An Bille um an gCúigiú Leasú is Fiche ar an mBunreacht (Beatha Dhaonna le linn Toirchis a Chosaint), 2001: An Dara Céim (Atógáil). Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Second Stage (Resumed).

Atairgeadh an cheist: "Go léifear an Bille an Dara hUair anois."

Question again proposed: "That the Bill be now read a Second Time."

Mr. Neville

Last evening I dealt specifically with the issue of suicide and termination of pregnancy in the case of a person who is suicidal. There is still stigma surrounding the whole area of suicide and while much has been done since the report of the national task force on suicide, there is a dearth of discussion and understanding of the complexity of suicide.

Last year more than £21 million was spent on road safety and £1.2 million on suicide prevention. However, more people die as a result of suicide than die on our roads. The issue of suicide in pregnancy has been simplified during the discussion, both in the House and outside. Suicide is a very complex issue and there is a debate over whether women who are suicidal and pregnant should be allowed to have an abortion. I do not accept that.

I see women who are pregnant and suicidal who can be treated and recover. There are women who are suicidal who can be shepherded through their pregnancies and come out at the end of it cured. However, there is a small number of cases of women who are suicidal, who are intent on taking their lives and whose lives are in danger if those pregnancies are not terminated. I accept this is a very small number of women, but these are real people.

In the Bill, the Government has rightly determined that an intervention can be made in the event of a threat to the woman's life because of physical illness. Is it not discriminating to say that if there is a real and substantial threat to a woman's life because of mental illness and the intent to take her life, a termination should not take place? Surely we are applying different standards in deciding on a termination in the event of a real threat to the life of a mother because of a physical illness and having a different standard for those who are severely mentally ill and suicidal. A pregnant woman who is suicidal would probably not be in position to travel because of the seriousness of her condition. The few people whose lives are threatened because of pregnancy are seriously ill and may not be physically or mentally capable of travelling for abortion to the UK.

On the Order of Business, the question of litigation in health and medical care was raised. This issue should be seriously examined by the Government because doctors, physicians and psychiatrists should have protection. I would be extremely concerned about any suggestion of litigation in a case where a psychiatrist decides an abortion should not take place and the woman subsequently dies by suicide.

In his contribution, the Minister stated that the Bill removes the possibility of abortion if suicide is threatened, which was a central issue in the X and C cases. I do not believe the threat of suicide should simply be a reason for abortion. I referred to the hard case where clinically a person was at a high risk of suicide – it was almost inevitable that she should die by suicide – which is the situation that should be dealt with. If it were permitted, there should be a detailed, controlled procedure for the final decision. A suggestion I received was for independent second and third opinions on the degree of suicidal risk. It is simplistic of the Minister to talk just about threatened suicide as an issue. It is more complex than that. A panel of psychiatrists should be available to the Department of Health and Children to examine any such cases, and people from outside the patient's health board area should be consulted.

It is simplistic of the Minister to state that it is difficult to assess if a risk of suicide is genuine. There are risk factors which can be explored concerning the individual herself, such as if she has a severe mental illness. Some 15% of people who are severely mentally ill die by suicide. Previous attempts, the storing of tablets, and the means used are barometers for the psychiatric profession to assess risks. The Minister is being too simplistic when he says it is difficult to assess the risks of suicide because psychiatrists make that decision on an ongoing basis.

The Minister stated the Government is satisfied there would not be widespread support for providing abortions to women in crisis pregnancy, which would open the way for abortion on all grounds. What does the Minister mean by a crisis pregnancy? I have not heard it explained. Most people accept it is an unwanted, unplanned pregnancy, but a crisis pregnancy can arise in many situations. A planned pregnancy can become a crisis one and therefore we must be careful in using such language. A person with a planned pregnancy can subsequently have both physical and mental complications which turn it into a crisis.

A meeting in Cork was addressed by the internationally recognised compassionate sociologist, Rev. Fr. Charles Ruby, of Chicago who has been involved for many decades with the suicide bereaved. He works with the Catholic charities of the arch-diocese of Chicago and publishes a monthly magazine, Obelisk, Leaving Outreach to the Survivors of Suicide for the suicide bereaved. He said that death from a physical ailment was a consequence of that ailment, in other words, a death from cancer was due to the consequences of that disease. He compared this to suicide as a consequence of a severe mental and despairing disposition or condition. The Government stated that its proposals are specifically drafted to ensure the non-recognition of a risk of suicide as a grounds for lawful termination of a life of the unborn does not result in persons, who would otherwise be free to travel abroad, being refused permission in any circumstances by any court exercising its personal jurisdiction over them from doing so. The Government is saying it is essential to a suicidal disposition that the woman can travel to the UK, and that there is nothing in the proposed amendment or the envisaged legislation that would render it illegal for the health board to assist the woman to travel outside the jurisdiction. People in extreme distress and in a suicidal condition would not be capable of travelling abroad. Some of them would be hospitalised because they need constant psychiatric care. What is the answer for a person in such circumstances?

We must put suicide in pregnancy in context. Studies in this area accept that women who are pregnant are less likely to take their lives than those who are not. Louis Appleby's studies over ten years found that the risk of suicide in pregnancy in the UK was one sixth of that expected for non-pregnant women. A total of 14 pregnant women died by suicide between 1973 and 1984, compared to an estimated and statistically expected 281.5 non-pregnant women. Research shows that pregnant women had one-twentieth of the expected rate of suicide. That led Appleby to say that pregnancy protects women from suicide. The 1999 study in the United States by Marsock shows that a pregnant woman has about one in three-tenths the chance of dying by suicide as that of a non-pregnant woman of similar age. These percentages are low and the dearth of research in the area limits knowledge in the area of the effects of pregnancy on suicide.

Dr. O'Hanlon

I know of Deputy Neville's great interest in suicide and I was surprised that he accused the Government of discriminating against women who are suicidal by not allowing them to have a termination of pregnancy. I would have thought he would have had the evidence that was presented to the All-party Committee on the Constitution as well as medical evidence from all around the world. That evidence takes a view contrary to Deputy Neville's, the facts are there to be seen. Pregnancy is not a risk factor in suicide. Deputy Neville referred to the Appleby study which showed that pregnant women aged 15-44 were 20 times less likely to commit suicide than non-pregnant women. Pokorney in the United States found that 0.6 per 100,000 pregnant women committed suicide while the rate for non-pregnant women was 3.5 per 100,000.

Mr. Neville

There are still cases.

Dr. O'Hanlon

The evidence is that women who go for abortion are more likely to commit suicide. To suggest that a pregnant women who is suicidal should be entitled to a termination of pregnancy—

Mr. Neville

In very extreme circumstances.

Dr. O'Hanlon

The Deputy accused the Government last night, he said, "It is discriminatory to say a woman who is seriously suicidal and who is suffering from a serious mental health condition cannot be protected in terms of terminating her pregnancy while this can be done where a woman is in real danger due to a physical illness." All the medical evidence points to the contrary. A study in Finland showed that while pregnancy is a potent protector against suicide, induced abortion appears to be a risk factor. The survey showed that 73 women who committed suicide from 1987 to 1994 found a mean annual suicide rate of 11.3 per 100,000; the suicide rate associated with birth was 5.9 and that associated with induced abortion was 34.7.

I am sure that neither Professor Casey, the professor of psychiatry at UCD, or Dr. Kevin Malone, who is probably doing the most research on an all-Ireland basis, would agree with Deputy Neville. They are certainly not saying that they are unhappy with the Bill. When the Supreme Court dealt with the X case, the late Dr. Kelleher – who had a very distinguished record in research into suicide in this country – pointed out that "[suicide] is a rare event and in all rare events the greatest likelihood is that the event will not occur. The research evidence indicates that medicine and psychology does not have ability to predict suicide, even with a moderate degree of accuracy."

A number of doctors attended the hearings of the All-party Committee on the Constitution including Dr. Sean Daly, Master of the Coombe, Dr. Peter McKenna, Master of the Rotunda, Dr. Anthony Clare, director of St. Patrick's Hospital, Dr. John Sheehan, consultant psychiatrist at the Rotunda and Dr. Hannah McGee representing Psychologists for Freedom of Information and they all had the same view. The general thrust of findings presented was that completed suicide during pregnancy is significantly reduced over and above the levels in non-pregnant women of similar ages.

Mr. J. O'Keeffe

That is accepted.

Dr. O'Hanlon

They pointed out that for every 100 cases of suicide predicted, the prophecy was wrong 97 times.

The evidence of Dr. Anthony Clare is also worth looking at. He said:

If I were to summarise, I would say that the only real reason . . . you will find psychiatrists involved in this is, because, . . . we have been drawn in to try and get people off the hook over this issue . . . 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.

As a medical doctor and a former general practitioner, my main concern with the judgment of the Supreme Court was that it would open the way for abortion on demand. Suicide is a subjective feeling. If a woman were to go to her doctor and say she was going to commit suicide if she could not have a termination of pregnancy, no doctor – psychiatrist or GP – or anybody else is in a position to say if she will or will not commit suicide. It could lead to abortion on demand and that is one of the reasons I am delighted to see the Government going back to the circumstances that existed prior to the Supreme Court decision.

The Commission of Enquiry into the Abortion Act, 1967, in England was chaired by Lord Rawlinson. It reported:

The Commission heard from witnesses representing the Royal College of Psychiatrists who stated that although the majority of abortions are carried out on the ground of danger to the mother's health, there is no psychiatric justification for abortion. Thus the Commission believes that to perform abortions on this ground is not only questionable in terms of compliance with the law, but also puts women at risk of suffering a psychiatric disturbance after abortion without alleviating any psychiatric problems that already exist.

The woman who has depression or who feels suicidal during pregnancy, is certainly entitled to full services support, but the answer is to offer appropriate psychiatric help. The full range of psychiatric services should be and are available to those women.

I welcome the Bill. The title of it explains what it is about, the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001. The protection of human life places a major responsibility on the State and on the professionals who have responsibility for ensuring a safe pregnancy. It is always important to recognise that there are two lives involved – the mother and the child in the womb. This legislation is caring, compassionate and balanced. It provides for the woman and her child and at the same time ensures that medical procedures necessary to save the life of the mother will not be denied.

Before the 1997 general election, the Taoiseach promised the people that they would have the final decision on this by way of referendum. He is now fulfilling that promise. I am disappointed at Members of the Oireachtas who do not want a referendum. Everybody has to accept that a referendum is the greatest act of democracy that is available to the people. It is right to allow the people to make a decision by way of referendum on this tremendously important issue. It is also right that the legislation, when enacted, can only be changed by way of referendum. It would not make much sense to consult the people and then tell them the Oireachtas could overrule their decision. It is, therefore, right to go to the people.

The Taoiseach promised a referendum in 1997 and I commend him and the Government for not rushing because the approach they adopted to this difficult and complex issue was correct. Work on the Green Paper commenced in 1997 and concluded in December 1999. That was recognised by Professor Bonnar when he appeared before the All-Party Committee on the Constitution. He is one of the most eminent obstetricians and gynaecologists in the State. He has recently retired as professor of obstetrics and gynaecology in Trinity College, Dublin, after 25 years and is chairman of the Institute of Obstetricians and Gynaecologists. He referred to the Green Paper as one of the most comprehensive documents he had ever seen in regard to legislation on abortion.

The publication of the Green Paper was followed by the hearings of the All-Party Committee on the Constitution, which was very ably chaired by Deputy Brian Lenihan who was ably assisted by Deputy Jim O'Keeffe. They invited and received numerous written and oral submissions and interviewed many individuals and groups with particular expertise in the complex issues involved. This was followed by the work of the Cabinet sub-committee and the presentation of the legislation by the Minister for Health and Children.

There is a legislative prohibition on abortion while at the same time best medical practice is preserved. I have no doubt people do not want a law which would compromise existing practice that is geared to protect both the mother and the child. The legislation meets that requirement. The All-Party Committee on the Constitution received numerous submissions from the medical profession, particularly members of the Institute of Obstetricians and Gynaecologists who are the experts in the field of pregnancy.

The institute stated in its submission:

The Institute of Obstetricians and Gynaecologists is the professional body representing the speciality of obstetrics and gynaecology in Ireland. The executive council of the institute has examined the Green Paper on Abortion and the members have been consulted. We welcome the Green Paper, which provides a comprehensive, up-to-date and objective analysis of the issues arising in the care of the pregnant woman. Our expertise is in the medical area and our comments are confined to these aspects.

In current obstetrical practice, rare complications can arise where therapeutic intervention is required at a stage in pregnancy when there will be little or no prospect for the survival of the baby due to extreme immaturity. In these exceptional situations, failure to intervene may result in the death of both mother and baby. We consider that there is a fundamental difference between abortion carried out with the intention of taking the life of the baby, for example, for social reasons, and the unavoidable death of the baby resulting from a central treatment to protect the life of the mother.

We recognise our responsibility to provide after care for women who decide to leave the State for termination of pregnancy. We would recommend that full support and follow up services be made available for all women whose pregnancies have been terminated whatever the circumstances.

The second paragraph is very important. When Professor Bonnar attended the committee he elaborated on the submission. He pointed out that the principle underlying the work of obstetricians and gynaecologists was to protect the lives of both the mother and child. He hoped they would never be compromised by the introduction of abortion in the sense that he would use, in other words, simply asking the obstetrician to intervene to get rid of unwanted pregnancies. That represents the view of the overwhelming majority of the people and the legislation is very much in line with that.

The Bill brings more clarity to this complex issue than the 1992 legislation. Abortion is clearly defined as "the intentional destruction by any means of unborn human life after implantation in the womb of a woman". The definition of abortion excludes medical procedures that are necessary to save the life of the mother. Many people are concerned and they are writing to Members on a daily basis about the protection of life before implantation. Article 40.3.3. of the Constitution protects all human life and the proposal before us is not intended to address the wider concerns in the area of assisted human reproduction and issues such as stem cell research and cloning, which have serious consequences. The legislation is specifically concerned with protecting the life of the unborn during pregnancy.

The issues involved in cloning, stem cell research and IVF are very difficult, complex matters and they are being addressed by the Government in the context of the Commission on Assisted Human Reproduction, which was established by the Minister for Health and Children in March 2000. This expert commission has been asked to prepare a report on the possible approaches to the regulation of all aspects of assisted human reproduction and the social, ethical and legal factors to be taken into account in determining public policy in the area. I have no doubt when it reports more legislation will be necessary because it is a complex area.

I welcome the establishment of the crisis pregnancy agency. As a medical doctor who has worked in general practice, I am well aware of the trauma of unwanted pregnancy and I take Deputy Neville's point that crises can arise in a normal wanted pregnancy, although they are generally referred to the obstetrician who is competent to deal with these cases. The Minister, in establishing the crisis pregnancy agency, has recognised this problem which must be addressed in a caring way. There is a need for more education, advice and support during pregnancy for the women involved. Support services must also be provided for women who have had abortions abroad and these services must be delivered in a sensitive and compassionate manner. I am delighted that the Minister is providing €6.5 million in 2002 for the agency. I have no doubt the agency will do a good job.

I welcome the Bill and I will ask people to come out and support the proposal in the referendum.

Mr. J. O'Keeffe

I have the most serious reservations about the Government's proposals. They deserve serious consideration and both I and my party have given them such but at the end of the day one must examine what the outcome of these proposals will be if they are implemented.

Essentially, the result of the Government proposals will be to reduce both the rights of the unborn and the rights of women as they exist now. One cannot deny that incontrovertible fact.

On that basis I find it very difficult to support such an approach. The problem for the unborn is that the proposals infer that implantation rather than conception is the first moment of life. Thus the proposals provide no protection for the unborn in the period between conception and implantation. As I understand it this period can range up to about 14 days. I heard the medical evidence at the All-Party Committee and I gather that what happens is that it takes six or seven days before the fertilised ovum – at that stage called the blastocyst – begins implantation. Normally by day 14 that implantation is completed. What is very relevant is that section 1 of the proposed Bill very clearly provides protection after implantation. What is the situation about protection in the 14 days prior to implantation? A satisfactory answer has not been given to that question by the Government.

These proposals and the result of these proposals will be to reduce the rights of women. Under the proposals a medical procedure as a result of which unborn human life is ended is not regarded as abortion where, in the opinion of the doctor, such is necessary to prevent a real and substantial risk of loss of the woman's life. However, this exemption specifically excludes the risk of loss of the woman's life by self-destruction. What is currently provided for as a result of the Supreme Court decisions in the X and C cases is being excluded. Essentially the Bill says that serious physical conditions are covered by the exemption but not conditions now covered, such as black depression leading to suicidal tendencies.

I take the point made by Dr. O'Hanlon when he analysed the evidence before the all-party committee in relation to suicide. I accept the evidence given that the tendency to commit suicide is reduced as a consequence of pregnancy rather than otherwise. However, from the point of both physical and psychiatric conditions these are rare cases. Similarly, the evidence of the masters of the three main maternity hospitals was that these physical conditions are very rare; they talked about a few each year where therapeutic procedures had to be carried out which resulted in abortion for reasons of grave physical difficulty experienced by the expectant mother. We are talking about quite rare conditions. Do we condemn those who suffer from those rare conditions to bear with them and perhaps to die? I do not think we as legislators can very easily differentiate between the two. I question the advisability of setting aside the judgment of the Supreme Court in a way that will reduce the rights of women in that regard.

I am delighted with the tone of this debate. We had considerable debates at the all-party committee which were conducted under the very able chairmanship of my colleague, Deputy Brian Lenihan. I was delighted to be vice-chair and to participate with him in those discussions. They were very serious discussions but everybody tried to contribute in a very fair and reasoned and reasonable and sensitive way. I am pleased that the debate in the House is along the same lines.

The onus of proof is on the Government. It must convince the Dáil and the people that there is merit in the proposals. So far, that onus has not been discharged. To a large degree that is the background for the very reasoned approach that Fine Gael is taking to these proposals. We tabled a reasoned amendment because we believe this is a very complex area. The proposals are quite unusual – a constitutional cocktail that has not been seen before.

At the time of the all-party committee report we committed ourselves to giving the most serious consideration to any proposals that would be put forward and on that basis we have strongly proposed a deferral of the second reading to allow further time for discussion; to allow the Government time to present to the Dáil satisfactory reasons for the mechanisms being proposed. I am quite concerned about that constitutional cocktail and its implication for the Oireachtas and the courts and the public interest. There is no advantage in rushing this Bill.

I was a Member of this House in 1982 and 1983 when I saw an amendment that was pushed on the Dáil against the advice of the Attorney General, against the advice of the Minister, and against the advice of the then Government. There was a tide of emotion behind that amendment. I will never forget that because it showed that one does not legislate properly on a tide of emotion; in fact those who pushed that amendment found that the chickens came home to roost. The warnings at the time were that the amendment could lead to a judicial interpretation contrary to what the proposers felt they were proposing – and that is what happened. We must be very careful in our legislation and we must be very careful about how we amend the Constitution.

I do not approve of the procedures being adopted. The ship of state is heading into uncharted constitutional waters. There were warnings in 1982 as to the unpredictable consequences of the approach then adopted and we must also sound a warning. There are dangers in attempting to graft a constitutional prohibition on to the legislative prohibition. I worry about this approach and that the consequences of that approach may be quite unpredictable and certainly need to be teased out and examined further.

I am concerned about a situation where the Government seeks to justify legislation on the statute book which cannot be amended by the Oireachtas but which under its provisions can allow a Minister make regulations without any reference to anybody. That seems to be a very odd approach and it certainly has not been justified by the Government. The Government is saying that one must go back to the people to amend the Bill but at the same time the Minister of the day will be able to make orders under section 5 without even having them approved by the Dáil. I accept that such orders will be laid before the Dáil in the Oireachtas library, just as is the case with hundreds of other orders. Everyone knows the practical effect of that is that, as a consequence, nothing ever happens on the floor of the House. I consider such an approach to be undemocratic and in fact anti-democratic. It is a Committee Stage point but one aspect in relation to section 5 is odd. Under section 5, the Minister is allowed to make such provisions relating to the making of, keeping of and confirmation of records but, under the definition section, there is an implication that he is entitled to establish approved places, which effectively will be hospitals or clinics, where abortions can be carried out. There is no specific power under section 5 to make an order in relation to approved places and perhaps this point could be noted for clarification because it may be defective drafting.

The overall point is what type of democracy we have and what type we want. We are part of a tradition of representative democracy. These issues were considered hundreds of years ago in terms of the difference between the direct democracy school and the ideas of Rousseau and the school of representative democracy under which people would be indirectly consulted through representatives, as favoured by John Stuart Mill. Most Western democracies adopted the representative approach, the only exception being Switzerland which uses the direct democracy model. However, what the Government is trying to do under the Bill is contrary to our constitutional and democratic tradition. It is grafting on the direct democracy approach to our existing constitutional and democratic model, which is dangerous.

The Minister referred to the 100,000 submissions and representations that were made to the all-party committee. I analysed many of them and 95,000 of them demanded support for option one in the Green Paper, which is an absolute constitutional ban on abortion. The postcards and petitions were organised throughout the country because some people genuinely believe that is the right approach; they got 95,000 people to sign petitions and write postcards along those lines. However, it was clear from the evidence given to the all-party committee that if that route had been followed, women could have been condemned to death. One could not accept an absolute constitutional ban on abortion because it would effectively outlaw existing medical procedures in the rare cases where therapeutic intervention is required, resulting in the termination of pregnancy, to save the life of a mother. This is a warning to us.

People who favour a further referendum at this stage in the main accept that option one, an absolute constitutional ban on abortion, is out the window. They accept the medical evidence given to the all-party committee in that regard. However, they now want some type of half way measure. Their approach is that half a loaf is better than no bread. My view is that the half a loaf approach could give rise to severe constitutional indigestion because a half baked half loaf could cause damage. It could produce unpredictable results and make the situation worse in the future. The idea that there should be some type of referendum on some type of half baked half loaf, rather than no referendum, will do nothing for those who are genuinely concerned that abortion could become available in Ireland. I do not believe that approach would in any way guarantee the desired result. My view is that we must proceed with extreme caution. Unless we are convinced beyond reasonable doubt, we should not proceed at all along the constitutional route.

I question why we are involved in this exercise at all because we are not having a serious debate about abortion. The first point about any policy that is supposed to address the issue of abortion is whether it will reduce the number of Irish women who have abortions. The answer is "no" because, irrespective of the type of constitutional or legislative procedures that are put in place, they will have no impact whatsoever on abortions carried out in Ireland given that there is none. The only abortions carried out are those under approved medical procedures to save the life of the mother. Nevertheless, 7,000 Irish women and girls have abortions each year and these proposals will not affect one of them.

It is also important to remember that the X case judgment had no impact of any kind on current medical practice in hospitals. No abortions are carried out in the State because of the threat of suicide and the Medical Council guidelines suggest that any doctor who performs such an abortion would be guilty of professional misconduct. We want to exclude suicide as a ground but this was put before the people in 1992. In substance, we have returned to the position in 1992 when that proposal was rejected by two to one.

We should be debating the £50 million plan that I, on behalf of the Fine Gael Party, proposed to the all-party committee 18 months ago. There is no debate on that plan because serious issues arise in terms of how it should be implemented. Another aspect is that because of the time being spent on considering legislative and constitutional proposals, which will have no impact whatsoever on the rate of abortion, we are not expending energy on considering what type of proper plan should be put in place to help the women involved and establish preventative and educational measures. We should decide whether to adopt a contraceptive approach or one of the other approaches advocated before the committee. However, nothing is being done about this aspect.

I am glad that 18 months after I bored the committee to tears by pressing this issue at every meeting there is a proposal to set up an agency, which will be operative next year. Why are we not debating what that agency should do to bring about a result? What type of support will be available to young girls or women in crisis pregnancies? What support in terms of counselling and medical check-ups will be provided to women who have had abortions? These aspects are not being debated. If we are really concerned about reducing the rate of abortion and supporting women and girls with crisis pregnancies, we should debate issues such as what we can do in practical terms for them.

The approach adopted by the Government in sailing into uncharted constitutional waters is dangerous. There is a risk that the use of a constitutional amendment as a procedure to accommodate specific legislation in the Constitution could establish an undesirable precedent in so far as a similar approach might be used to facilitate interference with other constitutional rights. The Oireachtas must reflect carefully before adopting any particular technical approach of that type because of its potential to reduce or alter other existing rights in the future. On that basis, I strongly urge the Government to accept the Fine Gael Party's amendment and to defer the Second Reading of the Bill.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I am grateful for the opportunity to welcome and discuss the Government's package of proposals for constitutional and legislative reform in relation to the protection of human life in pregnancy. The issues we are discussing are complex and sensitive. They relate to the protection of unborn human life and ensuring that pregnant women continue to have access to all necessary medical treatment where such treatment becomes necessary in the course of pregnancy.

I regard this issue as one which deserves to be lifted above the level of the cut and thrust of party political debate. The issue is too sensitive for that type of treatment but it is an issue which demands to be resolved. I firmly believe the Government's proposals strike the right balance, delivering constitutional, legislative, caring intervention in the area of crisis pregnancy. I wholeheartedly agree with the view expressed by the Taoiseach that doing nothing is not an option. The reality is that previous attempts to reconcile the rights of the mother and the unborn child were rejected by the people in the 1992 referendum. At present, the only real defence against widespread use of the X case as a basis for social abortion in Ireland is the ethical consensus in the medical profession.

The express terms of the 1983 amendment to the Constitution demand a legislative response from the Oireachtas. However, no laws were enacted on foot of that amendment. The proposals currently before us represent the Government taking its role as legislators seriously. It is fair to say the outcome of the various referenda left a widespread feeling of unfinished business among the people. This places a heavy onus on us as legislators to provide the leadership necessary to underpin the issue of the protection of human life in pregnancy. The Taoiseach's stated position in the 1997 general election was that a key element in establishing a national consensus and in creating a workable legal basis for protecting the lives of both women and the unborn is to give the people a direct say in resolving that unfinished business.

Once in Government, we set up an interdepartmental working group whose findings were considered by a Cabinet sub-committee, chaired by the then Minister for Health and Children, Deputy Cowen. This led to the publication of a Green Paper in September 1999 which was subsequently referred to the All-Party Committee on the Constitution, chaired by Deputy Brian Lenihan. I take this opportunity to pay tribute to him and the committee's vice-chairman, Deputy Jim O'Keeffe, for their work on and commitment to this project. The proceedings of the all-party committee and its subsequent report were generally fair, balanced and of great value in educating and informing public and political opinion. Certainly, as far as the Cabinet sub-committee, subsequently re-formed following publication of the all-party committee's report in November 2000, and on which I have the honour of serving, was concerned, that report and the preceding process of consultation and inquiry was of immense value.

The Cabinet sub-committee was given the task of considering options and preparing proposals for consideration. I can truthfully say this process was not easy but I believe we discharged our onerous responsibility with sensitivity and frankness. That process brought the sub-committee to this stage. The Government has concluded that no simple sentence or paragraph can be inserted into the Constitution which, by itself, would amount to a balanced, effective, legal response to the complex medical and legal issues surrounding the protection of human life in pregnancy. Having carefully reviewed all of the information and advice available, there cannot be any doubt that the proper place to strike that complex balance is in legislation passed by the people in a referendum to amend the Constitution. I have no doubt the proposals before us in the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill are the first legislative response to the issues raised by the 1983 amendment to the Constitution and the X case.

It is clear that this is no knee-jerk or sloppy response to an issue which causes much pain and suffering. It is a measured and calculated response developed only after much deliberation. It is worth restating what the Government has decided to do. We will put an amendment to the people which will result in two new subsections being added to Article 40.3 of the Constitution which will give constitutional protection from the adoption by the Oireachtas of a legislative approach, thereby guaranteeing that the terms of the legislation will be seen and approved in advance by the people and provide that any future legislative amendment must be approved by the people before being signed into law by the President. This approach, modelled on that used successfully in regard to the Good Friday Agreement, puts this issue where it belongs – on a legislative basis and in the hands of the Irish people.

The constitutional changes being sought ensure the legislation has a sound constitutional basis and that the balance so carefully struck will not be threatened by a legal challenge from any source. It also gives the people the assurance that they must be consulted in the event of further proposed change. While we are addressing the complex issues surrounding the protection of unborn human life, we wish to ensure at the same time that pregnant women continue to have access to all necessary medical treatment if problems arise in the course of their pregnancies. A key element of the proposal is that the amendment will occur only if the Oireachtas enacts the Protection of Human Life in Pregnancy Act in the precise terms published as a schedule to the Bill within six months. This is only right and proper as it is imperative the Irish people know exactly what they are voting for.

The Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001 is in line with the third option outlined in the report of the all-party committee. For the first time, the Bill protects women and the unborn in pregnancy. It accommodates existing medical practice which safeguards the life of a woman from exposure to real and substantial risk. It gives complete protection to the medical procedures necessary to avoid those risks and excludes them in the definition of abortion. The House will be aware that in a small number of cases of strict and undeniable medical necessity, procedures can entail or result in the ending of the life of the unborn. However, the new law defines abortion in a way which clearly excludes such ethically legitimate procedures from being termed an abortion under our criminal law. I remain convinced that in terms of the balance we know is so necessary, the measures protect the life of the unborn in the strongest possible way and most definitely do not provide for social abortion.

The late Mr. Justice Niall McCarthy stated in 1992:

In the context of the eight years that have passed since the amendment [the 1983 pro-life amendment], the failure by the Legislature to enact the appropriate legislation is no longer just unfortunate, it is inexcusable.

Nine years on, that statement has achieved an even greater force. That is why the Government has resolved to face up to the issue once and for all and to create the proper context in which an appropriate legislative response can be placed on the Statute Book. It creates the framework within which we, as legislators, can exercise our responsibility in the name of the people and with their express endorsement. This issue is sufficiently important for us to adopt this strategy.

I readily acknowledge that the issue of suicide is a difficult one for many people. The Bill provides that the risk of suicide will no longer be a ground for legal abortion in this State. The Government believes the conclusions of the report of the all-party committee do not support maintenance of the suicide risk as a ground for abortion in Ireland, a view with which I fully concur. It should be noted that suicide risk has been advanced only as a ground for abortion in cases in which the State, directly or indirectly, attempted to restrict a woman's freedom to travel. The terms of the new law will protect that freedom and will not compromise it in any way.

I make no apology for stating my opposition to so-called social abortion. I do not support this so-called right and would not be standing here today in support of the Government's proposals if we were legislating for such an outcome. I believe the Irish people are implacably opposed to social abortion and I am glad to say the Government shares that opposition. I am aware that not every viewpoint or interest group will be entirely satisfied with every detail of the package being presented by the Government. If they were, this issue would have been resolved long ago. However, the Government has achieved a package of measures which can command sufficient broad-based consensus to be workable and which recognises the rights of the unborn child and the pregnant woman. It is a reasonable and measured response capable of resolving an issue which has exercised our minds for so long.

The Government's proposals are innovative in that they adopt a holistic approach, concentrating not just on legal-constitutional issues but also on caring and practical intervention in the area of crisis pregnancy. A study commissioned by the Department of Health and Children entitled Women and Crisis Pregnancy gave some useful insights into the factors leading to crisis pregnancy and the experiences of women in that situation. Furthermore, the all-party committee identified a range of issues to be addressed in any strategy to combat crisis pregnancy. It recognised that several Departments, State bodies and voluntary organisations have responsibilities in this area and that a single planning focus was required to ensure successful intervention with women attempting to deal with crisis pregnancies.

Law is only one element of the picture; education, advice, care and compassion are in many ways equally important. That is why the establishment of the new crisis pregnancy agency by the Minister for Health and Children is a crucial element in the Government's strategy to deal with this important issue. The crisis pregnancy agency will draw up a national strategy to address crisis pregnancy, to promote options other than abortion and to provide for post-abortion services. The agency will be responsible for overseeing the implementation of the strategy.

It is incumbent on us to do all we can to mobilise the resources of the State to assist women who have to decide whether to proceed with a pregnancy. Crisis pregnancies result in a significant number of Irish women travelling abroad for abortions. The State must use all its means to strive honestly and fairly to reduce the incidence of crisis pregnancy. Those who face such problems must be assisted to become aware of their options other than abortion. We should enable them to consider carefully such options and assist them to make decisions. The new crisis pregnancy agency will deal with many issues, including those I have outlined. Crucially, preventative measures, including the education of young people and adults, as well as services appropriate to their needs and lifestyles, will be addressed by the agency. It will work with a wide range of organisations, in the health, education, employment and housing sectors. I am glad the agency will promote prevention. The all-party committee recommended that the agency be established for ten years initially and this has been done. Initial funding of €6.5 million will be provided for the agency by the Government in 2002.

The package of measures that has been proposed should lead to a reduction in the incidence of crisis pregnancies and will give the widest possible assistance to women facing such difficulties. I reject the inferences made inside and outside the House that the Government's proposals are, at best, inadequate and, at worst, misogynistic. The issue of suicide has been used to attack the Government's proposals, but no reasonable or workable alternative to the balanced constitutional and legislative framework that is at the heart of the Government's caring strategy has been suggested. The evidence, analysis and conclusions presented in the all-party committee's report do not support allowing the risk of suicide to be given as a ground for abortion. The conclusion of the committee members is backed by the testimony of psychiatrists, whose testimony did not support the thesis of the termination of pregnancy as a means of alleviating the threat of suicide.

Abortion is one of the most difficult issues with which a woman can be faced, privately and publicly. We should not run away from it because it is a difficult issue. As male and female legislators, it is our duty to address the painful and difficult issues that abortion raises. The proposals to be put to the people represent a fair reflection of the belief that abortion should not be permitted in this country. The medical procedures required to protect the lives of pregnant women need to be safeguarded. I have made no secret of the fact that I support the right to life of the unborn child and am opposed to abortion on demand. The Government's proposals offer strong protection to the unborn and ensure abortion on demand will not be available. I welcome this Bill's protection of the life of pregnant women and its introduction of the necessary supports to deal with crisis pregnancies.

Debate on this topic will never be easy, but we must debate it. I firmly hope that as the debate moves from this House, it will be conducted in a tolerant atmosphere, without acrimony or bitterness. We must accept that there are strongly held views on abortion. We do not have to endure intolerance, personal vilification or scaremongering on either side of the argument.

Ms O'Sullivan

I fear this debate will add to the cynical or indifferent view of politics held by many Irish people. It is estimated that 7,000 Irish women will have abortions this year, which means we have one of the highest rates of abortion in Europe. Irish women's abortions do not take place on Irish territory. Instead of addressing the real issue, public representatives are being asked to try to include an exact wording in the Constitution to balance the conflicting rights of a mother and her unborn foetus. This seems to happen once every decade, but we have to ask if we will ever succeed. The issue has been addressed seriously in this debate, particularly by Deputy Jim O'Keeffe. The Minister for Justice, Equality and Law Reform has just acknowledged that there are no simple words that can be put in the Constitution to resolve the complex matter of the conflicting rights of two humans, a mother and her unborn child. It is impossible to determine an appropriate wording.

Have we learnt nothing from 1983 and 1992? Do we not believe the X and C cases happened? Is it not likely that we will get it wrong for a third time? Do we have a guarantee that the proposal to be put before the people in this case is better than that in 1983 or 1992? While this House engages in a hand-wringing ritual, a Riverdance on the pure stage of holy Ireland, 7,000 people go to England to have abortions. As Deputy Jim O'Keeffe has rightly said, little or no attention is being given to the plight of such women. Instead, we are once more concentrating on trying to get an appropriate wording into the Constitution.

Has this debate made a difference to the numbers of Irish women travelling for abortions? That the estimated number of women who will travel for an abortion has increased this year, to 7,000, suggests it is obvious the debate has not had an impact. On this occasion, the people are being asked if they would like to change the 1992 decision, when a physical or mental threat to the life of a pregnant woman was considered an appropriate reason to allow a woman to choose to have an abortion. It is now proposed that the mental threat should not be considered an appropriate reason. It is considered that in 1992, an emotional reaction to a particular case made the people a little irrational. They say we may be more calm and rational on this occasion.

What if there is another case, which appears to be as unlikely as the X or C cases? What if a woman says she fears she may take her own life in a moment of despair, as the circumstances of her pregnancy have made her distressed and upset? In such a scenario, the law would not allow her to consider abortion. If she attempts suicide and is brought to the accident and emergency department of her local hospital, it may be considered that her life is in physical danger. The legislation that it is proposed to include in the Constitution means that in such circumstances, she may be allowed to terminate her pregnancy. If her suicide attempt is successful, we will have failed to save her life or that of her unborn child. Such a possibility means we should think again. Should we have intervened before her distraught state led her to attempt to kill herself? I do not believe such a case is less likely than the X or C cases. If it happened after we had changed the Constitution according to these proposals, the Irish people would react, as in the X and C cases, by saying that attempts should have been made to intervene when the lives of the woman and her unborn child could have been saved.

I put this case forward as we seem to be proceeding with the view that we have got it right on this occasion. We got it wrong in 1983 and 1992, however. The issue of abortion is too complicated to put into the Constitution in this manner. If this legislation is put into the Constitution, as proposed, it is likely there will have to be another referendum in a number of years. I am alarmed to hear the concerns expressed by Deputy Jim O'Keeffe, who is a member of the all-party committee on the Constitution, about departing from normal procedure by putting an entire Bill into the Constitution. The Deputy said that such a move is dangerous.

What will happen if a psychiatrist says to his medical colleagues he believes a patient who is threatening suicide will carry out the threat? What should the psychiatrist's colleagues do? I am posing genuine questions that should be discussed before we career once more into the certainty of 1983, when we believed we had found the right way. I was involved in the 1983 campaign and I remember that those of us who opposed the amendment asked how the balance of rights between the mother and her unborn child was to be addressed. We were told that our concerns were groundless. When we continued to ask questions about the use of the morning after pill and certain methods of contraception, we were accused of wanting to kill babies. It was as simple as that in 1983 and accusations flew at the time. The very people who pushed for the amendment in 1983 decided, because of the judgments in the Supreme Court, that in fact the wording was wrong and needed to be changed. So we had the referendum in 1992 and now we propose another which will probably be held in 2002.

We are again asking people to make difficult decisions in relation to the Constitution. I believe that we should legislate instead for what was decided by the people in 1992. We should address the issue of legislation seriously and should consult psychiatrists, medical people and those with strong theological beliefs and should try to get the legislation as close as possible to what the majority of Irish people want – to exclude abortion on demand. We should incorporate the views of the people in legislation rather than try again to encompass such a complex issue in the Constitution.

Procedures like the morning after pill and certain contraceptive methods are accepted as part of the compromise being proposed in this constitutional amendment and legislation. Since when did they become morally acceptable to those who led the campaign in 1983? Are they satisfied that this issue, which was such a fundamental moral principle in 1983, is now being dealt with by a political compromise? Some of them are not. I refer in particular to Nora Bennis, a woman in my constituency who has campaigned with clarity and consistency on this issue. She has declared publicly that she is against the proposed amendment to the Constitution because she believes that human life begins at conception. She believes the morning after pill causes abortion to which she is absolutely opposed in all circumstances. I respect that position.

To be honest, I am not quite sure when human life begins, whether it is at conception or at implantation. I am not a scientist and I have no moral certainty with regard to the issue. I understand that some people do and, as Deputy O'Keeffe said, all those who sent us those postcards apparently have moral certainty on the issue. The Government proposals do not encompass the sincerely held views of those people or those of someone like Nora Bennis. Neither do they encompass the views of Deputy Neville and others concerned by the trivialisation of suicide in this debate.

These proposals are a political compromise designed to get the Government off the hook of a promise it should not have made. Suicide is an issue that needs to be addressed seriously. We cannot simply dismiss the issue of suicide with regard to a pregnant woman because people can quote statistics which show a pregnant woman is less likely to commit suicide than a woman in other circumstances. Of course that is true. Most women are delighted to be pregnant and look forward to the birth of a child with pleasure and experience the first movement of life in their womb as probably one of the most extraordinary, positive experiences of their lives. However, for a small number of women it is life threatening. We should address this issue in legislation and have proper debate on the use and wording of that legislation in order to address the people's concerns that there could be a loophole for, as the Minister described it, social abortion.

I do not know what social abortion is but I genuinely respect the view of people who feel that a threat of suicide could be used by somebody who just wanted an abortion for a reason the majority of Irish people would feel inappropriate. Surely we can find wording in legislation that will address that issue. We can take the issue of suicide seriously enough not to completely reject the possibility that a distraught pregnant woman might consider it and might succeed. The case I referred to earlier is a genuinely possible case in the circumstances in which abortion is discussed in Ireland.

One of our problems is that we discuss the issue in these almost abstract terms in the House but we are dealing with 7,000 women who actually decide that they are going to have this procedure carried out. These women live in the same towns and villages as ourselves and we know them, even if we are not aware they have had an abortion. Their motivation varies but in some cases it has probably to do with the terror of having to tell their nearest and dearest that they are pregnant.

I welcome the fact that we are setting up a pregnancy agency which will address this issue. This is positive and we should discuss how it will work and how it will reach women who do not go to existing bodies such as family planning clinics, CURA, etc. There are concerns about addressing this issue and about getting to the women likely to take such a decision. Many women probably take it because of immaturity. They do not know what to do and have no concept of what it is about. Their immediate reaction is to get rid of the problem. This agency is what we should be providing and is the positive side of what is being proposed but we do not need a constitutional referendum to do this. This could have been done in the last four and a half years during the lifetime of the Government. It should have been done long before now.

We could use legislation to address the threat to the life of the mother but what we have in these proposals is essentially a piece of political expediency. We are trying to address an issue that is not appropriate to the Constitution. We should amend the Constitution but in other ways and in order to make a real difference. Instead of this proposed amendment we should use the time and energy being put into this to address issues that will make a real difference. This will not make any difference for the women who go to England and have abortions.

There are citizens in this country whose constitutional protection is less than that of their fellow citizens. They are people with disabilities, the homeless and people without access to basic social and economic rights. These issues should be addressed by way of constitutional amendment and that would make a real difference to people's lives. As it is, we are again on the once a decade round of trying to include in the Constitution wording that will protect the rights of the unborn and the rights of the woman. One of those lives is dependent on the other before the child is born.

I ask the Government not to proceed with this method of dealing with the issue. Instead we should draft agreed legislation in consultation with those with opinions and expertise in this regard. I would include the psychiatric side of the medical profession in that. We should proceed with the agency; this move is welcome. I welcome also the fact that health boards are finally coming to terms with the fact that they have an obligation to women who have had abortions. In the last couple of weeks the health board in my own area organised an information meeting for GPs on post abortion counselling and treatment. This positive step will help us avoid the situation, as outlined by Deputy McManus, where Irish women are put on antibiotics when they have abortions in England because it is assumed that they will not go back to their GPs. That is also a positive step.

We must deal with reality and we should have dealt with it a long time ago. If we had done so we would not see large numbers of women going to Britain for abortions. If people felt they could talk about this issue, we would not have large numbers of scared women crossing to England for abortion. A certain number of women will continue to take that option. In accepting the right to travel and information the Government and others acknowledge this. In taking a high moral ground approach instead of dealing with the real issue we will keep it underground and will never discuss the real issues which make women take this option.

We are about to put the Irish people into the impossible situation of trying to decide what is appropriate to the Constitution in order to balance these rights. We should move on from 1992 and legislate appropriately for the decision taken by the Irish people at that time. Above all, we should address the real lives of women who take the decision to have an abortion and the very high abortion rate among Irish people.

I hope the Government will reconsider its decision. It may well lose the referendum because the Government proposal is a political compromise. There are more appropriate, more humane and more effective ways of dealing with this issue.

Mr. B. Lenihan

This is a very sensitive question and not an easy one for any Member of this House to address. The question of whether the Government may lose this referendum was raised a moment ago. Of course, it is not a matter of the Government losing the referendum or not. The people will have to make up their own minds on this question.

How do we proceed to make a decision on this question? Many citizens of this country were unhappy about being consulted on this matter in 1983 but they were consulted and they made a decision. As a result of that, any further approach we wish to take on the substantive issue which was discussed in the 1983 referendum campaign and by the Supreme Court in the X case must be submitted to the people for their decision. It is not politically practicable in this State to make any progress in one direction or the other without a referendum.

I appreciate the position the Labour Party canvassed at the hearings conducted by the all-party committee. That party's position has been consistent. It wishes to see legislation to implement the various aspects of the X case and to give concrete shape to it. However, when that option was canvassed at the all-party committee it did not find favour with either of the two major parties. The first approach penned by the Fine Gael Party indicated that that party does not favour such legislation. It took the view that the judgment involved in deciding whether a particular threat of suicide is real is a subjective one, that Irish medical personnel had not acted on the two judgments made by the courts in this area and showed no disposition to do so in the future. When the Labour Party option was canvassed at the all-party committee neither of the major parties supported it. I accept that the Labour Party position on this issue is a valid, political one. It is a compromise position between those who expressed a particular view at the Labour Party conference and those with a different view within the party. This is an issue which divides members of all political parties. Ultimately, the political parties will have to stand back from this debate and let the people decide the question on the basis of information submitted to them.

No one likes being asked the question but I cannot see how we can resolve a difficult philosophical question such as this without submitting it to the will of the people. There are those who have argued that it should be a right of choice for a woman to decide this question and there are those who argue, on the other hand, that unborn life is worthy of legal and constitutional protection and of moral respect. Between those positions it is very difficult to make a judgment and I do not know how parliamentarians can provide for legislation. We can, as the Minister has sought to do, remove the matter from vague constitutional formulae and try to find a workable legal solution in practical statutory terms. That is what this proposal entails. I welcome that aspect of the proposal. It is legislative in form.

I appreciate the understandable reservations that have been expressed about the mode of enactment of this proposal. It is proposed that the people will empower the Oireachtas to enact legislation which has been shown to the people in advance of the referendum. In the light of my conviction that we will not make any progress with this issue unless we are up front with the people, I am happy that the Government is telling the people exactly what is on offer. A clear proposal is being submitted to the people. In 1983 and 1992 vague and general constitutional formulae were submitted to the people and there were endless arguments and public debates about what the formulae meant, might mean or would mean. That approach has not been adopted on this occasion. The Government is giving the people clear sight of what is proposed.

No legal scholar or lawyer of note or repute has suggested any unconstitutionality or constitutional impropriety in the approach the Government has taken. Article 46 of the Constitution permits the people to amend their Constitution. This is a matter for the people. Some Fine Gael speakers have stressed the point that we cannot amend the Constitution in this way. In 1937 when the Constitution was brought in the same party said that Mr. de Valera did not have the right to go back to the people and get their judgment on it. This is what we are doing in this instance in the only practicable way we can do so.

If we were to implement the legislation in the form in which the Labour Party seeks to have it, with the suicide risk fully written into the legislation, I do not believe the Oireachtas would be able to enact such legislation without some reference back to the people. Such legislation would not have the communal sanction that a decision of that type would require.

We must learn from the experience of the United States. Different approaches were taken by different states of the United States on this question. The matter fell to be decided by the Supreme Court in the famous decision of Roe and Wade, when the United States Supreme Court decided, as a matter of constitutional law, that within the United States abortion facilities should be provided on a graded basis with abortion on request in the first trimester of pregnancy and a more restricted regime for the second trimester. That decision has caused immense political controversy in the United States. It has led to the politicisation of appointments to the judiciary and has never commanded the respect of the people of America. At each presidential election the issue comes up again and again. The reason for this is that the decision was not taken by the American people but by judges. People are unhappy with the idea of such a fundamental matter of life and death being decided by the courts without reference to the people.

The Supreme Court in the X case rightly criticised legislators for failing in our obligation to legislate. If we do not legislate it is inevitable that the courts will do so. It is not desirable, either for the courts or for our political system, that the courts are left in the position of having to legislate. Dr. T. K. Whitaker addressed this very issue before the all-party committee. It was put to him very strongly by the Fine Gael members that it should suffice to establish some form of agency and tackle the real problem of the large number of crisis pregnancies. I accept the real problem is the high number of crisis pregnancies, although no woman who had been through that experience appeared before the all-party committee and said she would like abortion facilities to be provided in the State. However, the committee had the benefit of the Trinity College study, referred to in this debate.

T. K. Whitaker was asked if a package to tackle the problem of crisis pregnancy would be adequate but he took the view that it would be an evasion of responsibility in that it would mean leaving to the courts awkward decisions, such as the X case. The public was not happy with that decision. The responsibility of Parliament is to set out the guidelines of laws as clearly as they can and not to leave deliberately to the courts the settlement of obscurities. That is what we will do if we do not legislate in this matter. By adopting the legislative approach I welcome the fact that the Minister has taken the opportunity to remove a number of obscurities.

One matter raised by many speakers is the question of when life begins. The legislation does not address that matter. It addresses the question of when the crime of abortion is committed. The questions raised by some speakers regarding in vitro fertilisation are being looked at by a separate commission dealing with assisted human reproduction. That issue must be looked at. I thank my colleagues from all parties for their magnificent work on the all party committee and I hope this commission will approach its work in a similar way and try to lay the foundation of a balanced debate. No decisions on that issue are being made in this legislation, which deals with another issue.

I have some sympathy with those who ask if it would be possible to repeal the provision inserted in the Constitution in 1983 and start again. That is not possible. We must deal with the current situation and decide on the best practicable solution. If the people decide not to favour this measure it may be because, as in 1992, a combination from both sides find the proposal unacceptable. However, I believe they will look on this proposal with care because it has been drafted with considerable care and is based on an extensive period of consultation conducted by the all-party committee.

I accept that when inferences are drawn from evidence many different conclusion can be reached. However, it is important that the Institute of Obstetricians and Gynaecologists, which was of considerable help to the all-party committee, has written an open letter to the Minister confirming its support for the Bill and wishing the Government every success in the implementation of the measure. The institute did not work with the interdepartmental committee which prepared the Green Paper but in evidence to the all-party committee, a number of witnesses from the institute, representing a spectrum of opinion, established in an authoritative way contemporary practices and perceptions. Medical and clinical practice can be a dynamic, evolving practice and is not necessarily fixed or rigid in its implications. The institute is satisfied the legislation meets its concerns.

Understandable concern has been expressed about the question of the suicide risk. In assessing evidence, different conclusions can be reached but an indisputable fact from the hearings we conducted is that no abortion, termination or procedure on that ground has ever been carried out in this jurisdiction. I do not want to beg the choice of words on this subject because words themselves can be lethal. As chairman of the all-party committee I was struck by the extent to which they can have an ideological rather than a practical significance. In view of this it is necessary to put side by side with the fears expressed, past practice and what doctors want to do in the future. This must be built in to current medical practice and that is the perception of the medical profession. Its endorsement of this proposal means we must consider it with great care.

The one great practical merit in the legislative approach is that it puts the question of the protection of the expectant mother in a maternity hospital beyond any legal doubt whatsoever. When we conducted our hearings there were considerable doubts about the precise legal position. There was a conflict between the guidelines outlined by the Medical Council, the constitutional position outlined in the X case and the Offences against the Person Act, 1861, the basic statutory provision under which we operate. The effect of the Government's proposals is to draw together all these elements.

The great merit of having a statutory position is that the legislation is laid out in black and white in accordance with the well established schemes of statutory construction and interpretation. We are not leaving the matter open, as would a constitutional formula, to vague general interpretation in the courts. A precise guideline is being laid down, which will benefit all concerned.

The point has been made that while we may settle that issue we are far from settling the far wider, deeper, human and emotional tragedy involved. The Government and all of the parties on the all-party committee pressed strongly for the establishment of an agency that would look at this problem in a realistic way, would take the subject of sexuality in Ireland away from the bar counter and the casual joke and consider it in a modern context to see how the issues of education, counselling, including counselling those who have had abortions, prevention, abstention, contraception and care could be drawn together in a compassionate, sympathetic and tolerant approach that would state where we stand today on all these issues. I welcome the fact that the Government has established the Crisis Pregnancy Agency and the impressive membership appointed to it. It is important for the agency to commence work. This Bill contains a precise proposal on which the people will have to decide but it is being submitted to them in the context of the establishment of an agency which looks at documents such as the Trinity College study and surveys, many of which have been haphazard in their approach and not fully thought out in terms of orientation and where they should be going. It will examine the problem as it stands and see what can be done about it. That is a practical way of making some progress on this issue.

On the wider constitutional issue posed by the legislation, there is no constitutional difficulty with the particular mode of enactment. Article 46 of the Constitution provides that a Bill containing a proposal or proposals for the amendment of the Constitution shall not contain any other proposal but I am satisfied this is not another proposal because it is open to the Oireachtas to enact this legislation afterwards. There is ample authority that the courts do not interfere with the sovereign right of the people to decide what should be in the Constitution.

This proposal has been thought through and the Government has carefully examined the report of the all-party committee. Different people have very different perceptions of this issue, but far from this being unique to Ireland, similar debates have taken place in other countries. Likewise, it will be asked why so many people travel to England and whether we are being hypocritical and failing to face up to our responsibilities. However, another feature of the abortion debate around the world is that there are many jurisdictions to and from which people come and go to avail of particular services. The UK has one of the most liberal abortion regimes in the world and we are in close proximity to it. I do not believe any abortion law ideally devised in the House would ever meet the requirement of those who seek to avail of services in England as the services there, as in some other jurisdictions, are available on a very liberal scale. There are many other European jurisdictions where there are regular movements of people and recourse to facilities available in other countries. Equally, it is clear that those countries which have introduced liberal, widely available abortion have had huge controversies within their medical profession and among the public regarding the morality of what they are doing.

This is a very difficult question and parties will have to draw back a bit from the debate. I welcome the fact this has, by and large, been the tone of the debate in the House and in the all-party committee. In terms of legislation on sexuality we have made fools of ourselves many times through the years, including on censorship, contraception and abortion, and I hope on this occasion we can conduct the debate in a civilised way, look at ourselves as a people and see if we can make a decision which addresses at least some of the problems we face on this issue. It is never possible to find an ideal solution to this problem. This can be one of the difficulties with the motivation of many who argue the points, but the Government has arrived at a conclusion on the matter and has submitted proposals to the people which are worthy of very serious consideration and give the people a real chance to find a workable solution to this problem for this generation at least.

Mr. Gormley

The most common reaction of many people to this issue is "Not again". It seems we have debated this issue ad nauseam for the past two decades or longer. It has scarred the national consciousness and left a legacy of bitterness and a gulf of misunderstanding. This legislation tries to bring together the divergent views, but in its attempt to be all things to all people, it ends up being nothing to anyone. For that reason the consensus so sought after by the Government will not occur and the referendum will most likely fail.

My party allows each individual make up his or her mind on matters of conscience, as this matter clearly is. As it happens, both Green Party Deputies will be opposing the legislation on a number of grounds which I will outline.

Last week I heard some speakers refer to this as a pro-life amendment or pro-life legislation. However, it is not. Many pro-life individuals have written to Members of the House expressing their sincere reservations about the legislation. They are correct as the legislation enshrines in law the notion that life begins at implantation and not at conception. Therefore, it clearly legalises the taking of unborn life in its very early stages. I am not a theological expert, but I believe this contravenes Catholic teaching and it is anathema to many in the pro-life movement who believe the morning after pill is morally wrong. The Government knows the morning after pill is widely and increasingly used in this country. It knows that if it was not used the number of abortions by Irish women in Britain would be far higher, and the Government has been forced to recognise this reality. It has been forced to recognise the reality that women require information and the right to travel and it has abandoned the core principle of the pro-life movement that life begins at conception.

The most pertinent legal and moral question which arises is that if it is acceptable to take unborn life by way of the morning after pill, why it is not acceptable to take unborn life by way of direct abortion. Surely this glaring inconsistency has not escaped the minds of those who worked on these proposals. The legislation is a political and moral fig leaf. It hopes to preserve our purity by bending morality. We can still technically say there is no abortion in Ireland, but that hides the sad reality.

We are of the view that this proposed amendment to the Constitution will not address a number of fundamental questions. Will the referendum make the situation regarding abortion any clearer legally? After reviewing the proposals I must answer "No". If anything, it will make the legal situation worse. Will it help women who are suicidal, women who have been raped, or women who are victims of incest? Again, I do not believe it will.

The Taoiseach has admitted that the referendum route we are being presented with is only constitutionally necessary to overthrow the Supreme Court decision in the X case and that it is not necessary for implementing any of the other aspects, which can be implemented through legislation. Therefore, we continue to legalise the abortion trail to Britain so we can feel good about ourselves. We are now being subjected to what in all probability will be a divisive and painful abortion referendum, necessitated solely by the Government's insistence on reversing the Supreme Court's ruling on suicide and abortion. If this referendum is passed a suicidal woman who chooses abortion will be criminalised, and we find this totally inhumane and unacceptable.

The referendum will create a great deal of wealth for lawyers, but many headaches for the rest of us. It is a legal mess. Before it was out of the stalls, reports of the legal time bombs being lobbed at voters were surfacing in the media, with quotes from constitutional and legal experts. The very process of introducing such a Bill, amending the Constitution in such a manner, and appending an Act to the Constitution as a Schedule, is quite extraordinary. It will mean it will not be possible to amend the legislation at a later stage in the Dáil, even though the courts could technically interpret the legislation in a manner which was not intended by ourselves or those who vote in the referendum. We would have to return to the people with yet another abortion referendum to untie any complications which might arise from the bad drafting of the current proposal.

Powers are given to the Minister to determine what evidence will be necessary to ascertain whether a medical procedure or an abortion has been carried out, and he or she will have similar powers when it comes to determining the approved places where such medical procedures may be carried out. This will be done by ministerial order, and we know how little scrutiny such orders receive in the House. Nobody knows whether one hospital will be designated an approved place or whether it will extend to every doctor's surgery. The definitions are either non-existent or so broad as to invite multiple interpretations. I have already referred to the problems concerning an approved place. "Medical procedure", although it is cited as being different from abortion, which is illegal, is never defined. "Woman", we are helpfully told, means a female person. The definition of medical practitioner is so broad that it would allow any of us, God forbid, to set up a practice and perform medical procedures under the guidelines in the legislation. Who knows, the responsible Minister might deem Dáil Éireann an approved place.

The legislation does not state that a medical practitioner must be registered with the general registrar of medical practitioners or anyone else. Irish law does not properly prohibit unregistered people from practising medicine. The Taoiseach has already admitted in his responses to Deputy Noonan that a legal challenge is also possible under Article 40.3.3 to prevent suspected abortifacients and that the society for the Protection of the Unborn Child is now pursuing a legal case in the United Kingdom to have the morning after pill banned.

There are a number of other instances of lack of clarity in this proposed referendum. The last one I wish to highlight at this stage is the 17th protocol to the Maastricht Treaty and how it will sit if this referendum is approved. The 17th protocol inserted by the Fianna Fáil-PD Government stated that nothing in the treaty of the European Union shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland. Article 40.3.3 states:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.

With this referendum we are inserting Article 40.3.4 and Article 40.3.5. I know the Taoiseach has stated that this envisaged legislation will have no EU law implications. I also know the Government has changed its version on this issue at least three times in the Dáil. On 9 October, for instance, the Taoiseach stated that to change the Maastricht Protocol was probably not necessary. What then is the situation?

There are questions hanging over this issue in regard to the EU. There is the issue of a fundamental charter or constitution being drawn up by the European Union; there is also the issue of the EU incorporating the EU convention on human rights. I understand some of the case law built around the convention stresses the right to life of the mother as against the foetus. It stands to reason that a protocol that cites a particular Article of the Constitution only applies to that particular section. What will the Government do about this? If we are to believe the Government in regard to the changing of the Nice Treaty, it appears that it is impossible for any protocols to be added to that treaty. We are told that it is impossible for the Nice Treaty to be changed one iota. Many of the groups who campaigned against the Nice Treaty have been seeking to have a protocol attached exempting Ireland from any involvement in European Union militarisation and in the EU Rapid Reaction Force.

If it is confirmed that the Maastricht Protocol will not extend to these issues addressed in the forthcoming abortion referendum, what will the Government do? I am intrigued by one of the Taoiseach's suggestions. On 9 October in the Dáil the Taoiseach stated that if a change was necessary this would not create a difficulty with member states because on a whole range of issues protocols are regularly nodded through at European Council level. I found this to be an extraordinary statement. If an abortion change can be nodded through, why can a change in Ireland's involvement in EU defence not be nodded through, as the Taoiseach puts it? Perhaps we could nod through both of them at the same time.

The Taoiseach's analysis of this issue is totally woolly. It seems that the Government will have to wait for the next EU treaty to be drafted before any new protocols can be inserted. This will leave the legal status of the Maastrich Protocol in limbo until the next EU treaty is negotiated, in other words, for several years. This is quite a mess.

The removal of the suicide clause is the only reason for the Government calling a referendum on this issue. The people already decided by way of referendum in 1992 to retain this protection but now the Government is asking them to look at it again. The Taoiseach's response to the issue of what to do when a pregnant woman is suicidal is to export that woman and her problem to another jurisdiction. What that means is that appropriate medical treatment as determined by medical doctors is not being given in this country to our citizens. It means that psychiatrists' opinions are not seen as valid. It implies that mental illness is not a real illness and that it cannot be life threatening. I understand the incidence of suicide in pregnancy is rare, as Deputy Lenihan said. However, the Supreme Court X case decision has been with us for a decade and there has been no upsurge of abortion cases citing suicide. All the more reason to wonder why are we having a referendum to deal with these rare instances. Why are we removing this small but important protection for women's lives?

Like many people, I feel distinctly uncomfortable with the idea of abortion. Anyone who has attended a maternity hospital, witnessed an ultra sound scan and seen the womb will find the idea of abortion quite distasteful. We have a duty as legislators to face up to the reality. It is a terrible and sad reality but face it we must. I do not believe this legislation is doing so, therefore, we will be supporting the Fine Gael amendment and opposing the legislation.

Mr. Collins

Abortion by its nature is a highly emotive issue. I believe the Government is taking full cognisance of this fact with regard to the policy it is pursuing on abortion. Before speaking in detail about the provisions of the Bill, I would like to make a few brief comments concerning the background to the legislation.

In 1983, a pro life amendment to the Constitution was enacted by a decision of the people. However, as a result of that decision, no laws were put in place to deal with the issue of abortion. That means, in effect, that the Offences Against the Persons Act which dates back to 1861 remains the basic law on abortion. Almost ten years later in 1992 the Supreme Court gave the decision in the X case. As we all recall that judgment gave rise to much emotion. Consequently, in November of that year another referendum, which incorporated three new proposals, was put to the people. One issue on the right to travel was approved by the people. Two other issues which sought to reconcile the rights of the mother and the unborn were rejected by the decision of the voters. In effect, no matter which way one looks at the issue of abortion, there is certainly a legislative vacuum.

The Fianna Fáil Party, by way of its general election manifesto in 1997, gave a commitment to the Irish people that a pro life referendum would be held. The Government has approached this issue in a very careful and measured manner. In September 1999, a Green Paper on abortion was published by the Government. This Green Paper in turn was referred to the All-Party Committee on the Constitution which reported in November 2000. It was at this stage that the Government established a Cabinet sub-committee to consider its options and to prepare new proposals. In effect, the Government is now seeking to add two new subsections to Article 40.3 of the Constitution. The first gives constitutional protection for the adoption by the Oireachtas of a legislative approach. This guarantees the terms of the legislation which will be seen and approved by the people in advance. The second option provides that any future legislative amendment must be approved by the people before it is signed into law by the President. Put in its simplest terms, the Government is seeking to put this issue where it belongs, which is on a legislative basis. Hence the publication of the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, which is now before the House for consideration.

At this point I would like to say that the electorate is being asked to approve a conditional amendment to the Constitution. This means, in effect, that the terms of the Protection of Human Life in Pregnancy Act will be enacted. The provisions of the Protection of Human Life in Pregnancy Bill protects the life of the unborn child. As a politician, I fully support the need to protect the life of the unborn and that is why I very much welcome the measured approach by which the Government is addressing what is clearly a complex and emotive subject.

This new law will protect both women and the unborn child and will accommodate existing medical practice which safeguards the life of the woman from exposure to real and substantial risks. The Taoiseach stated, when he launched the Government's proposals for constitutional and legislative reform on abortion, that doing nothing is not an option. He is totally correct in his approach. Doing nothing just simply means that the legal vacuum, which arguably has been in place since 1983, would remain the order of the day. This would be an unacceptable situation. The Taoiseach also stated that the legalisation of abortion is rightly not an option because the Irish people are simply against this. The Irish people have a right to be consulted on this very important issue and I hope, when an abortion referendum is held, the debate which will take place will acknowledge that the Government has carefully weighed up its options and is presenting a very balanced set of proposals to the people. The proposed amendment to the Constitution is designed to acknowledge that the abortion issue is one on which the people want to have the final decision, while, at the same time, leaving the matter primarily within the legislative arena.

I agree with the Taoiseach's statement that the inevitable far reaching public debate on these proposals must take place in a spirit of reason, tolerance and open-mindedness. We need a debate to take place in a calm and mature way. One of the proposals which I strongly support in this Bill is the provision to set up a new statutory agency which will be called the crisis pregnancy agency. This is a recommendation which was included in the proposals brought forward by the All Party Committee on the Constitution. I congratulate Deputy Lenihan, as chairman, and all members of that committee for the time and effort which they contributed to their work. The committee proposed the establishment of such an agency to draw up a strategy to combat crisis pregnancies, promote options other than abortion where a crisis pregnancy occurs and to provide for post abortion services. This agency will, in effect, draw up a national strategy to address crisis pregnancies. It will work with a wide range of organisations, not just in the health sector but in the employment, educational and housing sectors.

The Government is allocating €6.5 million for the running of this agency in the year 2002. It will be established for a period of ten years, as recommended by the All-Party Committee on the Constitution. Too many Departments, State bodies and voluntary organisations have responsibilities for many aspects relating to crisis pregnancies. It is clear that better co-ordination is needed with regard to the issue of crisis pregnancy and the setting up of such a new agency would serve a very positive function. This crisis pregnancy agency will play a major role in the development of co-ordinated and appropriate services which will reduce the incidence of unwanted pregnancies among Irish women and give women in a very difficult situation the widest possible range of assistance to help them cope.

The Government is also anxious that the law should protect best medical practice and remove any doubt about the legality of treatment which doctors may consider necessary. Section 2 states that no persons shall carry out or effect an abortion in this State. A person who contravenes this section or attempts to do so or aids or procures any other person to do so shall be guilty of an offence. Such a person may be liable, on conviction on indictment, to imprisonment for a term not exceeding 12 years or to a fine.

This constitutional amendment and proposed legislation do not have any implications in terms of legal directives and regulations at European level. There is no aspect of European law, and no jurisdiction on the part of any of the European institutions or of the European Court of Justice, which could challenge or prevent the operation of the law envisaged by these proposals. The Government is not running away from addressing the issues connected with the need to protect the life of the unborn child. In fact, the opposite is the case. The Government has carefully measured all its options and has produced a very sensible and balanced set of proposals which will protect the life of the unborn child. The vast majority of the members of this House should support the proposals in this Bill.

As the Taoiseach said recently, our basic choice is either to have a constructive debate which achieves as much agreement as possible or to allow matters to drift until the next court case forces us to confront this issue again. The Government is launching the first comprehensive national initiative to help prevent unwanted pregnancies and to support women who find themselves in a crisis pregnancy. I fully support the provisions included in this Bill.

Mr. Boylan

I welcome the opportunity to contribute to this debate. I support the proposed wording of the twenty-fifth amendment to the Constitution. If the wording was factual, I would have absolutely no difficulty with the Protection of Human Life in Pregnancy Bill. Life is sacred and the voice for the unborn must be heard. I welcome the debate in so far as it is level and very well balanced and the heat and bitterness generated in previous debates has not surfaced.

The contributions to the debate this morning were excellent. I welcome the definite statement by the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, that abortion on demand will not be introduced into this country. That is a commendable and noteworthy statement. I listened with interest to Deputy Jan O'Sullivan's comment that we should hasten slowly, with which I agree. I was amazed and appalled by the information given by Deputy O'Sullivan that 7,000 women sought abortion outside this country last year. That is sad and frightening. Such events are described as crisis or unplanned pregnancies, which terminology I do not understand.

In querying the wording of the amendment, I pose the question: When does life begin? We are told it is at implantation – I do not understand that. It is my understanding that life begins at conception. If life does not begin at conception, what actually happens at conception? Those issues have to be addressed. It is a sad reflection on our society that so many women consider it necessary to terminate a pregnancy. I can only speak as a lay person. I have no medical or scientific qualification. I can speak as a parent and as a public representative who has dealt with people's social and personal problems for 25 years both at local authority level and at national level since I became a Deputy in 1987. There are tremendously difficult social problems and these have not improved despite the fact that the country has progressed. We have become more affluent and young people have more disposable income. However, there is a tremendous abuse of this affluence.

There is a major problem of drink and drugs. Is it as a result of the abuse of drink and drugs that what are called crisis or unplanned pregnancies come about? I believe it is related and therefore we must address that issue. We must help young people to understand. The facts of life are well known now, certainly much more than was the case decades ago. Young people clearly understand the activity in which they are getting involved. However, much of this comes about because of an abuse of their social lives, which is sad. I am aware that 80% to 90% of our young people are marvellous, well-mannered and good living people. However, there are others that do not appear capable of behaving in a proper manner that would give them a better life without any of these problems.

At my clinic and my home, young pregnant girls of 15, 16 or 17 have come to me. They are afraid to tell their parents or seek help. On one occasion a teacher came to me asking how she should address the problem relating to a pupil in her leaving certificate class. Such a problem causes turmoil in that young person's mind and creates a huge upheaval in her life. The first requirement is to have support services and somebody to whom that person can turn. She needs help through the health boards, local health authorities and local community workers. There are many people willing to help but certainly abortion is not the answer for that girl's problem.

Abortion is wrong, full stop. It is wrong here and it is not acceptable for women to go abroad for abortions. It is wrong here; it is wrong in Britain, where apparently it is freely available and it is wrong in any European country. We cannot export our problems. People talk about an Irish solution to an Irish problem. Well, we have an Irish problem.

On Monday night, I attended the launch of a card to verify the age of young people to help prevent people selling alcohol to under age drinkers. This is being promoted by the Garda Síochána and the liaison officers. That is a marvellous development. It is an indication of the concern people have about what is happening in society that we had over 150 people from different public bodies, health bodies, community councils and community workers attending that meeting to see how they could help. They also recognise there is a problem in our society. If we approach it from that angle, the number of young girls becoming pregnant could be substantially reduced.

There are cases of older women who want to terminate pregnancies claiming they will commit suicide otherwise. I am aware of families where suicide has occurred. They are often traumatised and particularly bewildered that the victim gave no indication of being ill. People do not go around saying they are going to commit suicide and then carry it out. However, a person threatening suicide if she does not get an abortion or if something does not happen for her is crying for help. That help and support must be available.

There are many couples that have no family and are only too willing to adopt a baby. There are other people who may have raised a family already and are willing to foster a baby. Help is available but obviously these people are not aware of it. They must be made aware of it. Contact numbers for crisis pregnancy agencies are available at public clinics and other centres, but obviously that is not sufficient and they are not getting to the people with the problem. I do not accept the threat of suicide as a reason for allowing a woman to have an abortion.

I can cite the case of a boy of 18 who took his father's car without permission and went to see his girl friend. They went for a drive, had a crash and the wee girl was killed. That young boy was convicted of dangerous driving causing death and was sentenced to seven years imprisonment, which he is now serving. He is anxious to do so in order to try to repay his debt to the family of the girl and to society. What is the difference between the death in that case and an abortion?

We must be prepared to help these people. We are wrong to think we will solve the problem by stating that life does not begin until some date after implantation and conception. Cases of rape occur and it is a terrible indictment on our society that there are brutes that are prepared to abuse a young girl or woman in this manner, either individually or in gangs. Where that happens, the victim should immediately seek help from the authorities as well as medical help. I mean that she should get to her doctor or to a hospital immediately. I cannot accept the argument that a woman can claim two months later that she was raped. This does happen and although thankfully it is not widespread, there have been horrific incidents.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.

Dáil Éireann díospóireacht - Wednesday, 14 Nov 2001

An Bille um an gCúigiú Leasú is Fiche ar an mBunreacht (Beatha Dhaonna le linn Toirchis a Chosaint), 2001: An Dara Céim (Atógáil). Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Second Stage (Resumed).

Dáil Éireann díospóireacht -
Wednesday, 14 Nov 2001