I understand I have only 15 minutes to speak. I will not have the opportunity in 15 minutes to reply to all the points made but no doubt I will have the time and opportunity to deal with them tomorrow.
I would like to thank all the Members of the House who have contributed to the very detailed and wide-ranging debate on the Second Stage of these three Bills over the past couple of days.
I want now to respond partly in the time available to me to the points which have been made. In a debate as comprehensive as this has been on such complex topics the House will appreciate that it is just not possible at this stage to cover every single point which individual Members of the House made.
Two basic and central themes have run through the whole debate — concern to protect the lives and health of pregnant women and concern to protect the right to life of the unborn child. Widely divergent views have been expressed on the issues raised by the Bills, ranging from those who regard the Government's proposals on the substantive issue as not being restrictive enough and those who regard the proposals as being too restrictive.
Taking that wide diversity of views into account, I am convinced the approach taken by the Government in this matter is the correct one and strikes the proper balance between the need to protect the lives and health of pregnant women and the need to protect the life of the unborn child. Widely divergent views have been expressed on the issues raised by the Bills, ranging from those who regard the Government's proposals on the substantive issue as not being restrictive enough to those who regard the proposals as being too restrictive. Taking that wide diversity of views into account I am convinced that the approach taken by the Government on this whole matter is the correct one and strikes the proper balance between the need to protect the lives and health of pregnant women and the need to protect the lives of the unborn.
I will now deal with the more important points that have been raised in relation to each of the Bills individually, beginning with the Twelfth Amendment Bill dealing with the substantive right to life issue. The proposal by Senator Manning to the effect that the Second Reading of the Twelfth Amendment Bill should follow the publication and debate of legislation to supplement the proposed amendment is not acceptable to the Government. Since the amendment would in effect negative the suicide aspect of the Supreme Court's test for termination of pregnancy, any legislation to supplement the amendment will have to take that change in the law into account. It would be objectionable from a legal and a more general viewpoint to put legislation through the House, albeit short of completion of Final Stage, which sought to anticipate the outcome of a decision by the people in a referendum on the subject matter of that legislation.
In his opening contribution on this debate, the Minister for Justice made clear the Government's position on legislation to supplement the amendment. If the Government are persuaded of the need for that legislation they will consider the matter further. They are not, however, at present convinced of the need for such legislation. I will deal tomorrow in more detail, when I get the opportunity, with the case against legislating in this area.
In his contribution Senator Manning said he found a contradiction in the Minister's speech to the effect that the Minister said on the one hand that it is not possible to have legislation because of the X case and yet later he said that if the people rejected the Government's proposals there would be legislation. If the Senator were to look again at what the Minister had to say he will see there was absolutely no contradiction in this regard. Indeed, the Senator appears to be under an entirely wrong impression on an issue that is fundamental to this whole debate.
What the Minister said was that to proceed to legislation rather than an amendment to the Constitution would mean accepting in full in that legislation the findings of the Supreme Court in the X case, including the finding that a risk of suicide is a ground for abortion. I have to emphasise, because I think there has been confusion on this issue during the course of the debate, that suicide as a ground could not be removed by legislation alone. There is no point in people pretending that the choice between an amendment or legislation is equal in terms of what can be achieved by either. That is simply not the case. The Government have made their position clear. They do not believe they should legislate on the basis of a risk of self-destruction without first giving the people a chance to decide on that issue.
I find it strange that people have accused us of making some sort of threat to the people by informing them that we would bring forward legislation to deal with the Supreme Court issue if the amendment is defeated. Those very same people, in this House and in the lower House, are the people who have quoted, with approval, Mr. Justice McCarthy's judgment in the Supreme Court castigating us for not having legislated on the original Article 40.3.3º.
The substance of what Senator Manning had to say, and the effect of the amendment he proposes, seem to amount to little more than a plea for more time to consider the issues involved. I appreciate that there are genuinely held different views of whether a risk of suicide should or should not be included as a ground for terminaton of pregnancy. But it is an issue which the Government have faced up to and it is hard to avoid concluding that the Fine Gael amendment is designed solely to deal with a situation where that party has failed, and appears to be unwilling, to take a coherent and definitive view on this central question.
Senator Manning claims that there is unanimity in his party on their approach to the issues raised by the Bills before the House. But having listened to the debate in both Houses I have no idea where the Fine Gael Party stand on the central issues. Do they believe that a risk of suicide or general health grounds should constitute grounds for termination of pregnancy? Instead of enunciating their policy on these matters, the only unanimous view seems to be that they should not deal with those matters yet.
I am reinforced in the view that there is a reluctance on their part to deal with and take a position on the central issues by the fact that Senator Manning, Senator Doyle and, indeed, other Senators call for more time while at the same time using much of the time available to them in this debate as a vehicle to score points on a cheap party political basis. I do not believe that it would be helpful for me to dwell on this at any great length. But just as one example: Senator Manning in the course of his contribution referred to the Government's genuine attempts to achieve consensus as being a fraud and a charade. Leaving aside the difficulty of achieving consensus where parties are reluctant to face up to the issues involved, it is hard to reconcile the use of these type of words by Senator Manning with his call later in his contribution for the debate to be deferred until there are cooler heads and cooler words can be spoken.
Before leaving this issue there is a specific point which Senator Manning made in his contribution which should not go uncorrected in the record of this House. He said that the Minister had been more than disingenuous in quoting from a letter written to newspapers last Saturday by 13 eminent gynaecologists. Senator Manning said that the letter was a direct attack on the Minister's case and that the Minister had twisted its meaning to support this case. I would like to quote directly from the letter to which the Senator was referring. The letter said:
As practising Irish obstetricians we are gravely concerned about some aspects of the current referendum debate. Although the situation seldom arises, we believe that sometimes the continuation of pregnancy poses a real and substantial threat to the life of the mother.
The letter went on to refer to an English report, and concluded:
From the above it is clear that continuation of pregnancy can pose a real danger to a small number of women. Whatever else results from the current controversy. Irish women must be protected from such dangers.
Nowhere does the letter criticise the wording proposed by the Government and, indeed, the very reason the Government differ from the pro-life groups is that the Government have recognised from the start the possibility that termination of pregnancy may be necessary to save life in the case of life-threatening conditions.
I think it will be clear that import of the letter from the obstetricians would provide support for the approach which the Government are taking. I hope in the circumstances that Senator Manning might take the opportunity on the Committee Stage to withdraw the suggestion that it was the Minister who twisted the words of the letter.
Many Senators, including Senators Doyle and Upton, are concerned about the inclusion of the phrase "life as distinct from health". Let me repeat that if the Government saw any way that those words could be omitted without giving rise to a real danger that this might eventually lead to abortion on demand, they would be only too happy to leave them out. But there is a real danger that, without the inclusion of those words, in a future "hard" case unrelated to a life-threatening condition it might be found that health would be a ground for abortion, as happened in Britain in the Bourne case with the results we are all familiar with.
Senator Doyle made the point, in relation to the inclusion of this phrase, that she represented the view of women between the ages of 14 and 50 and that the Government decided not to listen to women's views and proceeded, so that women felt abused by the amendment. I regret that the Senator spoke in those terms. I, of course, recognise the particular and special experience which women can bring to this debate. But I believe it to be deeply offensive to women to suggest, as Senator Doyle seemed to, that women are of one view in relation to the wording of the amendment. That would clearly be an absurdity as would any suggestion that any one person could take it upon his or herself to speak for them. I have no doubt that many women will take the view that what is contained in the amendment, far from being offensive, is necessary to avoid a situation where there is widescale abortion in this country while at the same time containing a full commitment to the right to life of women.
A number of Senators made the point that a line cannot be unambiguously drawn between life and health and that this will give rise to difficulties. But the Supreme Court has already drawn that line and had no difficulty in doing so. The essence of the Supreme Court judgment is that such a line must be drawn on the proper interpretation of Article 40.3.3º because that Article on its true interpretation will allow the right to life of the unborn to be superseded only where that is necessary to save the life of the mother in the sense that otherwise she will die. That is clear from all the judgments. The Twelfth Amendment would not make any change in the Supreme Court's test on this point except to establish that test as something which could not be changed at any time in the future without the consent of the people.
The Minister for Justice dealt in his opening remarks with suggestions that doctors may feel that in some way the inclusion of the phrase in the amendment will inhibit them from acting until there is a degree of certainty in relation to the existence of a risk to life which would be wholly impracticable in medical practice which can only proceed on the basis of probability. The Minister explained in opening this debate that the Supreme Court decision requires only that the existence of a real and substantial risk to life be established on the balance of probabilities and that there is nothing in the amendment which would change that.
There have been suggestions that the amendment will render unlawful medical treatment for mothers where that treatment is for the benefit of their health as opposed to saving their lives. Could I make the point here again that the amendment is not changing the law in this respect — it adopts the existing law as set out by the Supreme Court. Nobody has ever suggested or attempted to suggest, as far as I know, that the Supreme Court decision has given rise to the consequences that it is now claimed would flow from the amendments.
Some Senators have expressed concerns that the phrase "necessary to save the life" means that the risk to life must be imminent before action to terminate the pregnancy would be permitted. The test enunciated by the Supreme Court does not require that the risk to life must be immediate — the court specifically rejected that proposition — and neither does the wording of the proposed amendment require that the risk to life should be immediate. The advice available to the Government is that the phrase "necessary to save the life" means that a pregnancy could be terminated if the doctors were able to form the view that even after childbirth and recovery of the mother therefrom, other treatments for whatever condition she was suffering from would be ineffective to protect her life.
The suggestion has been made that the proper way to approach the problems we are dealing with is simply to repeal Article 40.3.3º. Some people who advocate that course see Article 40.3.3º as the factor that has given rise to the controversial and troubling questions that now concern us. I do not think we need spend much time on that particular suggestion. Is it being seriously suggested that the people of this country who voted by a large majority to include Article 40.3.3º in the Constitution would be likely now, nine years later, to reverse their view and vote to remove Article 40.3.3º from the Constitution? I do not think such a prospect at all likely, and because of that I regard that suggestion as academic.
In response to the point made by a number of Senators opposed to excluding suicide as a ground for termination of pregnancy, I would just like to reiterate one point which the Minister for Justice made at the outset of this debate: if it is the case that suicide in pregnancy is extremely rare but if it is very difficult to predict accurately in an individual case, accepting suicidal tendencies as a ground for termination would be likely to lead to the certain loss of many unborn children without any certainty that even one suicide had been averted.
Senator Hanafin said in his contribution that "none of the Government's euphemisms can disguise the basic fact that the purpose is to seek the formal sanction for a constitutional right to deliberately take the lives of unborn children". I think that the accusation that it is the Government which are using euphemisms should be seen against the background of the use by the pro-life campaign at various stages in recent weeks of the words "indirect", "unintended", "unsought" and "inadvertent" to describe terminations of pregnancies in circumstances which they apparently regard as acceptable.
As the Minister for Justice indicated earlier in the debate, the use of this type of distinction could not serve as a basis for a constitutional provision on this subject. How can it be maintained, for example, in removing a cancerous womb, where termination of the life of the foetus is clearly foreseen from the very outset and is inevitable, that such termination is unintended, unsought, inadvertent or not deliberate, however undesired such a termination may be?
Senator Hanafin spoke of the Twelfth Amendment Bill as being a proposal to provide for abortion in Irish hospitals. He appears to speak as if the recognition that there are circumstances where it is, regrettably, necessary to terminate the life of the foetus is something new. This is clearly not the case.
The Minister for Justice has already explained that, leaving aside the suicide aspect, the substance of the Supreme Court decision is, in my view, fully in line with pre-existing law and I imagine is widely acceptable. That is why the proposed amendment reproduces the substance of that decision.
There is no warrant whatsoever for any suggestion that the amendment will open the door to abortion. It is most emphatically not an abortion amendment. Far from making the law concerning abortion more permissive, as some people are wrongly suggesting, the amendment will have exactly and precisely the opposite effect: it will prohibit abortion in circumstances where it is now permitted without disturbing existing medical practice and without putting mothers' lives at risk. It is a provision that arises from a woman's entitlement to protection where there is a risk to her life and it enshrines that protection. I would submit that in all conscience we could do no less than we are doing.
Senator Hanafin spoke about the effect of the Twelfth Amendment. I would like to say this to the Senator. The basic premise which underlies the argument that he and the group with which he is associated have put forward is that there are no medical conditions whatsoever in which what they call a "direct" termination of pregnancy is necessary to save the life of the mother. I think I can claim that the Minister for Justice has convincingly shown in his opening remarks that that premise cannot be accepted or sustained. That being the case a question arises that cannot be ignored. What is a doctor to do when he is faced with the choice of saving the life of the mother or saving the life of the foetus? Is the Senator saying that in these tragic cases the mother must die so that the foetus may survive? If that is what he means, he should say so clearly and distinctly so that the people he seeks to enlist in his support will know precisely what they are being asked to support.
I, of course, recognise the genuineness of Senator Hanafin's concern, and that of other Members of this House, for the protection of the unborn and I share it. But I would ask Senator Hanafin to use the influence which he has with pro-life groups to ask them to reflect again on the position they are adopting in relation to the passage of this amendment. The reality is that once the Seanad passes the Twelfth Amendment Bill the people will be asked, in effect, to decide whether to accept the amendment or accept the text laid down by the Supreme Court including a test of self-destruction. If the amendment fails, that Supreme Court test will remain a fundamental part of our law. In the Government's view the inclusion of self-destruction as a ground for termination of pregnancy could lead to the widescale availability of abortion in this country. I fail to see how voting against the amendment could do anything to protect the lives of the unborn. It would, in fact, be likely to mean that unborn lives would be lost which by voting for the amendment would be saved.
The European Court of Human Rights today delivered its judgment in the case of Open Door Counselling Limited and Dublin Well Woman Centre Limited and Others on 29 October, 1992. The European Court of Human Rights held, by 15 votes to eight, that there had been a violation of Article 10 — the right to receive and impart information — of the European Convention on Human Rights. The Fourteenth Amendment of the Constitution Bill 1992, proposes an amendment to the Constitution on the question of information. The proposal in the Bill, which the Government intend should be put to the people, will provide that Article 40.3.3º cannot in future be invoked, as it was in the Grogan case and Well Woman Centre cases, to limit freedom to obtain or make available in accordance with conditions to be laid down by law, information relating to services lawfully available in another state.
The Government are satisfied that the inclusion of this provision in Article 40.3.3º of the Constitution will cure the breach of the European Convention found by the European Court in today's judgment. The Minister for Justice had already indicated in the debates in the Dáil and Seanad on the Fourteenth Amendment Bill that there were no grounds for believing that the then expected judgment of the European Court would interfere in any way with the constitutional amendment proposal. That, in fact, has turned out to be the case.
In conclusion, I should say that, as was recognised in many of the contributions, including Senator Conroy's, the whole question of the right to life raises the most profound and delicate issues — moral, medical and legal. Harmonising competing or conflicting rights to life in particular creates problems of a most difficult not to say intractable kind. The X case and the public debate in its aftermath gave rise to a series of complex and difficult issues. I think that any fair-minded and impartial observer would be prepared to acknowledge that the proposals in three Bills to amend the Constitution that are now before the House represent a conscientious, reasonable and balanced response to those issues and one that is in the public interest. The Government are satisfied that these proposals are the correct response to the problems arising and are happy to commend these amendments of the Constitution to the people in the forthcoming referenda on 3 December.
