It is the justification for not accepting the risk of suicide as grounds for abortion.
We have to trust the psychiatrists.
When we suspended the sitting Deputy Dukes was in possession. Private Notice questions are being taken in the Dáil at 4.15 p.m. and there is a proposal that we suspend the sitting at 4.15 p.m. until 4.45 p.m.
Question Time is at 3.30 p.m.
I suggest we suspend the sitting at 4.15 p.m. The Clerk can ascertain at what time we should resume thereafter. Is that agreed? Agreed.
What time do we propose to conclude for the day?
At 6 p.m. I call Deputy Dukes.
I made a number of points on the degree to which it is wrong to make the argument that we cannot rely on pregnant women and their psychiatric advisers to make an honest case. I believe we can do so. In his question No. 10 to the Taoiseach, Deputy Noonan asked him for an explanation of the meaning of the term "approved place". The Taoiseach replied:
The term "approved place" is intended to be applied to hospitals under responsible management possessing adequate expertise in the area of obstetrics and gynaecology and in the treatment and prevention of life threatening diseases arising out of, or complicated by, pregnancy.
I hope I am right in assuming that the expertise referred to would not be limited to obstetrics and gynaecology because even in cases that are contemplated by the Government as being ones in which a termination of a pregnancy is an appropriate solution, there would at least be a need for experts in oncology and in other disciplines.
More importantly, I see nothing in the nature of approved places that would require a limitation to obstetrics and gynaecology or to oncology. Indeed, I see nothing that would necessarily have to exclude psychiatry. If the Government was of a mind to do this it would be feasible to define approved places and to make orders of the odd kinds the Minister proposes. While the making of such orders does not require him to get approval from the people, we are required to do so if we want to change even a comma in the legislation. In view of this, there is nothing to prevent the Minister from adding psychiatry to the areas of expertise that would be provided.
I do not intend to elaborate on the medical complications or ramifications of this. However, given the nature of the process the Minister intends to put in place for defining approved places, there is nothing in the nature of that process that need in any way exclude psychiatry if the Government was of a mind to do so. Indeed, it may be the case that in relation to some of the procedures already covered and proposed to be covered by the legislation, there may be a need for psychiatric assistance. I speak from considerable ignorance on this because, thank God, I have had no personal experience of any of these conditions. However, I could imagine that in a great many of the cases that would still be covered in the process the Minister is proposing to set in place here, psychiatric assistance might be needed to deal with the problems of women who find themselves in these very difficult and life threatening situations. I make this point to add further weight to the reflection that there is no reason in logic or in the process psychiatry could not be included.
In response to a question about the formation of a reasonable opinion by a medical practitioner, the Taoiseach replied as follows:
The practitioner must have formed that opinion personally. It is not, however, essential that the practitioner must form the opinion unaided or without guidance or assistance from other medical practitioners. The person performing the procedure may, of course, form such a reasonable opinion taking into account the advice and opinions of others. The definitions set out in section 1(3) requires that the opinion be objectively reasonable and also that it be subjectively formed in good faith.
I quote this to again make the point that the profession or speciality of psychiatry seems to be one which could perfectly produce opinions formed in accordance with the kind of criteria set out here. I understand the Taoiseach's concern but it is not necessarily directly reflected in the Bill. He sought to assure people, for perhaps a different reason, that the medical opinion that would lead to currently accepted practices being applied in any case is not one that is lightly arrived at. He makes the point that the medical practitioners, who seem in the Government's view to be restricted to obstetricians and gynaecologists, would be those who, if they felt the need for it, call on a second opinion to help to form the reasonable opinion on which their decision will be based.
Again, there is nothing in the nature of this process that would exclude a psychiatric opinion being given or an opinion based on a psychiatric assessment of the reality of a suicidal intent on the part of a pregnant woman presenting in this context. There is nothing inherent in the speciality of psychiatry that would make it any more difficult to apply the criteria set out here. There is also nothing inherent in the ethics of the speciality of psychiatry that should lead one to have any doubt about the equal validity of a psychiatrically based opinion with the validity of an opinion based on the sciences of obstetrics and gynaecology
Deputy Noonan asked the Taoiseach about the possibility of prosecutions arising. In answerNo. 12 on page ten of his letter, the Taoiseach states: "The intention of the Government is to provide a formula which would fully protect in law the principles embodied in current medical practice." It may not be directly relevant to the issues under consideration but if you allow me, Chairman, I will make a link which I believe will be sufficient to make it respectable to elaborate on it in this context.
The intention of the Bill, as set out in section 1(2), is to give cover in legislation to current medical practice. The Minister said the effect of the provision would be to make legal beyond any doubt practices which are currently followed which involve, or result in, the termination of a pregnancy. That is a rather unknowable provision. If we were to apply it today, the effect of this would be that the practices and guidelines set out by the Medical Council would be given the comfort and sanction of law.
However, the legislation does not in any sense prescribe what will be legal. It does not prescribe what is given the backing or the cover or comfort of legal protection. It gives that legal protection to whatever is currently accepted medical practice. I am concerned about this but it is not relevant to elaborate on it here.
The effect of this provision will be not only to sanction legally what is current practice but to continue to give legal backing to whatever way current practice evolves. If this referendum is passed by the people and this odd Bill within a Bill, with all its strange characteristics, was to become part of statute law, it would mean that whatever was accepted medical practice ten years from now would be legal. It would also mean that whatever had been dropped from medical practice in the meantime would no longer be legal while whatever new practices were introduced and sanctioned by the Medical Council in the meantime would also become legal.
Given the seriousness of this issue I will choose my language very carefully. Therefore, I will not say that this gives a blank cheque to the Medical Council. However, we are giving an unknowable power and imposing an unknowable responsibility on the medical profession. In the interest of understanding the purpose of this aspect, I suggest it is conceivable that if, in its wisdom, the medical profession was to decide over time given its experience with these very difficult situations that psychiatric assessment should become a part of an assessment of any case and was to write that into the guidelines, the scenario I have outlined would happen. While the Government does not appear to recognise any validity or ethical basis for psychiatric opinion, it could happen that this provision would create a situation where not only the tacit but the explicit force of law would apply to that new practice.
That same force of law would apply if this legislation was to be enacted with the words Deputy McManus proposes to insert into this section. It would mean giving the same legal cover and backing in the same conditions to a psychiatrically based assessment of the clear danger of suicide as a result of a pregnancy. That would not give the whole process any more or any less legal protection than it is proposed to give to any other practice. If the amendment proposed by Deputy McManus was to be accepted, exactly the same protections would apply for all the processes within the meaning of the amendment as it is now proposed to give to opinions based on gynaecological or obstetrical opinion. If it is good enough for the one set of opinions, it is good enough for the others. It would do no damage to the philosophy of the legislation to proceed in that way.
In his question No. 14 to the Taoiseach, Deputy Noonan asked: "It may be contended that this intended legislation is the first step to the introduction of abortion into this country. What would be the Government's view of this contention?" In his answer, the Taoiseach states: "The Government would entirely reject this suggestion that this is the first step to the introduction of abortion in Ireland. On the contrary, it is the Government's view that the medical consensus in the medical profession is the only thing which now stands between us and thede facto introduction of social abortion into this country.” I assume this reply was prepared with deliberation and that it means exactly what it says. According to the Taoiseach, a medical consensus in the medical profession is the only thing which now stands between us and the de facto introduction of social abortion into this country. I have said enough about the idea of social abortion in other places but if it is true that the medical consensus of the medical profession is the only bulwark we have against this so called social abortion, what is the rest of the argument about?
The medical consensus in the medical profession is proposed to be solidified in law under the provisions of section 1(2) of the Bill. The Taoiseach maintains that is the only thing saving us from social abortion and that nothing else is keeping it at bay. If the Taoiseach really means that, all the concerns about suicidal intent, with or without psychiatric advice, are irrelevant in preventing the introduction of social abortion, whatever that might be, to the country. The protection against that happening is the medical consensus in the medical profession. Yet, the Government says the nature of this protection will not be decided by the Government, the Oireachtas or any person elected or given the responsibility to legislate. It will be given to the Medical Council.
I have great respect for the Medical Council but, on the basis of the Government's wording, the council's consensus is the only thing that now stands between us and social abortion. Either the Government means that or it does not. If it means it, I submit it accepts the case made by me and others that the acceptance of suicidal intent as a ground for abortion with what most of us suggest should be the benefit of psychiatric assessment and advice is not a means of introducing social abortion into the country. In the text before us, the Government tacitly accepts that point. It is necessary to point it out because so much of the Government's case on so many parts of this issue is entirely inconsistent.
There was another reference in the Taoiseach's replies to Deputy Noonan to the cases of women being restrained against their will from travelling outside the jurisdiction. In answer to Deputy Noonan's question No. 17, the Taoiseach in his letter states: "As mentioned earlier, the Government is of the opinion that the courts have only been invited to consider the threat of suicide as a grounds for an abortion in Ireland in circumstances where a woman was being restrained against her will from travelling outside the jurisdiction." That is correct but I cannot see how, in reason or in law, it is possible to generalise from that in the way the Government appears to be doing.
I do not know if the courts would ever be asked to consider the threat of suicide as a grounds for an abortion in Ireland where a woman is not being restrained against her will from travelling outside the jurisdiction. I am not an expert on this but my impression is that, as matters stand, if the courts were asked to consider the threat of suicide as a grounds for an abortion in Ireland in circumstances where a woman was not being restrained against her will from travelling outside the jurisdiction, the courts would have to say that, on the basis of the judgment in the X case, it is grounds for abortion. That leaves a lot of other questions unanswered but I am not interested in going into those. It means that if that were the case, woman would be told it was illegal to have an abortion, which brings us back to where we started. This is the core issue of the Bill. The rest of the 11 pages of legislation being proposed are nothing more than ornamentation, flummery and embroidery around this central issue. It is designed to conceal the importance of the basic issue from us, but it would be unfair to say that, so I will not say it. It is a private opinion.
So the Deputy is not saying it.
And that is the Deputy's final opinion.
I said earlier that I would like the Minister to consider the final paragraph of the Taoiseach's answer to Question No. 17, which is on page 13. The final sentence says "There is nothing in the proposed amendment or in the envisaged legislation which would render it illegal for a health board to assist a woman to travel outside the jurisdiction in such cases", "such cases" being cases where the threat of suicide is invoked as the basis for the abortion. The Government is saying simply, without ornamentation, that a health board, without any specification as to psychiatric advice, can decide that the threat of suicide is sufficient grounds for a woman to travel outside the jurisdiction for an abortion. The Government is saying that a health board, without any qualification regarding psychiatric advice, can assess and adjudicate on the threat of self-destruction and conclude it is a basis for abortion. In a sense, all that I have said about psychiatric ethics and all the rest is irrelevant because the Government is saying that a common or garden health board can decide it. The Government seems to have set its face against the idea of a qualified psychiatrist, practising in full conformity with the ethics of his profession, deciding that. What in God's name makes health boards so special that they can decide something like that when a qualified psychiatrist cannot? Nothing. The Government is admitting in that one sentence that the threat of self-destruction is grounds for an abortion. As I said earlier, it is adding on the rider "but not here". One can do anything one likes, "but not here".
I do not know what more needs to be said about that. The way it is presented not to the way we should go about dealing with legislation. It is not relevant and I will not take up time on it, but the issue we are discussing is the one real issue in this matter. If the Government really was of a mind to carry out this fundamental change in the way we go about things, the most honest and direct way to do it would have been to debate a Bill which would put one simple question to the electorate, namely, whether or not want to row back on the X case legislation. All the other issues here - the definition of abortion, sanctioning of medical practice, the morning after pill, though events have overtaken us in that regard, and sanctioning IUDs - could have been dealt with by legislation without the complication of this weird animal here - I do not know what one should call it. It has been said that a camel is a horse designed by a committee. It must have been one hell of a committee which invented this animal, as there are several different humps in it, most of which are irrelevant.
We are trying to ride two horses.
On a procedural matter, Private Notice Questions are being taken in the Dáil from 4.15 p.m. to 4.45 p.m. so I propose we suspend from 4.10 p.m. to 4.50 p.m. Is that agreed? Agreed. I have other speakers offering but would it be appropriate to allow the Minister answer two comprehensive statements before others have their say or do those who wish to contribute wish to speak before the Minister replies?
I gave way to Deputy Dukes because I know he has to go, so maybe I could contribute.
Who else is offering?
Deputies Neville, Owen and Barnes - everyone has indicated at this stage.
It might elucidate some further information.
There is no danger of any questions being short-circuited.
We want the definition of "flummery" put in the Bill.
We want to smoke the Minister out.
The Deputies do not. Some people would like the Deputies opposite smoked out.
I will have something to say to the Minister about that - it is non-PC.
And not a PD as such.
Do Standing Orders allow Progressive Democrats into the discussion?
I would hate if they felt excluded.
I disagree with one of Deputy Dukes's eloquent points. I do not think the Minister could do everything in this legislation that he is proposing by law. Therein lies the question for those advocating this change. It would be open to challenge if the Minister introduced section 1(1)as ordinary law because he would be leaving open the definition of life beginning at implantation.
The purpose of this amendment is twofold, namely, to reverse the X case and to include the issue of implantation. Those who come at this arguing that we need change need to look closely at it because if this was an ordinary Bill in the Oireachtas a challenge under existing Article 40.3.3° of the Constitution could be made to section 1(1). Therefore, section 1(2) is reducing and weakening section 1(1). I have argued that on another section so I will not repeat myself, but it is a valid point for consideration.
If the Minister is to designate the approved places, which he has translated as hospitals in the Taoiseach's reply to Deputy Noonan, where terminations to be called medical procedures can be carried out, is it false to presume he is not going to name every hospital? I presume he will not name psychiatric hospitals as approved places though maybe I am wrong. If, for example, these terminations can only take place at, say, maternity hospitals or whatever hospitals the Minister designates, would a psychiatrist be allowed to carry out the medical procedure or is it more likely that some other qualified medical practitioner at that institution would carry out the procedure? My point is this. If a psychiatrist said there was a real and substantial risk of loss of life of the mother, a risk of self-destruction, would another doctor not have to concur de facto because another medical practitioner would be carrying out the procedure? That is a reasonable point to raise and it has not been raised so far.
What was the Deputy's last point again?
It goes back to the approved places. I assume the Minister does not have it in mind to name every psychiatric institution but to name maternity and general hospitals. In those circumstances would a psychiatrist carry out the medical procedure? I think it very unlikely. The procedure is likely to be carried out by someone involved in obstetrics or an allied field. Therefore if a psychiatrist says there is a risk of loss of life on the part of the mother, a risk of self-destruction, would there not have to be a de facto concurrence of another medical practitioner? Much of this is built on the psychiatrist not only saying there is real and substantial risk of loss of life but that the psychiatrist then carries out the procedure. There would have to be ade facto concurrence between the medical practitioners. I raise the point because it has not been raised yet.
Regarding the Government's approach, the Minister said on Second Stage that the Government had carefully examined the different proposals put forward by the all-party committee and that the approach being adopted was based on one of the three possible approaches identified by the committee. He said that, stated briefly, it would protect best medical practice while providing for a legislative prohibition on abortion and underpinning such legislation with an amendment to the Constitution.
Is that correct? I suggested yesterday that we should talk to the Medical Council. Its guidelines state that where there is a risk to the life of the mother, doctors could carry out such a medical procedure. The Minister's legislative provision is a risk of loss of life which is a different thing. There could be a risk to one's life if one crosses O'Connell Street but there might not be a real risk of loss of life, even if one were hit by a bus one might get up and walk away. The Minister says this gives us constitutional and legislative certainty and underpins the legislation with an amendment to the Constitution but the Medical Council says it will follow its ethical guidelines. When the Minister says this is the reason for the Government's approach, is that reason flawed from the very beginning? Has he justified the reasons he has set out?
The Minister said the experience in the 1992 referendum attests to the difficulty of providing in a relatively short constitutional provision for a clear prohibition of abortion while ensuring there is no obstacle for pregnant women receiving all the care and treatment they need. Does a longer provision not make that even more difficult? If the Supreme Court could, on the wording of the short 1983 amendment, decide something that the proponents of this amendment could not foresee, is that not much more possible in an 11-page Act to be given constitutional protection? Will this not create the opportunity for this sort of difficulty which has already risen with a relatively short constitutional provision?
The Minister said the wording was difficult but that wording is:
It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother, where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.
The people turned down that amendment in 1992 on both sides of the argument. It seems that the Minister has not really dealt with the concerns of people on both sides of the argument. I could see those on both sides having expanded concerns about such detailed provisions as those the Minister is putting forward. The Minister said there is no simple sentence or paragraph which can be inserted. Perhaps that is correct and it is the simple reason for a rethink of what we are proposing to do here. I have kept a relatively open mind on this in so far as I can but there are people——
On the proposal to put this question to the people. I will come to the X case in a second.
I see dangers in enacting such detailed legislation with the approved places and so on. The Minister said on Second Stage the Government has decided instead that the proper place to strike that complex balance is in legislation and not in the Constitution. He went on to say that the proposals contained in the Protection of Human Life in Pregnancy Act provide a practical legislative response to the issues raised by the 1983 amendment and the X and C cases; he said they would not satisfy the wishes of those at different ends of the spectrum and that the proposals were aimed at achieving a reasonable compromise which would enjoy the support of the middle ground of opinion and hopefully be seen by other groups as an honest and genuine attempt to provide an acceptable and workable solution to this complex issue. I believe I am on the middle ground in this and I have not come out with all guns blazing against the Minister's proposal but I am not yet convinced. The Minister has not put forward the arguments to convince me that this is the right approach.
What I see is pressure coming on the Minister to reverse the X case. I share that concern. It would be wrong to leave the X case hanging there so that in the future any medical practitioner could have an opinion that someone is under threat from self-destruction and then carry out an abortion. The Minister is right. The court decision on the X case should not be left to stand. However, the Minister has not made the case against delimiting that court decision by legislation itself. He has not made that case. People are afraid to raise this issue because they are accused immediately of talking about legislation for the X case. The X case is legislated for. It is legislated for by the courts who interpret the Constitution. If we are really serious about delimiting the effect of the court decision we must ask are we making it worse by doing this or could this be dealt with by going the legislative route alone?
On Second Stage the Minister said that at present the only real defence against widespread use of the X case as a basis for what he calls social abortion in Ireland is the ethical consensus in the medical profession. Why is that the case? Why have we left it to the medical profession? This is the essence of the issue. There is a fear in the Dáil of dealing with this ourselves by legislation. If this proposal is defeated, what do we do? Do we leave the X case there and leave this to the medical profession? They are the only ones the Minister says stand between the Constitution and what he calls social abortion. At some stage if this is rejected we will have to ask what we intend to do in terms of legislation. The Minister has not made his case in this regard. He has not even addressed the matter and we are entitled to hear him address it.
The Minister says others have argued for legislation without further constitutional change or underpinning but that the outcome of the X case does not afford a satisfactory starting point for future legislation and that to legislate for the decision in the X case and, in particular, to make complex legal provision and control for the suicide risk as grounds for abortion could open the way to freely available social abortion in Ireland. Does this stand up? I do not want any law to allow abortion in this country outside what is provided for in Article 40.3.3 - where there is a real and substantial risk of loss of life to the mother. I have not called the provisions the Minister is making in section 1(2) into question; the Minister mentions a real and substantial risk of loss of life and I accept that is covered by Article 40.3.3. I do not want widespread abortion but I do not want provisions put in for the sake of political slickness at the behest of people who, for all intents and purposes, want to sew up the Constitution and reverse the X case - the very people who got it wrong in the beginning - and at the behest of some Independents in the Dáil who have been given a promise. That is not the way to deal with a legislative measure which is to be inserted into the Constitution. I say that honestly and openly as someone who is prepared to consider a reasoned and reasonable approach to the Bill. I do not share all the concerns that have been expressed by others.
The Minister stated the Government, having considered all the options, is opposed to permitting any intervention which could or would result in the death of the unborn child other than where the mother's life is at risk from a medical condition, excluding the risk of suicide. If there is real and substantial evidence that there is a risk of loss of life of the mother from suicide, there is also a risk of loss of life of the unborn. Both lives will be lost but both scenarios are different. A psychiatrist is not likely to carry out a medical procedure. Perhaps it would happen but I imagine one of his or her colleagues would be the person concerned. Does that mean there could be an accommodation which would allow for the first notwithstanding but having a second notwithstanding which would deal with this case?
The Minister stated: "I have no doubt that any proposals to remove Article 40.3.3° from the Constitution which would be necessary . . . the proposal to legalise abortion would fail". I agree with the Minister that that would not be supported. Members argue in favour of it but none of them is present. However, there are people outside the House who want that redressed. Perhaps the way to go is to say Article 40.3.3° has been decided upon, as the people were consulted in 1992 and rejected the change, and the time to stop examining the Constitution is now. We may weaken Article 40.3.3° by proceeding this way. I ask the Minister to think about that because I am not convinced. The record will show I did not vote in favour of Article 40.3.3° which was put before the House in 1983.
The purpose of the Bill is to provide a secure and effective constitutional basis for a legislative approach to the protection of human life in pregnancy. The proposals are designed to ensure women can continue to receive all necessary medical treatment during pregnancy while, at the same time, ensuring maximum protection of the unborn and maintaining a clear prohibition on abortion. If the Minister did so through ordinary law rather than by constitutional amendment, he could define "unborn" as meaning "human life beginning at conception". The reason he cannot do so is because he is inserting the word "implantation" from the very beginning to meet his own need, which is to amend and weaken Article 40.3.3° by inserting section 1(2).
No, it is a definition of "abortion". That is what——
Section 1(1) defines "abortion" but section 1(2) defines "medical procedure" notwithstanding section 1(1). The Minister could not introduce section 1(1) under the Constitution without it being challenged. There is a good chance, based on opinions I have received, that it would be overturned. The people who are proposing this should think about it. For example, the Minister could introduce an ordinary law to delimit the X case and could define "unborn" to mean "life beginning at conception". Nobody could fault that and he could then delimit the X case. He cannot do so in section 1(2) because that will contradict section 1(1) and Article 40.3.3° will be weakened if he proceeds that way.
The Minister also stated:
The proposed constitutional changes on this occasion are designed to ensure that the legislation has a sound, constitutional basis, that the careful balance it strikes will not be subject to legal challenge from either side of the argument and to give people the reassurance that they will be consulted if change is proposed in the future.
The first time a Minister for Health and Children makes an order, somebody will challenge it in the High Court. The Minister's statement does not stand up and every time a future Minister makes an order, somebody will challenge it in the High Court. He proposes that it must be reaffirmed in the Oireachtas. However, I welcome that provision, which I sought on Second Stage. That will provide the vehicle for a challenge.
The Minister further stated:
There is a difference between this proposal and that rejected in 1992. It has been claimed that the current proposal is, in effect, the same as that of 1992 and questions have been asked as to why it should be acceptable to the people now when they rejected it in 1992. In 1992 the people voted on the proposed wording of the constitutional change itself but not on the legislation which would have followed had the amendment been passed. On this occasion the Government is committed to allowing the people to decide not only on the principle but also on the detail of what is proposed. They have the right to be consulted on the fundamental issues involved in the abortion issue and the amendment process set out in this Bill recognises that right.
I have no difficulty in principle with that statement as Article 6 of the Constitution provides for that. However, if the people reject the amendment, what will the Minister do, given that the people will have been consulted and said "no" twice? He will have to take the legislative route. He asked us to give him a template. I tried to provide one earlier on Committee Stage that would work as it would allow the Minister to consult the people and he would not necessarily have to amend Article 40.3.3°. The weakening of Article 40.3.3° proposed by the Minister by the addition of Article 40.3.4° is not necessarily in the interests of the people who see themselves "as part of the pro-life movement". I caution him strongly, particularly because of the provisions he is making for the variation of powers and others, notwithstanding the concerns that have been expressed about the X case.
On suicide the Minister stated:
The Government believes that the evidence considered in the preparation of the Green Paper and also the testimony and conclusions in the report of the All-Party Committee do not support the maintenance of suicide risk as a ground for abortion in Ireland and would not justify the enactment of a legal basis for abortion to avoid such a risk.
Such studies as have been undertaken suggest that pregnancy has a "protective effect". In a large UK study the rate of suicide in pregnancy was found to be only one-twentieth that of a similar matched non-pregnant population. Similar results have been demonstrated in other studies. It is important, of course, toexercise caution when interpreting theepidemiological data from other jurisdictions with different cultures and where legal abortion is available on a range of grounds. The Government's view is not based solely on these studies.
In contrast to the type of situation which would be covered by the Bill it is very difficult to assess whether a risk of suicide is genuine. Evidence to the All-Party Committee suggests that it is very difficult accurately to predict suicide. Dr. John D. Sheehan, consultant in perinatal psychiatry at the Rotunda Hospital, indicated that there is no test or fail-safe way of saying that a person will or will not commit suicide and that where suicide occurs, it is due to the interaction of multiple factors, rather than just one. The evidence heard by the committee also indicates that the medical response to a pregnant woman considered to be at risk of committing suicide would be to help and support her and to treat her underlying mental condition. Providing for abortion where a woman's mental health may be at risk is one of the principal grounds on which abortion is permitted in other countries and experience elsewhere strongly suggests that a change in the law to deal on compassionate grounds, with a small number of exceptional cases can be exploited to allow widescale application.
I do not want that to happen and I share the Minister's concerns, but a case has not been made. The Supreme Court has made a decision based on Article 40.3.3° of the Constitution. It is not something the Legislature can amend in the future. It is something the Supreme Court can interpret, inasmuch it can interpret any legislation we pass. Many of the countries cited by the Minister are not a similar or safe comparison, certainly not Britain, which has an unwritten constitution and where Parliament can do anything it wants, including retrospectively.
If there were a will, there could be a way to deal with this without giving rise to concerns expressed on Second Stage. By examining this constitutionally from the beginning, we have not done anything about reducing the abortion rate. I brought with me to a committee meeting the other day the Lost Lives book on Northern Ireland, which is about three to four inches thick and lists the 3,500 people who died in Northern Ireland in the 30 years of the troubles. If we continue with the abortion rate we apparently have based on the registration in England of women with Irish addresses, we will have 40 volumes of that book in the same period.
I made a case privately in 1983 - I am sorry I did - for a fund of £1 million to be established to try to assist those with crisis pregnancies. While I am glad the Minister devised the crisis pregnancy agency, it is not as good as the Fine Gael proposal. It is the right way to go, but I am not convinced constitutional amendments on their own and inserting such detail into the Constitution, especially detail which can be interpreted, is the way to go. I am becoming less convinced as the argument goes on. Many issues are being introduced - implantation, approved places, orders which can be varied in future, the evidence to be kept - simply to bring forward this constitutional amendment. Much of it is unnecessary and, if found not to work, it cannot be changed by the Oireachtas in future.
I quote what T. K. Whitaker said in his submission to the Oireachtas all-party committee on the Constitution:
By the 1861 Act and the 1983 amendment of the Constitution, abortion is banned in Ireland, subject to the exception allowed by the X case decision, that is to say where there is grave danger to the life of the mother even if this, as with threatened suicide, may be a danger posed by herself. Most people would, I think, still want to give prior protection to the mother in a life-threatening situation, but many would not recognise suicide as such a situation. Suicidal dispositions can be feigned and in any case psychiatric illness tends to be less well understood than grave physical illness. The result is a confused and divided public opinion as shown by the 1992 referendum.
I share Dr. Whitaker's point of view. I do not share the point of view which states a psychiatrist is the same as an oncologist. I respect that others have that view, but I do not. Dr. Whitaker said: "suicidal dispositions can be feigned and in any case psychiatric illness tends to be less well understood than grave physical illness." That is a perfectly reasonable thing for a perfectly reasonable man to say. I support that view.
He went on to say:
In essence, what the advocates of a new referendum desire is to annul the X case decision. Legislation is opposed on the supposition that it would extend from the particular to the general the application of that decision and thus confirm the legality of abortion in Ireland where necessary to avert a real and substantial risk to the life of the mother. Generalising the effects of the X case decision does not, however, appear to be the only legislative option. It would seem that legislation could significantly restrict access to the X case authorisation, e.g. by requiring that a number of medical experts, including in threat of suicide cases at least two psychiatrists, [this is one suggestion of Dr. Whitaker's] certify that termination of the pregnancy is unavoidably associated with medical treatment or action necessary to protect the life of the mother. It could also provide for a delaying treatment and counselling course for a suicidal mother and it could confirm the legal protection for doctors mentioned earlier. The result would be both a substantial qualification of the effects of the X case and a reinstatement of the intent of the 1983 amendment of the Constitution.
As health spokesman for my party, I cannot advocate that line because my party has not put it forward, but within the reasoned proposals brought forward by Dr. T. K. Whitaker, there may well be a way to deal with this issue which does not require constitutional amendment.
I quote section 1(2) of the Protection of Human Life in Pregnancy Bill to the Minister because this is where these words appear and the difficulty arises:
Notwithstandingsubsection (1) [which defines abortion for the purposes of the Bill] 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 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.
Is it not possible, following on from what Dr. Whitaker said, to leave section 1(2) and have a further section 1(3) which includes some form of more limiting wording in the case of a threat of self-destruction along the lines of what Dr. Whitaker suggests? That is a reasonable and constructive question to ask.
The Minister has not made a persuasive case against the reasoned, impartial, non-party political views of Dr. Whitaker who is not standing for election, fearful of the electorate, trying to cosy up to any section of the electorate or in any way compromised. He has made a cool, reasoned and calculated point and no one could accuse him of being pro-abortion or anything of the kind. Will the Minister address this issue because it appears the more we deal with this, the efforts to reverse the judgment in the X case, even from the point of view of those advocating its reversal, aregiving rise to so many questions and potential dangers that it might be a very dangerous course to take.
Deputy Neville indicated he wished to make a statement before the Minister responded. That option is open to him.
I understand we agreed the Minister would respond after Deputy Mitchell.
I may have to go soon and would like to hear the Minister.
Many issues have been covered since 11.30 a.m. I have noted most of the points made by Deputies so far. The Government has given this issue very careful consideration. We are endeavouring to bring about the most balanced set of proposals we can on the overall issue of legislation on abortion, albeit in a constitutional context. I know some have argued this should be done by legislation alone, but there is a strong view among sections of the public that they want another say on this issue. That is a fundamental point because people have consistently knocked the constitutional model we have adopted and brought forward as a proposal. People have undermined it, sought to criticise it and so forth. Are they really saying we should deny the people the right to have a say on this issue?
On what evidence does the Minister base that view?
I did not interrupt.
I only ask a question.
I have been here since 11.30 a.m. and listened to everyone make their points. I want to make a number of points.
I am sorry.
The Minister to continue.
In terms of the Legislature, I argue there is a majority who do not want to deny the people the right to have a say on this, who believe we must go back to the people on it because there were previous referrals to the people in 1983 and 1992. I am open to contradiction on this but I am not sure the Legislature would get away with endeavouring to resolve this issue on its own. In terms of its current composition, I am not sure the Legislature has the capacity to legislate only for this or that there would not be sufficient opposition to it from whatever quarter. During today's debate, albeit among a small number of Deputies, there have been views from many different ends of the spectrum. They ranged from a very strong pro-life view in certain elements of Deputy Mitchell's contribution to others who argued totally in favour of legislating for the X case, as articulated by Deputy Dukes. Deputy McManus's views were consistent with what the Labour Party has been saying for some time. The reason we are going down the constitutional route is that we believe the people are entitled to have a say on the matter. There was always a desire, particularly on the part of the Taoiseach, to again consult the people on this issue.
On Deputy Mitchell's point, it was not just our view that we did not think it was possible to resolve this issue by just one paragraph in the Constitution. It is fair to say that was also the consensus of the Oireachtas sub-committee. It did not agree on everything but it certainly seemed to take the view that the issue could not be resolved by just one paragraph in the Constitution, with which I concur. Various Supreme Court judges have in the past criticised the Oireachtas for its failure to legislate following the 1983 and 1992 referendums. There was no legislation drawn up in terms of the X case or the original pro-life amendment in 1983. We felt there was a need for a legislative context to flesh out the issues. The Act is a statute against abortion. It does not define when human life begins - I will return to that issue in a moment. It defines what may not be permitted particularly in regard to termination of pregnancy. It outlines the basis on which that can be done and goes through all the details. I believe this issue can only be resolved via legislation. It is a legislative process within a constitutional context.
I want to clear up the point made about psychiatry. Deputy Dukes suggested it is the Government's view that psychiatrists cannot be trusted and that the profession may have fewer ethics than other medical disciplines. That is absolutely not the Government's position.
It is the poor old women.
The Government has never advanced that position. However, having considered the Green Paper and all the evidence submitted to the Oireachtas committee, it did not support the continuation of suicide as a threat in terms of the loss of life in pregnancy, which is the Government's view. I will quote Dr. Anthony Clare's contribution to the Oireachtas committee:
I would say that the only real reason that I am here, I think, and that you will find psychiatrists involved in this, is, in a way, because, I suppose we have been drawn in to try and get people off the hook over this issue of a danger to the health and life of a woman who is pregnant and wishes to terminate the pregnancy, so who better than to get the psychiatrist to tell you that if this is refused, this woman will kill herself. Well, no such statement can be made with any great safety, whether the person making it is a psychologist, psychiatrist or a general practitioner.
Deputy Mitchell quoted Dr. John Sheehan.
I quoted the Minister quoting him.
He is a consultant in perinatal psychiatry at the Rotunda Hospital. He said:
Essentially, suicide, the factors involved in suicide are what we call multifactorial. So it's not a single factor that relates to suicide, it's a combination of, in a sense, multiple factors, including, for example, the presence of psychiatric illness, the presence of depression or a psychosis or perhaps alcohol problems coupled with the absence, for example, of social supports. It's related to socio-economic class. It's related to marital status. There are multiple factors involved.
He goes on to say:
There is no test or in a sense there is no fail safe way of saying the person will or will not commit suicide. It actually doesn't exist.
He also indicated that the medical response to a pregnant woman considered to be at risk of committing suicide would be to help and support her and treat her underlying mental condition.
I have not come across medics or psychiatrists who suggest abortion is a treatment for suicide. I acknowledge Deputy McManus's quotation from Dr. McKenna or the psychologists for the freedom of information group which also made submissions. We could quote different perspectives on this issue but it is clear from psychiatry itself that there is no certitude on the issue. We are not questioning the ethics of psychiatrists. However, it is self-evident from their contributions that there is no certitude. I agree with Deputy Mitchell's point which is at variance with Deputy Dukes's view. Deputy Dukes was drawing almost an equivalence between the physical and mental state as if one could approach both with equal certitude. I do not think one can.
No, in terms of the medical side.
Even if there is cancer, there can be moments of doubt.
I am not sure.
There is no guarantee.
A small tumour or a big tumour.
People must make decisions.
Eisenmenger's is a doubt——
I just want to give my perspective on the issue. Professor John Bonner, Chairman of the Institute of Obstetricians and Gynaecologists said:
. . . prior to the Abortion Act in the UK risks of suicide were the indications for abortion and there used to be large numbers of patients having terminations on psychiatric grounds linked to risks of suicide and they all sort of suddenly disappeared when the Abortion Act came in. The problem in relation to the risks of suicide or the psychiatric indications is that these are clearly different to the physical problems that we've been discussing like pre-eclampsia, ectopic pregnancy, cancer of the cervix. These are entirely different. In practice it appears that the psychiatric indications become exceedingly elastic, legislation to control them has been usually unsuccessful and they have been used to achieve abortion.
In the United Kingdom in 1994, the commission of inquiry into the operation and consequences of the Abortion Act chaired by Lord Rawlinson of Ewell, published a report entitled "The Physical and Psycho-Social Effects of Abortion on Women". This commission heard evidence from representatives of the Royal College of Psychiatrists who had a particular on view this. They stated that although most abortions are carried out on the grounds of danger to the mother's mental health, it was their expert opinion that there is in fact no psychiatric justification for abortion. That is just one perspective. In light of this the commission believed that to perform abortion on these grounds was not just questionable in terms of compliance with the law in the United Kingdom but it also put women at risk of suffering a psychiatric disturbance after abortion without alleviating any psychiatric problems that already exist.
Deputy McManus elaborated this morning on a whole range of studies in terms of suicide in pregnancy and so on. It is fair to say that the literature, according to Dr. Anthony Clare, is somewhat sparse at best, not just in terms of suicide in pregnancy but, more particularly, on the issue of pregnancy being the cause of suicide.
Much emphasis is being put on the Whitaker report and the expert committee. Last week and earlier this week, Deputies McManus and Mitchell were suggesting that Dr. Whitaker's committee was almost giving us the template for the legislation. He makes the point in terms of the X case that if a referendum is decided upon there should be a definition of the unborn, for example, in the legislation.
It should be put in the legislation, not the Constitution.
Exactly. Where does that leave us? If we want to legislate for the X case, for example, and also to legislate and define "unborn" as well as other terms——
My claim is that the mother and child——
——that, as he states himself, would be subject to further cases and Supreme Court judgments.
What does the Minister think this will be?
A view is being advanced that Whitaker would solve all the problems. In 1995, the rainbow Government introduced the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, but it is instructive that no attempt was made then to introduce legislation based on the X case, and I wonder why.
I told the Minister why in my contribution.
The Government of the day obviously examined the issue when bringing in that Act, which followed from the 1992 referendum——
The Minister is not adopting that position.
I am not.
Why is he criticising us for not adopting it?
I am just making a point and I will explain why I am so doing.
Perhaps the Minister could explain the point.
I certainly will. The Opposition is entitled to criticise the Government's proposals but, if we are putting it to the people, there is an obligation on those who oppose to produce an alternative template, which appears to be the X case.
Where did the Minister get that idea?
The Minister must justify what he is saying.
I have justified it.
We will be happy to take over the Government for the Minister and deal with the issue.
Why does that suggestion make them so uncomfortable?
Because it is not our position. The Minister ought not to be silly.
I did not make personal remarks about Deputy McManus.
I propose that we swap sides in the House. We have no problem with that. We would be happy to take on the responsibility.
We could go there now and do it.
I did not interrupt anyone. The reason we have no legislation on the X case is that we have not had the political capacity to achieve it. That capacity is neither with Fine Gael nor the Labour Party. Every day parties produce Bills on many issues reflecting their position, but everyone, except the Government parties, is studiously avoiding any position on this.
The Government is going to make it worse.
That is no excuse.
We are not making it worse. Our view is that there was difficulty in legislating for the suicide option. Deputy Gay Mitchell opened it up without adopting a particular position by saying that he does not want the scenario outlined by Dr. Sheehan in his submission to the all-party Oireachtas committee. There are huge issues surrounding legislation on suicide because there is broad opposition to it based on the view that it would lead to a liberal abortion regime.
Or to risk to the mother, which is what 1992 was about.
I am getting to the nub of it because people have been skirting round the issue and in every party people have different perspectives on it and diametrically opposite views.
Nobody knows about members of the Minister's party as they have not come here to discuss it.
I am honest enough to say there are members of my party who do not support legislation on the X case under any circumstances and some who do, just as in the other parties.
Why do we not hear more from the Minister's party?
There is more coherence in our party than in any other.
They are muzzled which is why none of them are here.
That is outrageous. They all spoke on Second Stage. More time is being given to debate this than any previous referendum.
None of them are here for Committee Stage.
Deputy McManus expressed a view on the C case, which is adequately covered by this Bill. A health board could not be injuncted.
It could not be injuncted because of section 4(2). The issue raised in the judge's arbiter statement, which is not law since his comments were not binding in the decision, is addressed in that section.
That is not the question I asked. The health board is not enabled to do what it did then.
The health board cannot be injuncted to prevent it doing so.
There is nothing positive.
It could be criminalised.
How could it be?
If the threat of suicide is removed.
There is nothing to prevent the health board from doing what it wants to do.
If the threat of suicide is removed, those grounds will not be there as it was in the C case.
Read section 4(2) which says that this Act does not operate to restrict any person from travelling to another state on the ground that his or her intended conduct there would, if it occurred in the State, constitute an offence under section 2.
It does not apply to a health board which helps someone to do so.
The point is that no one can injunct the health board from doing that, as the Deputy knows. There is no possibility of an injunction being upheld against a health board in any court.
So it can make any choice it wants.
It must make its own assessment.
The health boards run the risk of being criminalised.
They do not run that risk.
They have no right to do it.
It is incorrect to say they run the risk of being criminalised. A clear reading of the Act shows that they do not.
That is not true.
I am not just trotting out constitutional advice. This was stated by the Taoiseach and it is the emphatic position.
Other Deputies raised many other issues which I should address. Deputy Dukes argued that the suicide issue was the only part of the Bill which required constitutional amendment although Deputy Gay Mitchell's view is that sections 1 and 1(1) on implantation also require constitutional amendment. I disagree with Deputy Mitchell as section 1(1) is not a definition of the unborn but of abortion as the intentional destruction by any means of unborn human life after implantation in the womb of a woman. Therefore, section 1(1) does not require constitutional amendment although the suicide issue does.
I already dealt with the issue of psychiatrists. Professor Clare, referring to involuntary detention and the lack of certitude around the suicide issue, said, "You will be told perhaps to your alarm that psychiatrists are not very good at predicting suicide. I say to your alarm because, of course, under the mental treatment legislation, psychiatrists are permitted to detain people against their will on exactly that prediction. I think [the late] Michael Kelleher stated that for every 100 cases of suicide predicted, the prophesy was wrong 97 times." Under mental treatment legislation, to save three lives, we are prepared to err on the side of caution many times.
It is only three lives.
With respect, that is not the point and we should not get polemical. I am quoting Professor Clare about the impossibility of certitude on behalf of psychiatrists which they admit. The Deputy raised involuntary detention. The worries of the United Nations and other bodies about this are the reason new mental healthlegislation was passed this year. I would not invoke that as a basis for asserting that psychiatrists' judgments are as certain as medical practitioners'.
On approved places and the issue of medicsversus psychiatrists, a woman in pregnancy is under the care of an obstetrician but an obstetrician will refer particular conditions, including psychiatric, to the relevant expert.
I asked if a psychiatrist would carry out the medical procedure referred to in any circumstances.
By definition, psychiatrists do not carry out medical procedures.
That is the point.
How is that the point?
A psychologist will not carry out a medical procedure in terms of a medical——
What is the treatment of a psychologist called?
It is psychiatric treatment.
No, in medicine it is a psychiatric medical procedure. That is the definition.
If someone has a particular condition, such as pre-eclampsia or Eisenmengers, or if pregnancy has to be terminated, the psychiatrist will not perform any of those acts.
Does the Minister understand my point that if a psychiatrist does not carry out a medical procedure, it needs the concurrence of some other medical practitioner who is not a psychiatrist? There would have to be somebody else who would also agree that the real risk is loss of life.
No, not in the event of the amendment being passed because it removes the issue of self-destruction.
That is the point I am making - not in the event that the amendment is passed. If the amendment is not passed, a psychiatrist on his own will not carry out a medical procedure to terminate a life.
If it is not passed?
Psychiatrists would never carry out the medical procedure
That is the point.
I do not understand the Deputy's point. What is the point he wants to make?
The point I am making is that the Minister said he is concerned that if a psychiatrist says there is a real risk of loss of life, their opinion can be subjective. Since the psychiatrist will not carry out the procedure himself, he would need the concurrence of another medical practitioner who is not a psychiatrist and who, presumably, to carry out the procedure would also have to agree that there was a real risk of loss of life.
No, the obstetrician would never be in a position to make the psychiatric diagnosis.
He will not carry out the diagnosis on the word of a psychiatrist.
He would have to accept the diagnosis.
I think the Minister has missed the point.
Allow the Minister to deal with the questions please.
Deputy Mitchell said that he wanted no law outside Article 40.3.3° on abortion.
To permit abortion.
Yes, to permit abortion.
Article 40.3.3° defines——
Article 40.3.3° has been subsequently amended by virtue of the X case.
Dr. Whitaker said it can be limited.
It has not been amended but interpreted.
In a manner of speaking, but the result is a new dispensation.
It is what it was.
Dr. Whitaker said we can delimit that case.
We cannot delimit it but we can legislate for it.
No, we can delimit or circumscribe.
What the Deputy means is limit rather than delimit.
No, delimit. We can set the boundaries.
No. We cannot turn it around.
We can set the boundaries.
We cannot turn it around by legislation.
Dr. Whitaker went into this and set out how we could delimit it.
Allow the Minister to continue please.
The Deputy went on to his definition. I do not know what the implications of his view would be for the morning after pill or for emergency contraception, but they would be significant.
The Minister told us they are contraceptives and not abortifacients.
The Deputy cannot have it every way.
The Minister told us that himself.
With respect, the Deputy cannot have it every way and say, on the one hand, we can do this or that while, on the other, we can do something else. We cannot do that.
That happens anyway. The Minister told us that contraceptives were contraceptives and not abortifacients.
I do not want to make a long speech but I do not understand what the Minister is saying at this stage about the morning after pill and IUDs. I appreciate he is replying to Deputy Mitchell but perhaps he could explain the point he is making.
I am replying to Deputy Mitchell. I am responding to the issues that have been raised by him. His contribution basically ranges over every perceivable issue and goes from one to the other.
I mentioned the morning after pill two days ago.
I just wanted to raise the question.
The open mind is being kept to the very end.
The question is important.
There is no doubt about that.
My view of this is simple. The Bill allows for abortion where there is a serious threat to the life of a woman due to physical illness but it denies it in a situation where there is a serious threat to the life of a woman because of a mental illness. That is inherently discriminatory and it is the essence of my objection.
Two cases prove conclusively that there are instances where people are suicidal because of pregnancy. One case was outlined by Dr. McKenna when he said that a patient brought into a hospital attempted suicide at an advanced stage of pregnancy. It was a serious suicide attempt and Dr. McKenna said that it can happen. The other case is the C case where the health board sought permission from the District Court to take C abroad for an abortion. The District Court heard the evidence of two psychiatrists who had examined the girl. In his testimony Dr. Barry told the District Court of the girl's suicidal thoughts arising from her pregnancy and expressed his clinical judgment that if she did not have her pregnancy terminated, she would act on them. He said she faced a significant risk to her life. There are hard cases involving people who are suicidal due to pregnancy. I accept these cases are rare, but so is the threat to the life of a woman because of physical illness. That is also rare and an earlier submission suggested it might be as low as one or two per year in the State.
People talk about the rate of suicide. In the context of the number of people who die per year, the rate of death from suicide is very low. The number of deaths from car accidents is also low. About 2.5% of the deaths in the State are from suicide and it is about the same for road accidents. There are about 15,000 deaths per annum and about 415 and 430 respectively are deaths by suicide or from road accidents. Suicide is a rare event. On average, a GP will come across death by suicide of a patient about once every five years. We are dealing with a rare event in the context of this legislation. We accept that our suicide rate is now above the European average whereas it used to be at the lower end of the scale.
Although suicide is rare, it is a real issue and must be dealt with sympathetically and with understanding. I will refer to the treatment of psychiatric patients and I will quote from some of the literature on the subject. My reference is the second report of the Royal College of Psychiatrists special committee on ECT and other treatments. The first quote is from the department of psychiatry, Queen's Hospital Central in New York, from the general hospital psychiatry in 1989:
Treatment and management of the psychotic pregnant patient is insufficiently covered by most standard textbooks and a current glitch in the current literature. To date there are no control studies of the efficacy of different therapeutic modalities during pregnancy. Medications that have proven effective in the treatment of the various psychoses are not without added risk to the pregnant patient.
It goes on to say:
Although few psychotropic drugs are known to be tetrogenic or to have adverse effects on the developing foetus no psychotropic drug is of proven safety. It is therefore very important that psychotropic medication should not be prescribed lightly during pregnancy.
Finally on the issue of ECT Locke says:
There is a need for detailed reports of successful and unsuccessful case studies particularly in the cases of where ECT is administered in the first trimester of pregnancy.
Little is known about the effect of ECT in the first trimester of pregnancy. What is the position of a doctor or psychiatrist who decides an ECT should be administered to a suicidal patient in the first trimester of pregnancy and consequently a termination occurs? Could that doctor face charges? This literature says there is insufficient knowledge to judge a situation where ECT is administered in the first trimester of pregnancy. Psychiatrists are concerned about this area and have expressed their concerns to me. Could a patient or a patient's family bring a case against a doctor on the basis that the pregnancy was terminated as a result of the application of ECT treatment?
I know that electroconvulsive therapy has been criticised. I have had detailed discussions with Dr. Patricia Casey over a number of years and she is very determined that in certain circumstances ECT is absolutely necessary for the treatment of patients at certain times in their mental illness. It is a treatment that psychiatrists believe is necessary in certain circumstances. It is over-used and abused, but there are circumstances when it is necessary.
The same applies to some of the drugs I spoke about. What is the position of a psychiatrist if as a result of the administration of those drugs there is a question of a termination taking place?
Does the Deputy mean in a situation where it was not an act intended to terminate but rather an act intended to treat?
An act intended to treat. But as a result because there is a risk——
But the intention is hopefully to treat without any adverse impact. Are we treating a person who is——
But there is a risk. A decision has been made to do that. I refer to replies to Deputy Noonan on page six that the individual women are not being prevented against their wishes from exercising the freedom to travel to another state. That is on page six and it is referred to many times. What the Minister is saying is that if a person is suicidal there is a suggestion that they travel to another jurisdiction to procure an abortion to save their lives.
We went through a very difficult time in the earlier part of the 1990s to decriminalise suicide. I think the Minister knows how traumatic that period was for the bereaved of suicide. I heard a person from his own county, Trish Millea, express her experience of campaigning over a 15 year period that her son who died by suicide should not be regarded as a criminal. It was very important to people who had family members die by suicide that they were not criminalised. That was settled after a period of time.
Is the Minister now suggesting that an act occurring in another country would be criminalised in this country? Is that not rolling back the position in the whole area of suicide criminality? At the moment suicide is not a crime. Is the Minister suggesting that a deeply suicidal person like the C case or the case mentioned by Dr. Peter McKenna who travels abroad and commits an act would be criminalised in this country?
Suicide was criminalised and buried for centuries, all the way back to ancient Greece. We came out of that in 1993 when we decriminalised it. That was when it became a responsibility of the Minister's Department because before 1993 it was an issue for the Department of Justice, Equality and Law Reform and in fact the Department of Health and Children had nothing to do with it. When I discussed the situation with people in the Department of Health when Deputy Michael Noonan became Minister for Health I was amazed that officials there knew very little about suicide at that time. I appreciate that things have changed now but at that time it was not regarded as a health issue; it was regarded as a crime.
Because of that history of suicide there is a lot of stigma surrounding it. Families feel that stigma and people do not know how to respond to those who are suicidal or to families bereaved by suicide. That stigma still persists to some degree. The Minister will stigmatise it again by saying that if a person is in danger of death by suicide a different approach should be taken than if they were in danger of death through a physical illness. We still use language that talks of "committing" suicide. A crime or a sin is "committed" but in my view a person "dies" by suicide rather than "commits" suicide.
The Irish Association of Suicidology of which I am a member has given very clear guidelines to the media on the language to be used when reporting on suicide. I am not apportioning blame; it is historical. We must break the mind-set of talking about "committing" suicide in order to dispel the stigma and the historical difficulties experienced by so many people, including the bereaved and the suicidal.
Psychiatrists say there are tests which they apply to ascertain the level of suicidal intent, for instance, the number of previous attempts; the number of times a person has spoken about suicide and has had suicidal thoughts; if they had made plans such as stockpiling tablets or had made a decision on the method of taking their life. The Irish Association of Suicidology has guidelines for family members in the recognition of suicidal tendencies. I am not suggesting these are tests - these are lay tests and not psychiatric tests. It is just a method of educating families and concerned people in the warning signs of suicide. People exhibit suicidal feelings by being withdrawn, being unable to relate, having definite ideas on how to die by suicide and settling their affairs. They will talk about feeling isolated and lonely; they will constantly dwell on problems for which there seems to be no solution; and they express a lack of supporting philosophy in life such as a religious belief.
I have had real experiences where families have come to me when they are concerned about suicidal family members being discharged from psychiatric institutions. I have made my representations to health boards and they were still finally discharged. I have subsequently attended the funerals of those people. Those families were able to predict suicide in their own family, so to say that suicide can never be predicted is not true; there are times when it can be predicted that a person will die by suicide.
There is a level of subjectivity in the area of psychiatry which is not present to the same extent in the area of dealing with physical illness. As Whitaker has been quoted already, I will not quote him again. I favour a situation around what Whitaker has suggested and its development - perhaps not exactly what he has said, but my own feelings were that the psychiatrists who were asked to confirm or withdraw the opinion should be from outside the health board. It is not beyond our ingenuity to set limits and ensure the situation is controlled as we want it to be. I am firmly pro-life. To anybody who suggests that I am not, because of my views, I say I am president of an association which is more pro-life than anything else - the Irish Association of Suicidology is, surely, a pro-life organisation.
I refer briefly to the Appleby studies which stated that pregnant women had a 20 times less propensity to die by suicide than those who were not. Some psychiatrists have told me that what Louis Appleby said makes some sense, but the studies were retrospective, spanning ten years. They were studies of pregnant women who were in deep crisis and died by suicide. This happened in a country where abortion was available to them if they were suicidal. While it does make sense - I accept, to some extent, on the basis of the procreation of the human race, that there is a level of protection of suicide - we must be very careful about quoting figures——
I am not quoting those figures.
I am not saying the Minister has quoted them, but they have been quoted at length. The person who criticised my Second Stage speech in Dáil Éireann spoke very strongly about the Appleby studies and other studies which arrived at somewhat similar conclusions. I do not believe that a study in Ireland would also determine the situation, because there is the opportunity in this country to have an abortion if a woman is extremely suicidal. We must be careful about saying, simply on the basis of studies, that there is a very low risk.
In the early 1960s an average of 64 people died by suicide in Ireland. In the last five years an average of 447 died. It is a real issue. More died by suicide last year than in road traffic accidents in which a total of 415 people died. The official figures show that 413 people died by suicide, but it is accepted that that is understated, though, perhaps, not by as much as is often suggested. It is understated by as little as 10% to 20%, which would put the figure at around 450 to 500 - it did go over 500 two years ago. Yesterday,The Irish Times reported a verdict of suicide in the case of a man who left a suicide note and then crashed his car. A professor of psychiatry in Oxford posed the question to me as to how many road traffic deaths in Ireland were actually suicides. The answer is that we do not know and I do not believe we can ever know.
People ask the reason this has happened. Certainly, society has changed dramatically in that period. Some Members may be aware of studies of suicide, in the early days, by Durkheim showing that, where there is an increase in the level of alcoholism, violent crime, marriage breakdown, divorce and extra-marital births, there is also an increase in suicides. However, we do not know if there is cause and effect. Society is changing. While it might be unpopular to say so, I am convinced that the change in religious practice and belief also has some effect on the levels of suicide. In the old days the wicked prospered and the blessed suffered in order that they had a better life in the next world - people were prepared to suffer much more. Young people are now encountering extreme difficulties. The level of pressures on them has changed totally, as has the level of certainty about their lives and their future, the level of challenge and expectations by their families and society. The changing role of men is also relevant. Although some tend to dismiss the writings of John Waters, there is a great deal of truth in much of what he has written. Like myself, he is not professionally qualified in the area, but, obviously, he studies life and his surroundings.
I have to bring the Deputy back to the issue in hand - the amendment before us.
The Minister does not want to know.
He does not want to go there.
I would not disagree entirely with Deputy Neville's point of view.
My point is that suicide is a real issue that was hidden in this country for generations. Individuals and families have suffered enormously from this terrible act against nature and the stigma which surrounds it. Does this amendment mean that we are taking a step back and saying that physical illness is a valid consideration, but that we should disregard suicide, as we have always done? We are not grasping the hard issue of suicide. On the C case and McKenna, psychiatrists have told me they have never met a deeply suicidal pregnant woman but that they "know of them."
With regard to procedure and time——
The Deputy has three minutes before we suspend.
On a point of order, will there be a vote on this amendment?
If there is to be a vote, we should proceed.
I cannot dictate that. There are members, including the Deputy, still offering to speak on this amendment and I must give them an opportunity to do so.
Rather than continuing for two minutes, we should adjourn now.
Is that agreed? Agreed.
There are a couple of issues of concern that I and others raised on Second Stage. They have also been addressed here on Committee Stage, but they have not been satisfactorily answered or guaranteed. I want an assurance that the words so given, if they are voted upon by the citizens, will stand up to the guarantees and promises made both by the Minister and the answers given to Deputy Noonan. However, they do not fill me with confidence. I am not being either polemical or political, but this is fundamental.
With regard to the reasons for going through this process, and referring back to what Deputy Dukes said, there are several central areas. These include the rolling back of the interpretation of the Supreme Court on the 1983 wording, the interpretation allowing that the threat to suicide or self-destruction be allowed as a basis for termination of pregnancy, and, as so eloquently underlined by Deputy Neville, the area of psychological and psychiatric difficulties that women can and do experience. That is what this is about, and what a particular interest group is about.
Going back to 1983, legal and medical practitioners, and some legislators in this House, warned that the wording was dangerous and that it could not and would not be interpreted in the way that a certain interest group, and many of our legislators, thought it would. This came to pass and it realised their worst fears. However, it also realised the worst fears of women. When an injunction against that young child and her parents travelling to Britain was sought in the X case, that is what the High Court had to interpret. The interpretation was that the right of the unborn was superior to that of the mother. It was only because she was rightly diagnosed as being in such a state of desperation and at such risk of suicide that a different interpretation was made by the Supreme Court. Let us not lose sight of that. If we do not learn from history, we will not learn anything.
We are doing areprise of this again. We have not learned from the past. I cannot understand why a referendum is again being put on this matter. We all realise that putting words into the Constitution to cover such a complex area is rife with threats, challenges and interpretations that we do not and cannot anticipate. We know from experience that such things can and will happen. We have already complicated matters even more than we did in 1983 because we are now trying to wrap law within constitutional legislation. Legislators will be powerless to change it. If voters realised that a future change of an “and” or a “but” would require a further constitutional referendum, they would say, as they said in 1992, that they did not think this was what the amendment entailed, or that they did not believe this would happen. I do not think this referendum will be passed, but if it is, the voters to whom I have referred will say they did not think this would happen. They will claim not to have been told that we could not legislate with the mandate of the people. I will be unhappy if I leave this House having allowed such a dangerous precedent to stand.
I cannot understand why we have to deal with this matter again. In my Second Stage speech I quoted the comments of the then Minister for Justice, Mr. Padraig Flynn, when introducing the Twelfth Amendment of the Constitution Bill, 1992, which dealt with what was known as the substantive issue:
Should it transpire that the people decide not to adopt the Twelfth Amendment, the Government has decided to introduce legislation instead to regulate the position obtaining as a result of the X decision.
The next sentence is crucial, as the Minister, Deputy Martin, may try to argue that Mr. Flynn was saying that we, as legislators, would do something about it. Discussing the amendment which was eventually defeated, Mr. Flynn continued:
If that amendment is defeated, which incidentally I do not believe will happen, it is the Government's firm and considered view that the only practicable alternative is to legislate on the basis of the X case. That is simply a fact. It is not meant to be a threat to anybody or to put pressure on them to vote in a particular way in the referendum.
Mr. Flynn's final sentence is the crucial one, as it was a coded sign to the pro-life group that was pushing for yet another abortion referendum. Why has the Government ignored what Mr. Flynn said would be the only option in the event of the defeat of the 1992 referendum?
I do not wish to repeat the points covered by other Deputies, who I commend on the balance and commitment of their presentations. With all due respect to the Minister and the advice he has received, I remain worried. Deputy McManus pointed out that the courts may not have interpreted the C case as they did in 1997 if the proposed measure had been in place. The Minister has argued that such a case would be covered by section 4(2) of the Second Schedule to this Act, which states:
This Act does not operate to restrict any person from travelling to another state on the ground that his or her intended conduct there would, if it occurred in the State, constitute an offence under section 2 of this Act.
Deputy McManus quoted from the High Court judgment in the C case, in which Mr. Justice Geoghegan reviewed the freedom to travel guaranteed in Article 40.3.3° of the Constitution. He said that the Article did not give a new substantial right but was "intended to prevent injunctions against travel or having an abortion abroad". Mr. Justice Geoghegan also ruled: "The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose."
He held his interpretation of the travel guarantee to conform with the view of the Supreme Court on the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995, which was referred to the court by the President under Article 26 of the Constitution. The District Court order allowing the health board to bring the girl in the C case abroad was upheld by Mr. Justice Geoghegan because she was suicidal. Psychiatric evidence suggested that the continuation of her pregnancy posed a threat to her life that could only be avoided by the termination of the pregnancy. Mr. Justice Geoghegan said that he would not have permitted such an order if the girl had not been suicidal as the abortion would not have been lawful in this jurisdiction. This Bill attempts to remove the right to travel for an abortion if a woman is suicidal.
The basis for the C case was the ruling in the X case in relation to the threat of suicide. This is a serious matter. The girl in the C case was a ward of the State who could not travel freely of her own accord. I take the point about the right conferred in Article 40.3.3°, but the girl's circumstances did not facilitate free travel. She could not afford to travel and was totally ill-equipped to do so. If the Government's proposal is passed and suicide is ruled out as a threat to the life of a pregnant woman, the basis for the C case decision will be removed, meaning that a young woman in the same position as the girl in the C case will not be able to receive the necessary assistance to travel abroad.
I would like the Minister to take my comments on board. The parents of the girl in the C case attempted to prevent her from travelling for a termination. It was only the suicide clause and Mr. Justice Geoghegan's interpretation of the Constitution that allowed the health board, under challenge, to facilitate the girl's request. I do not think the wording of this section of the Bill is strong enough and it may jeopardise the right to travel in circumstances like the C case.
It covers it.
They said that in 1983. I am worried as we were told it was copper-fastened and that nothing could happen to the interpretation or the wording that was included in 1983, but look what happened. There may be challenges or an attempt to have an injunction——
If we passed it, it could not possibly stand.
If we passed it——
It is the agency. I am not talking about the freedom of the individual, if they have the——
No, or the agency either.
No, it does not.
I am sorry, but I cannot——
I cannot accept that that section——
We are going to have to agree to differ.
——gives the protection that is needed.
It does, actually. It does.
We do not understand the interaction between family law provisions and that section.
Nobody has had regard to that.
With respect, the advice that led to the drafting of that section was given by a fairly senior constitutional lawyer.
Senior advice led to the drafting of the 1983 amendment and look where we are now.
I do not want to——
The committee should consider Deputy Neville's sincere speech and society's devaluing and marginalisation of mental health issues, which I know is the last thing the Minister desires as he has put in place a programme. Moving beyond the insult that women and psychiatrists cannot and will not be trusted in case they open the door to "social abortion" and leaving aside the offensive and implicating language, it should be pointed out that other jurisdictions including the North deal with this matter in other ways. For example, opinions are taken from more than one psychiatrist or psychologist.
Professor Ivana Bacik, who is an expert on the laws of this country and especially on the Constitution, has spoken of cases in Northern Ireland involving women in state care for whom termination of pregnancy was deemed the appropriate treatment due to genuine suicidal intent. In each case, three medical professionals, psychiatrists or obstetricians, gave evidence of the existence of the risk to the woman. Why can we not do that here? Do we not value the professionalism of the psychiatric profession? This matter has far wider implications than this referendum. Many women believe they constantly have to seek constitutional, copper-fastened support to control their lives as there is a perception that they cannot be believed and that they will seek social abortions as the mood takes them.
I cannot emphasise enough that this country undermines and denies women's rights and status. This is not polemic and I am not making a political point. It is a personal, female perspective. I speak on behalf of half the population. We should not have a re-run of this. It will deny and devalue the status of women and the equality programme for them on many other levels as well.
This wording may devalue psychiatric and psychological feelings. The psychological feelings that women experience are very real regardless of whether they are taken seriously. There will be other cases like the C case. There will be asylum seekers in this country who will be under the control and aegis of the State at certain times. Will they have the right? We have to look at this seriously. I am concentrating on it because it is essential. I cannot believe that this defends and protects the little right women have even to an abortion abroad.
I find it difficult to believe that I live in a country that wants to do this to women. I mean that very strongly. I concur with every word Deputy Barnes said. It is an infringement of women's human rights. The legislation could potentially be in breach of the European Convention on Human Rights as far as Irish women's mental health is concerned, regardless of whether it is constitutional. It fundamentally alters the protection in the Constitution as far as mental health is concerned. It is an extraordinarily regressive step to take in the 21st century. The Minister should think about it again and consider very carefully the points made by Deputy Neville in relation to mental health and differentiating between it and physical health. Making that differentiation in the Constitution is extraordinarily serious.
Before I outline what happens in other European countries, I ask the Minister if he can tell us how many other countries worldwide deal with the question of abortion and reproductive rights in their constitutions. Does he have an answer?
The Minister will respond to you later.
I think it is two or three, but I would like to know for certain.
In presenting this legislation the Minister and the Taoiseach said that it was reasonable and occupied the middle ground, but I question that. The approach to this issue, as proposed by the Government, is not reasonable and it is not in the middle ground. If one was to take a reasonable and middle ground approach, particularly to the issue of suicide, one would deal with it differently. One would draw up conditions and one would not exclude suicide constitutionally.
The main legal grounds for the termination of pregnancy in other EU states are outlined in the Green Paper. Those grounds are saving the life of a woman, preservation of physical health, preservation of mental health, rape or incest, foetal impairment and economic or social reasons. It can be available on request with no specific ground required. An interesting table is presented and one can see that there is huge variation.
Where is this referred to?
This is from the Green Paper's comparison of other EU countries. It shows clearly that there are huge variations in how this issue is handled. However, this debate is not a question, as the Minister and the Taoiseach have said so often, of a referendum, abortion on demand or social abortion. It is a much different debate. One does not have to go to extremes.
Does Austria preserve the mental health of women? The answer is "Yes". Does Belgium do so? The answer is also "Yes". Denmark, Finland, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Portugal, Spain, Northern Ireland and Sweden also preserve women's mental health. The United Kingdom does so in the first 24 weeks of pregnancy. What is so different about the mental health of Irish women from that of our EU counterparts that it should be dealt with in this extraordinary way? Why is this restriction put in and why is the differentiation between physical and mental health made? What is so different about Irish women that mental health is not considered in this case? Is it that the rest of Europe is unreasonable? It cannot be reasonable to remove the suicide ground entirely.
A middle ground approach would define conditions strictly and set up mechanisms to assess suicide risk. It would be middle ground to stick with the Oireachtas. Its legislators are elected to make laws. I ask the Minister what would a reasonable mother or father want for their 14 year old child? What would they want if their daughter was pregnant as a result of rape or incest or was suicidal? Does the Minister not agree they would want to consider a variety of options without being criminalised by the Constitution?
A number of my colleagues have spoken of the X and C cases, particularly the latter. Those cases prove that circumstances exist where a pregnant person is suicidal. There are five or six Northern Irish cases cited in the Green Paper. In 1994 there was a case of a pregnant woman who was severely mentally handicapped and a ward of the court. There was medical evidence that the continuation of the pregnancy would adversely affect the woman's mental health. The judge held that abortion is lawful where the continuation of the pregnancy would adversely affect the mental or physical health of the mother. He also said that the adverse effects must be real and serious. There was a case in 1995 involving a severely handicapped 17 year old girl who was also a ward of court. On the basis of medical evidence presented to the court, the judge held that a termination of the pregnancy would be lawful. There was another case in 1995 concerning a 16 year old girl, who was also a ward of court. She stated that she wished to have her pregnancy terminated and threatened to commit suicide if she was forced to continue with it. On the basis of medical evidence, the judge held that it would be lawful for the pregnancy to be terminated.
In Northern Ireland the decision to terminate a pregnancy is based on professional judgment following consultation with two doctors and with the informed consent of the woman. The Green Paper goes on to describe a series of individual cases involving very vulnerable young women. There are strict procedures to assess their cases and decisions on them were taken on that basis. Other countries in Europe and Northern Ireland are completely prepared to accept that a woman's life can be at risk from suicide when she is pregnant. However, we are saying that if one finds oneself in those circumstances, one must travel abroad. Is it good enough to say that to suicidal women? Is that the way to look after people who are suicidal in this day and age? Very serious questions arise in that regard.
Some of my colleagues mentioned the research on suicide. The Minister already described some of the things Dr. Clare said when giving evidence that related to the difficulties of making definitions. Dr. Clare also said: "There is, however, just to complicate it, strong suggestive evidence that the provision of abortion in some jurisdictions resulted in a drop of suicide rates in pregnant women." The Minister agreed that the research is very complicated and uncertain. Generally speaking, pregnancy is protective of women. In many countries where research was carried out on the protective aspects of pregnancy the risk of suicide was found to be low in pregnant women. As most of these studies were carried out in countries where abortion is legal and we do not have data on a cohort of suicidal women in a country where abortion is not available, this finding is inconclusive in terms of what would happen to women in countries where abortion is illegal.
Rather than introducing an exclusion on mental health grounds, we should consider including them. Why is it necessary to have such a restrictive provision in terms of the mental health of women, particularly young women, written in stone in the Constitution when almost no other country in the world has done so? What is so different about this country that we should choose a very obscure constitutional route to deal with the issue?
I hope to avoid repeating what has been said and will start from a slightly different position before returning to several of the issues. I regret that we are discussing the issue in these terms. As Deputy Dukes and others have said, it is absolutely clear that, in the context of the amendment relating to self-destruction, this is really a revamped version of the 1992 amendment which sought to remove the impact of the X case from the area of constitutional jurisprudence and application in the context of pregnancy terminations.
Much of the discussion concerning the X and C cases derived from the fact that the two young women or teenagers concerned became pregnant as a consequence of either rape or statutory rape. As a result of conceiving in this way, the courts heard evidence in both cases that they were suicidal and might well take their lives if pregnancy was not terminated. I take a more simple view of the matter, that is, that if a woman or young girl becomes pregnant as a consequence of rape or incest, the violation they have suffered is compounded by society compelling them to maintain their pregnancy.
In the context of rape or incest, we should not need to dance on the head of a pin, wonder about the veracity of suggestions that the women concerned may be suicidal or ask whether we need one, two or three medical doctors, psychiatrists or psychologists to certify that they are. If my daughter, niece, grandchild - if I have grandchildren - or the daughter or wife of anyone present was raped and became pregnant as a consequence, they are entitled to have that pregnancy terminated. In those circumstances, it is an additional violation of the woman concerned to tell her, as we currently do, that in order to terminate the pregnancy she must prove she is suicidal or, alternatively, she can leave the country to terminate it. It is a further abuse of children, who have become pregnant as a consequence of sexual abuse, to put them in this position.
My colleague, Deputy Fitzgerald, referred to statistics detailing various European countries in which mental health is an issue in the context of termination. From my recollection of reading the report when it was first published, it also details the European countries in which one is entitled to seek a termination if one can prove pregnancy as a consequence of rape or incest. It is an extraordinary cruelty to remove that entitlement.
I recognise there are rights which must be balanced in this area. I spent 20 years arguing for the modernisation of the adoption laws to make it easier for women in crisis pregnancies to resort to adoption rather than abortion. We have we not done this. Our adoption laws are still based on outdated adoption philosophy and probably the least reformed in the European Union.
I do not like the idea of abortion and would much prefer that women never terminated pregnancies, but it is time we got a grip on reality. This means recognising and acknowledging that it is cruel to demand that a woman who becomes pregnant as a result of a violation maintains the pregnancy. It is even more cruel for the State to maintain that a woman in this position will not be believed if it is determined that she is either suicidal or might commit suicide if required to continue with the pregnancy.
I was interested in the Minister's comment that, while it might be possible to legislate without a referendum, we would not get away with it. What this means is legislators are frightened to take responsibility to legislate based on an assessment of circumstances as opposed to the lobbying and political pressure applied by interest groups which beat their own drums. On occasions we resist pressure in all sorts of other legislative areas in the interests of the common good, while in this area we bend the knee and knuckle under every ten years by taking a complex constitutional proposal to the people, which is never adequately teased out and always found by the courts to mean something other than what the legislators said. Despite this extraordinary history, we keep on doing it. If one is already in a constitutional hole, there is no point in continuing to dig. We have an extraordinary capacity to go for a bigger shovel each time someone calls for action. I find this incomprehensible.
Occasionally, the general public, as opposed to lobby groups, is asked for its views on abortion. Sometimes the question asks whether there should be a constitutional referendum and people answer without being given the detail of what the amendment would deal with. Other polls have been broken down to ascertain people's view of the whole area of abortion. The majority in this country, including every person here, does not want wholesale abortion - I do not like the term "social abortion," which is an inaccurate description of what happens elsewhere with the possible exception of one or two parts of the United States. When asked whether a victim of rape should be entitled to terminate her pregnancy so conceived, more than 70% have said "Yes" and when asked if they believe a victim of child abuse and incest should be allowed to terminate a pregnancy so conceived, more than 70% have said "Yes."
If we want to deal with abortion in a more coherent way, why not have the courage to spell it out? Why dance on the head of a pin on suicide? The reason is that this and previous Governments, irrespective of party, have either lacked the courage to address the issue or allow the members of their parties the freedom to express their views.
I am proud of the Fine Gael Party which has a diversity of views on abortion. We all recognise the problems inherent in this proposal, but are willing to do our legislative duty and tease them out. We are not afraid to do so in this room, even if some of us do not completely agree with the position of others. This can be said of the Labour Party and the Green Party, but not of the Fianna Fáil Party, which is the majority party, or of the Progressive Democrats, who are in hiding on the issue. The Minister has been abandoned to deal with the issue here.
I want to deal technically with a couple of issues that arise. I do not want to drag it out unnecessarily, but I will return to the C case. It is terribly important because what the Minister is saying to us is wrong. I am not saying this in a party political sense, and I hope he accepts that. There is no particular benefit in kicking a party political football and saying the Minister is wrong to score a point - I am not interested in that as the issue is too serious. Things which I said were wrong in 1983 were ignored, but I have since been proved correct.
The Minister is wrong about the C case. There is an interaction between the constitutional proposal, the legislation he is suggesting and simple concepts of family law. Let us consider a young teenager in the position of the teenager in the C case. Let us assume we have a female victim of rape who is pregnant. She might be living at home with parents who are her joint guardians. The parents, as her joint guardians, are the people who have the constitutional right, under a decision delivered in a High Court case in which I represented a parent many years ago, to determine if their daughter should travel outside the State or not, because they are the parents. The parents may decide that, even though their daughter is suicidal and is not in care, she should maintain the pregnancy. In those circumstances, the daughter will not have an independent right to exercise to travel anywhere. There may be psychiatric advice here that if one compels this 13 or 14 year old to maintain her pregnancy, she will take her own life. The psychiatrist may recommend to the parents that she should go to England. The parents may say "No". Maybe they would behave in the way the parents in the C case behaved. Maybe they would get remuneration to behave in the way the parents in the C case behaved from some organisation which has a theological, fundamentalist perspective - I do not know. Maybe that will happen - I am not saying it will but it may.
What happens when the girl takes her life? How many Members of this House will jump up and say "We should have done something about that, we should have allowed her to terminate here"? She did not exercise an independent right to travel because her parents, as guardians, could determine, under section 11(1) of the Guardianship of Infants Act, 1964, whether she should be allowed travel because they are her parents.
Let us take the C case examplesimpliciter. Let us assume that same girl is now in care, maybe taken into care as a consequence of the psychiatrist telling the health board that he thought the girl was suicidal and that her parents would not take her abroad to effect a termination, and that for her own safety and welfare she should be taken into care. Let us assume she is taken into care, either under the Child Care Act, 1991, or that she is made a ward of court - something that happens far more rarely in Ireland than in England and Northern Ireland, but it could be done here. Let us say she is placed in the care of a health board. The Minister said that section 4 of the legislation will solve the problem. Section 4 says that the Act does not limit freedom to travel between the State and another state or freedom to obtain or make available in the State, in accordance with conditions for the time being laid down by law, information relating to services lawfully available in another state.
As the Minister would correctly point out, should the girl go abroad to terminate her pregnancy, she would not be liable to any criminal conviction under section 2 of the proposed legislation. What is the position of the health board? The health board has a view of the welfare of this young girl. Can the health board authorise her travelling abroad, because it certainly does not have a right to travel? The health board is not the person travelling abroad in the sense of terminating a pregnancy. Let us assume, for instance, that the health board determines it is in the interests of this young girl that the pregnancy be terminated. Firstly, cannot some other outside body or individual or even the girl's parents now look for an injunction to stop her travelling abroad and stop the pregnancy being terminated? What is the reason for this? As Deputies Barnes and McManus have stated, the reason is the key to the decision in the C case - in the circumstances of someone in the care of the health board being constitutionally allowed a termination where the pregnant teenager was suicidal and where there is a psychiatric-psychological view that should she be required to maintain the pregnancy she may take her own life. If one does not consider that element, one is saying to the courts "If this young girl is suicidal according to the health board, the courts must be blind to that. The courts have no basis for allowing her travel abroad if she is in the care of the health board."
There is a nexus in the judgment of Mr. Justice Geoghan in the C case between a self-destruction element, which derives from the X case, and the right to travel. If that nexus is broken, I believe that should we have another case identical to the C case, the order Mr. Justice Geoghan made in the C case would be the exact opposite.
The Minister may say I am wrong, but I do not believe so. It is inevitable that we will have another case like that should this occur and it is inevitable that another young girl, a victim of rape, will be dragged not just through the High Court but the Supreme Court while this is sorted out. Is that the scenario we want? Do we want to re-enact the odium that fell on the State internationally as a consequence of the X case? Maybe we do, but this is a far more complex issue than is being portrayed. I am saying this without a political axe to grind. The interaction between the Constitution and family law is complex and difficult.
It may be that the Minister will get a different legal view to mine, but I guarantee that we will only know the exact answer when a similar case goes to the High Court or Supreme Court. To suggest that what we are now doing is clearing up this area and taking it out of the courts is complete nonsense. We are creating another morass: we are digging deeper into the hole.
With regard to the amendment and how it will work, there is something peculiar about this particular proposal to which I am not sure anyone has yet referred. Part 1 of the First Schedule is the Irish version and Part II is the English version. The new article, Article 41.3.4°, which we want to insert in the Constitution states "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". That is followed by the proposed Act. What we are doing is very strange. I think nobody has commented on it. The Minister may make a comment on it. I did not comment on it in the Dáil.
Bills have to be passed by the Houses of the Oireachtas and only become Acts when signed by the President. We are going to ask the people in a referendum to put wording in our Constitution to the effect that we are providing protection in accordance with something called the Protection of Human Life in Pregnancy Act, 2002, at a time when no such Bill is even before the House. I know the intention is to enact it, but legally things are apt when they pass through the Dáil and the Seanad and are signed by the President. We are asking the people by way of a referendum to afford protection contained in a phantom piece of legislation that does not exist and has not been enacted or signed by the President. How can it be described as an Act? I do not understand that and it is yet another example of the difficulties.
The new subsection is relevant to the issue of suicide as they are all inter-related. It is the same thing again - the life of the unborn in the womb shall be protected in accordance with the revisions of this phantom piece of legislation. The original provisions of Article 40.3.3 deals with the equal rights of the life of the unborn to the equal rights to life of the mother. Until the Government produced this provision everyone assumed the unborn could be classified as the foetus, embryo or whatever word one wants to use, from the moment of conception. Constitutionally there will be protection for the unborn in the womb under the 2002 Act, if and when it happens.
The Minister has said that what he is doing does not affect the original Article 40.3.3. We are still preserving a constitutional protection from the moment of conception but it does not happen under the 2002 Act, it happens under the Constitution and no one is quite sure what that means. It certainly means that one cannot be charged with a criminal offence of abortion if there is a termination between the moment of conception and the moment of implantation. Nevertheless there is still a so-called constitutional protection. At the time when the Minister launched this proposal at a press conference they said the reason for the difference was to ensure the morning after pill was not rendered illegal and the IUD device could not be determined as an abortifacient, or Article 40.3.3 could be used to create a barrier to either of those forms of intervention regarding pregnancy.
If the Minister is telling us that this provision does not affect the original Article 40.3.3, the reality is - even if it is accepted - the constitutional world as we know and love it concerning the morning after pill and IUD device will not change after this referendum. It will still be open to the lobby groups who have been advocating a referendum to bring a constitutional case seeking a ruling making the morning after pill and IUD devices unconstitutional. This proposal does not ensure a degree of certainty. That the medicines board has now made a decision on the morning after pill does not mean the medicines board will not find itself involved in a constitutional case a few months after this referendum takes place and if it is successful.
This will happen with legislation. If it was legislated it would be up in court the next day.
We have Willie here to sum it up.
It may happen with legislation but the Minister has said two contradictory things. He has publicly pledged that by doing it this way the morning after pill and IUD devices cannot be challenged. At the same time he has said that by doing it this way he is not interfering with the protection originally provided under Article 40.3.3, the exact meaning of which no one knows until it goes to the Supreme Court and someone pronounces on it. The case the Minister has made does not stand up.
The more I listen to the argument in this debate the more I am convinced that we are dealing with what George Bush would call "Swiss cheese legislation". It is so full of holes that I cannot conceive of it not being challenged in either in the Supreme Court or in Europe in the future. The people decided by referendum in 1992 to attain this protection and this is trying to roll that back. That is quite clear. Deputy Shatter said there are various opinions in parties about this but the Green Party feels that to deprive women of this protection is quite inhumane and unacceptable.
Let us imagine that a woman who has been raped is suicidal. What happens to her, particularly if she is in a suicidal state and cannot think straight? Are we telling a person who is completely and utterly confused to get on a Ryanair flight to London or to take the boat? There is such a degree of incoherence and confusion that I want the Minister to tell us what a GP is to do. What are the steps that will have to be taken? Do we have to get someone to escort that person to London and look after her there? I am not clear on that, maybe the Minister is. This is one the reasons I tabled the amendment. This is simply unacceptable. It implies that mental illness is not a real illness and that it cannot be life threatening but we know that it can be and we have heard that women do commit suicide. What we are saying here is that we are sorry, it does not matter if the woman is going to commit suicide or has been raped; she has to get on the boat or aeroplane.
I heard an interview with the Attorney General a few months ago on "This Week". The reason put forward was that women would pretend that they were raped. I find it completely unacceptable that this would be used as an excuse. In years to come people will look at what we have done and ask themselves "What were they thinking about?" This is not going to go away. We can pretend that we have solved the problem once and for all. I have heard people saying that the issue has to be put to bed but we are not doing that. That is why I tabled the amendment; Deputy McManus also tabled it. We must ask ourselves the hard questions. The answers we are coming up with in this legislation are inadequate.
As I said on Second Stage, I am not in favour of abortion. I am not coming from a position where I can be accused of creating circumstances which allow for social abortion.
How did we come to this juncture? We started back in 1983 and I remember answering literally thousands of letters, all of which said the ultimate answer had been arrived at. They suggested that the final chapter had been reached and we were going to introduce an amendment to the Constitution to resolve all our problems and difficulties for the foreseeable future. We know what then happened. Despite all the legal and medical expertise made available at the time it was all proven wrong. Experts came from overseas to give us their views but all the experts were wrong. There was another visitation in 1992, this time to the courts. One of the issues clearly debated from 1993 onwards was whether legislation should be incorporated in the Constitution which would restrict the ability of the Houses of Parliament to legislate in the matter. What appalled me at that time was the degree to which those holding various views were absolutely certain they theirs was the correct and only view. That was sad. All of us have dealt with situations in our own constituencies that raised questions, despite the degree of expertise available. There is an old adage that bad cases make bad law, but bad or inadequate law falls by the wayside when difficult cases arise and, unfortunately, difficult cases arise. What do we do in that event? Do we have another constitutional referendum? Do we ask the people to resolve the difficult cases because it appears that the hands of the Oireachtas are tied, through the Constitution? Is that the answer? It is not. I am not one of the 50% of the population who are female.
That is for sure.
I note general agreement on that. If I was a woman would I be happy or feel secure about a situation like that? Would I be absolutely certain that the State, in its Constitution and its laws, was equally conscious of a crisis with which I might be faced? I am not saying that is right or wrong; I am just asking the question. I would not like to be in that situation, and time will tell whether we are going down a road that we will have to revisit. There is no ultimate solution to this problem, and I do not understand how the Government expects to resolve it.
On the definition of the beginning of life, I am a mere layman. I do not have any medical expertise, and I do not propose to go too deeply into that area.
I do not want to begin life with the Deputy either.
I am glad of that, Chairman.
Is that a proposition?
I saw the Minister of State, Deputy O'Dea, looking at me rather speculatively. I am not a lawyer either, but I am typical of the vast majority of those who have to make decisions on referenda and abide by the decisions taken by the Oireachtas and by the people in referenda. We have now produced two possible answers to a problem - whether life begins at the point of conception or implantation. I have a good idea why that change of emphasis has arisen at this stage. It is a little like sending for the sex police. We are trying to define something in a very precise way. In all the possibilities and circumstances that may arise I do not know whether the Minister, in his wisdom, and given all the medical and legal expertise available to him, will be able to define precisely the point at which life begins.
I did not——
I will rely on the advice available to the Minister, but I hope it is better advice than that given to us over the years——
Perhaps the Minister has the ultimate advice, but I am not so sure.
On the question of the incorporation of legislation in the Constitution.
We are not defining life.
We are raising the question and shifting the emphasis from one area to another. On the question of incorporating legislation in the Constitution, as a legislator I believe we are going down a dangerous road which will have consequences and set precedents. Situations will arise which will mean we will have to revisit this area, and the Minister may have to face countless similar requests for the incorporation of legislation such as this in the Constitution. If that happens, the Legislature will not be able to act in the future. It is already handicapped. We are beset on one side by the courts and on the other by the people, when they make their decision. We are getting to a situation where we may be limited in the degree to which we can exercise our function as legislators.
I ask the Deputy to be aware of the time because we want the Minister to respond, and we conclude at 6 p.m.
There are four minutes left.
Does the Minister have to respond before the vote?
I want to give the Minister an opportunity to respond to some of the questions raised.
I will conclude as quickly as possible. I emphasise that we, as legislators, have the power to legislate, but we are prevented from legislating in this situation.
Or amending legislation.
That is correct, or having anything to do with it, notwithstanding the circumstances that may arise. It must be interesting in the international arena that we have to have a referendum to resolve a health crisis that may arise. I will not delay the meeting by referring to the threat to health which, ultimately, could result in a threat to life. That is another serious issue.
That is excluded already.
It is, and I have not even referred to it.
There is no point.
There are many issues to be dealt with, notwithstanding the Minister's good intentions. I hope the people do not support the views of Government in this area.
I call the Minister.
Does the Minister accept all of the amendments?
Will the Minister indicate his acceptance of amendments?
I withdraw amendment No. 16 and we will resubmit it——
The Minister has got it wrong again.
Which one is amendmentNo. 16?
The medical practitioners——
Which amendments does the Minister intend to accept?
Deputies cannot have it every way. I take on board people's views. I want to re-examine the amendment over the next few days just to be absolutely sure about it. I could leave it as it is. The constitutional advice is that it is fine. I will examine it.
We want to put this into the Constitution.
I do not have a difficulty with Deputy Gormley's amendment. I am agreeable to it.
That is amendment No. 22.
It proposes to delete the word "counsels." I will seek permission to delete it and will table an amendment on Report Stage to accord with the Deputy's amendment.
I thank the Minister.
I ask for clarification. Is the Minister saying——
I appreciate the views of Deputies which were sincerely made. I cannot go over every point made as time does not permit me to do so. I went over a number of them in my previous address.
Is that the only amendment the Minister is accepting?
We tabled an amendment that covers what is proposed in the Deputy McManus's amendment. Amendment No. 30 is similar to her amendment regarding affirmation. In other words, any ministerial orders will have to be affirmed by the Oireachtas.
Despite the views articulated by Deputies Shatter and Barnes, the Fine Gael Party did not table an amendment to this section. The amendment was tabled by the Labour Party and the Green Party. Deputy Shatter pointed out that Fine Gael has a more diversified view than any other party, but I would not make that boast.
We are opposed to the section.
We are opposed to it.
It is significant that the Deputies' party did not table an amendment to it.
It is not even amendable.
The Minister did not answer my question.
No, the Minister did not.
May I have some silence, please?
Ós rud é go bhfuil sé a sé a chlog anois, ní foláir dom an cheist seo a leanas a chur de réir ordú an 20 Samhain ón Dáil: "Go ndéantar leis seo ar an mBille leasú 22 agus na leasuithe, seachas leasú 16, a chuir an tAire Sláinte agus Leanaí síos, ach nach bhfuil curtha de láimh: maidir leis na hailt sa Dara Sceideal - the Second Schedule, nach bhfuil curtha de láimh, go bhfanfaidh an t-alt nó, de réir mar is cuí, an t-alt mar a leasaíodh, mar chuid den Sceideal; go bhfanfaidh teideal na bhforálacha atá ar áireamh sa Sceideal sin mar chuid den Sceideal; go n-áontaítear leis seo an Dara Sceideal - the Second Schedule, mar a leasaíodh; go n-aontaítear leis seo ailt 1 and 2; agus go n-aontaítear leis seo an Réamhrá agus an Teideal."
As it is now 6 p.m., I am required to put the following question in accordance with an order of the Dáil of 20 November: "That amendment No. 22 and the amendments, other than amendment No. 16, set down by the Minister for Health and Children, and not disposed of, are hereby made to the Bill; in respect of the sections undisposed of in An Dara Sceideal - the Second Schedule, that the section or, as appropriate, the section, as amended, stand part of the Schedule; that the title of the provisions contained in that Schedule stand part of the Schedule; that An Dara Sceideal - the Second Schedule, as amended, is hereby agreed to; that sections 1 and 2 are hereby agreed to; and that the Preamble and the Title are hereby agreed to."
Cuireadh an cheist.
- Ahern, Noel.
- Brady, Martin.
- Dennehy, John.
- Fox, Mildred.
- Keaveney, Cecilia.
- Martin, Micheál.
- O’Keeffe, Batt.
- Wright, G. V.
- Barnes, Monica.
- Fitzgerald, Frances.
- Gormley, John.
- McManus, Liz.
- Mitchell, Gay.
- Neville, Dan.
- Ring, Michael.