Vol. 870 No. 3
I move:
That leave be granted to introduce a Bill entitled an Act to define human life protected during pregnancy and to permit termination of pregnancy in situations where a foetus has a fatal abnormality such that it has no prospect of life after birth.
I ask Members to step outside the Chamber if they wish to have conversations. Could we have order, please, for Deputy McNamara?
I thank the Leas-Cheann Comhairle for the opportunity to seek leave to introduce this Bill. It is important to point out that it is difficult, if not impossible, to reconcile the views expressed by members of the Government on Second Stage of the Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013, which was introduced by Deputy Clare Daly, with the arguments that were made on behalf of the Government to the European Court of Human Rights in D. v. Ireland. Not only did the Government argue in that case that it might be possible to terminate a pregnancy where there was no realistic prospect of the foetus being born alive, but it went further and argued that it might even have been possible under the Constitution to terminate pregnancies in cases of diagnoses of Trisomy 18, where the medical evidence is that the median survival age is approximately six days. I should point out that this Bill is more restrictive than Deputy Clare Daly's Bill and than what the Government argued in Strasbourg might be constitutional.
When responding to Deputy Clare Daly's Bill a month ago, the Minister for Health stated:
I cannot support this legislative proposal because the Bill is unconstitutional. A referendum would be required to amend the Constitution to ensure legislation, such as outlined by Deputy Daly, could be introduced. The Dáil cannot pass legislation it knows to be unconstitutional. The view of the Attorney General is that this legislation is unconstitutional.
I would not introduce this Bill if I did not believe it to be constitutional. I have set out my reasoning for this in the explanatory memorandum accompanying the Bill. The Bill is more restrictive in its definitions than Deputy Clare Daly's one and allows for the termination of a pregnancy where there is a diagnosis by two obstetricians of a fatal foetal abnormality, which is defined as a medical condition or medical conditions suffered by a foetus resulting in that foetus having no prospect of being born alive or a medical condition listed in Schedule A, which is a schedule of medical conditions that result in a foetus not having the capacity for life as a human person after birth. Anencephaly is listed.
Two other important issues that arose during the previous debate need to be addressed, including the use of Article 15.4 to gag debate in the House. That article reads: "The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof." The discussion of a Bill on Second Stage is not the enactment of legislation. We are all clear on this point. Many a Bill has been initiated in the House over which there have been constitutional discussions that resulted in amendments during the course of Committee Stage. It is important to bear this point in mind, as the claim that there might be constitutional issues surrounding Bills is an increasing phenomenon in the lifetime of this Government.
Hear, hear.
These claims grow legs, the Bills become unconstitutional and suddenly they are killed off for reasons of political expediency in the name of unconstitutionality. That is a danger that we need-----
They are gagging Parliament over there.
Deputy McNamara has the floor.
I am concerned about this matter.
The second issue is the failure to publish the Attorney General's advice upon which members of the Government relied to buttress their views. This was done because of Article 28.4.3o, an amendment that was introduced by the people at the behest of a Fianna Fáil Government to ensure that discussions at Cabinet were confidential. There is a difference between discussions at Cabinet and memoranda prepared in advance of those. If the Government is going to rely on the advice of the Attorney General to kill off a Bill, the very least that should be done is to publish that advice to enable people to introduce legislation in future. It is particularly ironic that the advice, which could not be shown to backbenchers, subsequently appeared in Sunday newspapers in extracts. As a backbencher who supports this Government, which is sometimes confused with being in government, it is interesting to learn of deals after the event. I accept that a political deal was done in this regard, but I was not aware of it at the time. If it was done in my name, it was not done with my knowledge.
The price of this decision will be paid by couples and pregnant women in Ireland who receive diagnoses of fatal foetal abnormalities. What are they expected to do if we do not legislate? As argued in Strasbourg, they are expected to initiate an action in the High Court as soon as a diagnosis is confirmed and, if unsuccessful, pursue it to the Supreme Court to obtain a declaration that Article 40.3.3o of the Constitution allows a termination in their cases. Yet again, we will see a pregnant woman in distress surrounded by lawyers in courts rather than medics in an environment of medical care. There is an onus on this House to legislate where possible. As the Tánaiste outlined, legislating on a broader range of issues than fatal foetal abnormality, for example, rape, incest and the health as opposed to the life of a pregnant mother, as a basis for termination would require a referendum. However, it is conceivable, particularly given the Government's argument in Strasbourg, that it would be constitutional to legislate for fatal foetal abnormalities. There is an onus on the House to do exactly that.
Is the Bill opposed?
No.
The Government opposed a Bill three weeks ago.
What is wrong with the Government?
It takes-----
The Government does not know what it is doing. It is all over the place. It is unbelievable.
Since this is a Private Members' Bill, Second Stage must, under Standing Orders, be taken in Private Members' time.
I move: "That the Bill be taken in Private Members' time."
In deference to the work of the health committee, which will consider the issue of fatal foetal abnormalities in the near future, the Bill should only be taken after it has carried out its hearings, which I am assured will be done in advance of this summer.
The Deputy is not even trying.
