Amendments Nos. 1,2,2a and 3 are related and may be discussed together.
An Bille Um An Dóú Leasú Déag ar an mBunreacht, 1992: An Coiste agus na Céimeanna Deiridh. Twelfth Amendment of the Constitution Bill, 1992: Committee and Final Stages.
Ailt 1 agus 2 aontaithe.
Sections 1 and 2 agreed to.
AN SCEIDEAL.
SCHEDULE.
An Leas-Chathaoirleach
Tairgim leasú a 1:
I gCuid I, leathanach 7, línte 4 agus 5, ", ar leith ó shláinte, na máthar a shábháil" a scriosadh agus "na máthar a chosaint" a chur ina ionad,
agus
I gCuid II, leathanach 7, líne 10, "save the life, as distinct from the health," a scriosadh agus "protect the life" a chur in a ionad.
I move amendment No. 1:
In Part I, page 6, lines 4 and 5, to delete ", are leith ó shláinte, na máthar a shábháil" and substitute "na máthar a chosaint",
and
In Part II, page 6, line 10, to delete "save the life, as distinct from the health," and substitute "protect the life".
I spoke at length on Second Stage about my views in relation to the wording that will be put before the people on this so-called substantive amendment. I feel very strongly that it is impossible to distinguish on a spectrum of degrees of health problems. It would be impossible to state with any medical certainty when a health problem becomes a life threatening problem. That is also the view of the medical profession generally. Despite assurances that there will be guidelines, to quote the Minister for Justice, in relation to this area I urgently and respectfully request that the Minister accede to the amendment before us today.
The frustration in debating these issues has been referred to by other Senators because, quite frankly, we feel the Minister is not listening and that regardless how good a case is put by anyone on any side of this House today the Minister will not heed it. We feel it is just an exercise to get the Bills through the Upper Chamber as quickly as possible and have them signed. I really thought the Minister was prepared to listen and had the manners to listen to Senators when they are making their case, it would help him to know our case.
On a point of order, Senator Doyle referred to my lack of manners. I am listening to Senator Doyle and I would listen even more attentively if I heard anything new but it is the same old Fine Gael hypocrisy that went on in the Dáil and which has been said here already. I have nothing new to listen to; I might as well be doing something more useful.
With respect, the Minister is lowering the tone of this House.
Senator Doyle, without interruption.
It was Senator Doyle who lowered the tone.
The Minister came into this House this morning to start his election campaign. On every contribution from a Fine Gael Senator he has been political in his reply. He is a disgrace to this Government because all his colleagues, Ministers and junior Ministers, have grace and have respect for all politicians. This Minister has been——
Acting Chairman
Resume your seat, Senator.
In deference to the Chair, I will.
Acting Chairman
We want no more interruptions in the House. We want to continue this debate in an orderly fashion. Please do not talk about elections. We are dealing with an emotive issue——
Remind the Minister of that and that Fine Gael Senators are entitled to their views.
Acting Chairman
It is a very special issue to yourself and women around the country, so please keep cool. Please continue and let us have no more interruptions.
I thank the Chair for his advice. I wish to state that I find this Minister's attitude to the Fine Gael contributions in this House a disgrace to him and his Government.
Acting Chairman
Please, Senator.
They stand indicted for their attitude to another political party's view on a very difficult issue.
Acting Chairman
Please, Senator, you gave me a commitment that you would continue.
In deference to the Chair I will continue to make my case. Thank you for your patience.
I was stating that I hoped the Minister and his colleagues will listen to the case being made now in relation to amending the substantive issue before this House. It is obvious from this Minister's attitude this morning that the Fine Gael case will not be acceptable to him as he has his eye on the ball as to what will happen next week.
The issue before us today affects the women from 14 years of age to 50 years of age. Many women are very concerned as to why reference to their health is excluded as a consideration, no matter how serious the health issue may be. I am not talking about a frivolous health issue; I am talking about serious health issues that could be life shortening or that could be life threatening at some other point down the road once the child was born. Why do they have to be specifically excluded now? I would go so far as to say I would accept no reference to health in the amendment. I would like to see that word excluded. I do not like the reference that there is an exception on health issues; that is not acceptable.
As we propose in our amendment, if the reference to the health of a woman were excluded altogether, women would be satisfied and would then be able to rely on the good judgment of the medical profession and accept the spirit of what is being proposed here, that it is really in the cases of utmost gravity which are genuinely life threatening, that limited access to termination of pregnancy — which, quite frankly, is limited access to abortion — will now be allowed in this country. I urge the Minister, despite the political prejudices he has displayed this morning, to listen to the plea I am making in relation to this amendment.
Make sense and I will listen.
I urge him on this important issue on which I spoke at length yesterday to reconsider the position and accept the amendment before him today.
Are we discussing amendments Nos. 1, 2 and 3?
Acting Chairman
Amendments Nos. 1, 2, 2a and 3.
Amendment No. 2a is Senator Hanafin's amendment.
Acting Chairman
It is on the supplementary list.
I find it difficult to understand how we can discuss Senator Hanafin's amendment with the other three. It has a direct opposite intent.
Acting Chairman
It is an alternative proposal.
I accept the guidance of the Chair. I do no want to add to the heat that has been generated in the last few minutes. I am increasingly reluctant to talk about it because it involves women in a way that no man can comprehend. I have heard a lot about the commitment to women from the other side of the House and on my left as well. I keep hearing over and over again that nothing will ever be done that will put a woman's life at risk.
In virtually every State-funded maternity hospital in the country a woman is not allowed the choice of safely ending her capacity to have children by female sterilisation because of the moralistic antics of men on health boards and on hospital boards of ethics who decide that they know better than women whether or not they can have more children. They impose Roman Catholic morality on those women, not some sort of humanistic morality. They stick Roman Catholic rigid morality down their throats in maternity hospitals and say "No, you cannot have a sterilisation in our State-funded hospital" and then they come in here and tell us they are concerned about the lives and health of women. Stick it somewhere, will you. You do not care about women. You are afraid of the Catholic Church. You run away from them on the simple issue of sterilisation and I am supposed to believe on this issue that you care about women.
The first two amendments are directed towards eliminating the distinction that is being made by the Government amendment on the referendum, namely, the distinction between the health and life of the mother. I must say, reading the speech made by the Minister for Justice, it was very hard to figure out what point he was making. He talked about a spectrum of gravity that could be defined in a life threatening situation. Where is the spectrum of gravity in a health threatening situation where the effect of not taking action is to shorten the life of the mother or to seriously or irreparably damage the life that does not result in an immediate threat to her life? What I find unacceptable is that it is left to the capacity of the Minister to more or less adjudicate on a personal basis and be absolutely convinced that he can tell us exactly where the line can be drawn when it comes to a threat to health.
It will be absolutely impossible to make a decision on that matter. We will put the medical profession in an absolutely impossible situation. There are no legislative guidelines to be prescribed here. How will we operate without legislative guidelines on this matter? We were able to operate with legislative guidelines in relation to freedom of information. In fact, the Minister said it was absolutely essential; but how are we to operate this when there is no specific provision for conditions subject to law? It is stated as an absolute principle and it is only the Minister for Justice who clearly sees a health threatening situation being totally different from a life threatening situation.
I am not prepared to accept the black and white prescription that is in this Bill. I ask the Minister to consider seriously the amendment that we put forward.
I second Senator Doyle's amendment and say that this will eventually be determined in the courts. There is a lot of disagreement at present among medical people as to when health threatening becomes life threatening, but because we are now writing it into the Constitution it will eventually be determined by lawyers on the basis of interpretation of words. Doctors and medics will be constrained from intervening when there is doubt as to when health threatening becomes life threatening and because of this women's health and lives will be in danger. It is unnecessary to have such a wording. It will create difficulties and bring us back to the 1983 situation again within a short time when cases will be tested, perhaps by the members of a family of a women who is in need of medical intervention or indeed by groups who may feel they have a point to make or that it is an issue to be determined by the courts.
I do not propose to waste the House's time by going over all the ground again. I support the amendment before the House because what is proposed by way of the constitutional amendment is unacceptable. It has been said again and again that a main reason for this distinction is that it has arguably opened the floodgates elsewhere to wholesale abortion, that once you conceive that health is a criteria for determining abortion then that gradually gives way to abortion on demand. I think I am right in saying this is a mainline objection to removing the distinction. I suggest to the Minister that it does not follow that what has become perhaps the practice in another jurisdiction and in a very different culture would go the same way here, unless you accept of course the simplistic proposition that if you change the law you change morality. As I made clear in my Second Stage speech, I do not accept the reasoning, of people like Cardinal Daly because there are a whole lot of factors in society that determine people's attitude to matters such as abortion.
In Ireland we have, to say the least, a very strong family orientated tradition. For all our hypocrisy, there is a network of relationships that are life sustaining and, above all of course, we have a medical profession which is extremely conservative and hospital services which are similarly conservative. I suggest that for those reasons and a whole complex of factors it is not at all reasonable to argue that if you give in on this distinction it will lead to abortion on demand. We have a very different society, and are likely to have for a long time to come, and it will not be changed one way or the other by legislating for a minority of people who have to be legislated for. Certainly the solution is not through putting this complexity into the Constitution.
In supporting the amendment in the names of Senators Manning and Doyle we are back again to discussion of the fact that there was need for legislation and that it is impossible in a matter of a few sentences to legislate for the myriad of possibilities and traumatic cases that will occur. Senator Neville referred to it being brought to the courts again. Hopefully, it will not, but that cannot be ruled out.
There is confusion among the experts and utter confusion among the electorate. Many people who would be very conscious about casting their votes have said to me they will not vote because the matter is so complex.
The health of the mother can be separated into two distinct aspects, physical health and psychological health. The amendment attempts to differentiate between an ailment which can be looked upon as life threatening as distinct from being life shortening. Any serious ailment which a pregnant mother may have and which is not treated for a period of time because of her pregnancy is life shortening. The Minister has listed a series of ailments which he says can be treated under the constitutional provision but the conditions are life threatening in the short term.
One could argue with equal validity that a whole range of other ailments which may not be life threatening may be life shortening. I will give an example of a young girl in her early twenties who has an ailment left untreated because of her pregnancy and this failure to treat it could result in her death in her thirties. What are we talking about here? We are talking about a specific case and what we are really saying is she is left to die. Doctors will be loath to make decisions in specific instances. There was a very humane response by the Irish people to the X case. Rape and incest cases are on the increase as we know because women are coming forward and they are being open about them. It is as if we said the X case is over and it will never happen again.
We are looking into the future and saying these few words will cover every eventuality. The letters to the editors of newpapers, not from interested members of the general public but from obstetricians, psychiatrists, psychologists; gynaecologists etc., question the validity of amending the Constitution rather than having legislation to deal with the specifics. This is why we are so concerned with the distinction between health and life. I do not think we can draw a line and say one is life and one is health.
We would not be in the position of putting down amendments if this matter were dealt with in a different way. It has been taken over by Cabinet sub-committees, barrack-room lawyers, special interest groups, etc., and has led to considerable confusion. In the midst of all that, women have been denied access to the deliberations and, as a consequence, they are afraid.
Some of the women I spoke to are very concerned about the wording and its effects. For example, their real concern is that if you use the word "save" it means that a woman could go to death's door before she would be treated. That is the way it could be interpreted by consultants. If the word "protection" were used women would know that everything would be done in plenty of time to make sure that the protection was given which was necessary to save life. People are scared of the word "save". They think it really means when one is at death's door or close to death then they will be treated but that someone will be left waiting for too long and all sorts of problems will be created.
I understand I have to move my amendment at this stage. I have never moved an amendment in my name before and I am slightly confused about procedure.
Acting Chairman
Amendment No. 2 (a) is the Senator's amendment.
That is what confused me because it has no connection whatsoever with the other amendments listed. However, I have been advised that is the proper way to deal with it. My amendment is to delete all words after "it shall be unlawful to" and insert "act in such a way as to bring about the termination of the life of an unborn unless such termination arises indirectly as a side-effect of treatment designed to protect the life of the mother".
The intent of my amendment is to rule out the direct killing of the unborn child and to ensure that the mother continues to receive all necessary care and treatment, even such treatments as have the indirect and unwelcome consequence of the loss of her child. In other words, my amendment reflects current medical practice in Ireland, both before and after the Eighth Amendment and is entirely in keeping with the current guidelines of the Medical Council. These guidelines stress the entitlement of the mother to all treatment she needs, even the most aggressive treatments where necessary. The guidelines also point out that the intentional destruction of the life of the unborn is forbidden, and indeed this would amount to serious professional misconduct.
The Minister's proposal is to make lawful such direct and intentional destruction of the life of the unborn; in other words, it provides for direct abortion. The Minister is almost saying that women have died in this country because of the absence of the abortion regime he is proposing. There is no evidence that this is so; all the evidence is quite to the contrary.
I would like to refer to page five of Current Controversies in Abortion, an information update. This has been circulated to all Members. It says:
In 1990, with 52,954 live births in Ireland, there were 2 maternal deaths (2); one from an acute asthmatic attack in a normal pregnancy, the other from a post-partum haemorrhage following a normal antenatal period and delivery.
At the outset, I would like to comment on what Senator Brendan Ryan said about the attitude of men. He seemed to be looking very harshly at me but I do not think he was having a go at me personally in relation to sterilisation.
Sterilisation is a moral issue and there are guidelines concerning it in the Irish code of ethics of doctors. It does not relate directly to the law of the land. It would be wrong to include the question of sterilisation in this very different debate. The reality is that sterilisation is available in most cities in Ireland although the Senator made the point, probably correctly, that it is not available in many health board hospitals. I repeat, sterilisation is a matter for a different debate.
Getting back to this amendment which has primarily to do with what is commonly known as the substantive issue, it arose out of the X case which eventually ended up in the Supreme Court. On 5 March last the Supreme Court gave a very lengthy deliberation on the issue before it. In the deliberation — it is important to note this — every one of the judges from the Chief Justice down made it clear that abortion would be allowed only where there was real and substantial danger to the life of the mother. To this extent, the Government's proposal is consistent with the Supreme Court decision in every respect, except for the element of suicide. We must be very clear in this regard. The Government and the Minister had no choice but to take full account of what the Supreme Court decided.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
The thrust, wording and concept of this amendment is primarily derived from the Supreme Court decision, the essence of which was that the paramount concern was the life of the mother. Where a miscarriage or abortion takes place, the life of the mother must, at all times, be protected.
The Opposition have put down an amendment proposing that the words "as distinct from the health" be deleted. There is some validity to their argument. This is a grey area. We know the old phrase that doctors differ and patients die. However, the view of the Government, and my view, is that we are closing the loophole that came to light as a result of the X case. The deletion of these words would open a loophole as happened in Britain following the 1967 Abortion Act and the subsequent Bourne case in which this issue as to what constituted health was decided in a British court. It is a historical fact that the floodgates were opened in Great Britain as a result of the decision in the Bourne case. If those words were deleted here they could be challenged and we would have a similar situation to that in Britain where there is a widespread abortion. I am not sure of the figures but there have been in the region of three million abortions in Britain since the 1967 Act, was passed — a staggering figure.
I am anti-abortion; our party and Government are anti-abortion. In the framing of these referenda we are trying to put the country back to the position set down in the 1861 Offences Against the Persons Act. That Act was against what was called unlawful abortion. In 1983 a referendum copperfastened and enshrined in our Constitution the right of the unborn child. Subsequently we had the case and the Protocol to the Maastricht Treaty.
All these issues have nothing to do with the Government. We were faced with the problem and in March of this year within days of the Supreme Court decision, the Minister for Justice set up a Government sub-committee to examine the situation. The Government had to find the wording that would be for the common good.
We have heard a lot of comment from the other side, but on 9 June, by agreement of all of the parties, the two prongs of this debate were decided on. However, the real difference is on the substantial issue.
That is correct.
I am glad both Labour and Fine Gael have honoured that to the extent that they did not vote against some amendments.
The position of the Government arising out of the X case was one I would not wish on anybody. Most people in this House are anti-abortion; they are pro-life, they are pro-women, etc.
Everyone, not just some, or most, all of us are pro-life.
Senator O'Donovan, without interruption, please.
I am being helpful. I am clarifying something.
I know that.
I said "everyone".
The Senator said "most".
The Government were faced with an unenviable task of deciding what to do because, if you analyse the result of the Supreme Court decision in the X case — and this was the opinion shared by most prominent and eminent lawyers — you created an open ended situation with regard to abortion. This Government communicated with all the other parties. They may not have come to consensus on all three issues but they did on two issues — that relating to travel and the right to information. Despite a number of meetings, consensus was not achieved on the substantive issue. I do not want to blame Fine Gael, Labour or the other parties, they have a point. The Government were faced with a decision of whether to allow abortion and the Government said no.
Some people in this country are prochoice in cases of rape, incest, etc., or where a woman in her forties is pregnant and may have a Down's Syndrome child. Do you allow abortion in that case? We say no. We were faced with the choice of bringing in legislation or having a referendum to deal with the problem which arose in the X case.
I spoke on this issue last February or March, and said I had an open mind on whether legislation would cure the problem or whether we should have a referendum. I am open to correction on this, but I think the parties who agreed to this pact last June decided a referendum should be held. The Minister, Deputy O'Dea said earlier today, that legislation will have to be introduced specifying the sort of information that might be made available.
In relation to Article 40.3.3º, the Government were prudent to decide, after much consultation, that a referendum would have to be held.
I do not wish to interrupt the Senator but, on a point of order, is the Senator not making a Second Stage speech when we have precious little time left to us, and there is still a lot to be said?
It is not my intention——
I agree with Senator Murphy. I was hoping Senator O'Donovan would conclude as soon as possible, but according to the rule Senators are allowed to explain matters as best they can. Hopefully, Senator O'Donovan will come to that point soon.
I have never been long winded in the three years I have been in this House and I promise Senator Murphy I will not be now.
In a given situation the Government had to make a decision. We chose a form of wording which others have not agreed to, but, I am sure are public will agree it was the right wording.
My friend and colleague, Senator Hanafin, has proposed an amendment, as he is entitled to do. I do not want to be offensive but regarding his amendment I would like to refer to a letter which appeared in a recent edition of the Sunday Tribune. The letter was signed by Patricia Casey, Cornelius O'Leary and Mary McAleese, who were prominent in the so-called SPUC campaign.
All Fianna Fáil people were they not?
Not necessarily.
As it happened, they were.
You cannot blame them for voting the right way.
Senator O'Donovan, without interruption.
These very eminent people, having studied the wording by Fianna Fáil and the Government, agreed substantially with the wording and said that the Government are doing the right thing. We are trying to eliminate abortion in this country. This letter's content and tone lead me to believe Senator Hanafin's amendment is without substance. It says:
In spite of such opposition the Government has courageously chosen to provide the Irish people with an opportunity to overturn the Supreme Court decision. We particularly welcome the Government's recognition that threat of suicide provides no medical justificiation whatever for abortion.
Shame.
It goes on to say:
We see this referendum as restoring the law to the position it was in prior to the X case. It gives clear guidelines to doctors and protection to both expectant mothers and their babies. It is therefore fundamentally pro-life and in no way can be regarded as a comfort to those who want direct abortion in Ireland.
I do not intend to read all the letter into the record but there are two other paragraphs I would like to refer to.
In fairness, I would like Senator O'Donovan to conclude as soon as possible because other Senators wish to speak.
I will be about one minute.
The letter goes on:
To those who object to the distinction between the "life" and "health" of the mother we would ask them to consider the experience under the English Abortion Act, 1967, where over three millions abortions have been performed on the grounds of protecting the "health" of the mother.
No wording is perfect but we believe the wording offered by the Government is pro-woman and pro-unborn. It is an opportunity to reaffirm the State's commitment to both the unborn and expectant mothers. This chance is not likely to be given again.
The wording on this substantive issue has been prudently, and with great deliberation, chosen by the Government. It is the right course of action. I would respectfully suggest to my colleague Senator Hanafin, who proposed one of these amendments, that he row in behind the Government, because our proposal is closer to the points made by his association than the alternatives which will face this country should the referenda next December be defeated.
Would the Chair remind us which amendments we are dealing with?
Amendments Nos. 1, 2, 2a and 3 are being discussed together.
First, I would like to refer to remarks made by the previous speaker who quoted a letter in the last weekend's Sunday Tribune. I would advise him to read the answer in the next edition.
I put forward an amendment today fully aware that, I would not have any support. If I were to have any hope of that amendment being put here today, I would have to support an amendment to delete certain words. I will not be doing that because it would accommodate other amendments with which I can hardly agree. I will not be voting on the side of the Government because I do not agree with the Government proposed wording.
I have put forward an alternative form of words to show that if we want to avoid direct abortion we can still do so while fully protecting the rights of the mothers. We all wish to protect expectant mothers but we do not need direct abortion to do so.
It is wrong for the Government to imply that there is only one alternative if the Twelfth Amendment is defeated. There are obviously other ways of doing this. I merely want to show that if there is a will we can easily find a way to avoid abortion.
The Minister, Deputy O'Dea, referred to me in his speech last night. I did not hear him — maybe I am better off — but I respect his point of view. He is a man who should have got recognition before now; he is a man who will go far. I hope he goes right to the top and makes me one of his 11 nominees because that will be my only chance to get back here.
Listen to this.
I wish him well.
Thank you.
I hope I am never again in the position where I have to oppose Fianna Fáil. It causes me great stress when I have to do so. It did not give me and joy to do it before and I am thankful for the understanding and courtesy shown to me by almost all the Members of this House.
I hope this public debate will be calm and dignified with respect for everyone's point of view.
May God direct everybody because in this confused state the people need direction.
I have trouble composing myself because I am really moved. My eyes are bright with unshed tears at the anguish which has been expressed by Senator Hanafin over his rift from Fianna Fáil. In the presence of such tribal emotion one is really speechless.
I do not see the point of Senator Hanafin's amendment. Am I not right in thinking it is already the practice that what is called indirect termination is the norm, and the Catholic norm? What is the point of this amendment?
The amendment implies that Senator Hanafin will not accept what is now, almost dogmatically stated by authoritative medical people, that there are cases in which a termination of pregnancy is necessary. These cases may be very rare, but they are there. The wilful way in which Senator Hanafin and his colleagues and followers deny this fact makes one despair that they ever listen to the voice of reason.
First, I would like to address myself to the amendment proposed by Senator Hanafin. The emphasis on direct and indirect has two basic flaws. The first flaw is simple and relates to the purpose of a termination. We must be clear that termination in certain circumstances has always been accepted. The purpose must be to save the life of the mother but it must be to also vindicate, where practicable, the equal right to life of the child. It must be a positive thing.
The second flaw is that if people are worried — and I would be — about possible interpretations of the Government's proposal in the future, lawyers would have a field day discussing the minute differences between direct and indirect termination of pregnancy. What is direct? What is indirect? What is cause and effect?
The Government are trying to lay down what has been common practice, i.e., to save the life of the mother and, as far as practicable, the life of the unborn. I accept that in most cases that is done by what is loosely called indirect abortion, for example, in ectopic pregnancy treatments, etc. As medical science develops it is already getting to the point where, when termination is absolutely necessary to save the life of the mother, there might be a variety of methods by which this could be done. In these cases the saving of both lives is impossible. That is the core issue and, to a certain extent, we are actually losing sight of the core issue in this debate.
The thrust of what we want to do, as Article 40.3.3º sets out to do, is to ensure that the life of the mother is not put at risk and that there would be no unnecessary death or termination of the life of the unborn.
Perhaps the Minister would address the following points, specifically. It is my understanding that, in the event of terminating a pregnancy at 24, 25 or 26 weeks should this be necessary to save the life of the mother, as can happen in a case of toxaemia, the doctor would be obliged to carry out that termination of pregnancy in such a way as to maximise the survival of the foetus after birth and would not carry out what would be loosely termed a direct abortion. There would be an obligation on him to act in that way because of the equal right to life of the child, but one would intervene medically to save the mother.
Statistics prove that medical intervention in these cases in Ireland has an unparalleled record of ensuring not only the survival of the mother and the vindication of her rights but also a high rate of survival of the unborn child. My understanding is that it would be obligatory to do all that under the wording put forward by the Government.
That is correct.
I cannot see that there is anything being introduced here that is substantially different from current medical practice in Ireland, and that record stands on its merit.
As regards the proposals to delete the words "as opposed to the health", the reality should be faced up to. Everybody knows that if a court were to rule that "life", "quality of life" and "health" were to be give the same value that would amount to the introduction of abortion on demand. We know that from what has happened in other lands. If people want that, fair enough, but they should at least be up front and recognise that possibility. That happened in other jurisdictions and that would be likely to happen if such a judgment were given here. Therefore, for those people who want the choice not to have that scenario, the proposed wording, unfortunately, has to have that stark reality in it.
The stark reality of abortion.
The stark reality of abortion has always been there. If you take the definition of "abortion" as the direct or indirect termination of the life of the foetus, I know of nobody who does not, in certain circumstances, permit the taking of the life of the unborn. I have not heard of anybody proposing that in no circumstances, directly or indirectly, will it be possible to take the life of the unborn. As far as I am concerned, it has never been proposed that the taking of the life of the unborn should be ruled out in all circumstances. In fact, the 1861 Act refers to unlawful abortion.
So, direct termination is possible in limited circumstances; abortion is possible in limited circumstances. I think we might be closer in agreement if we could get our wording together.
If we would just be honest about it.
I do not want talk across the floor. Will Senators direct their remarks through the Chair, please?
A student made a statement the other night that we should not kill. That is a fine, easy statement, but all the students did not agree with that because everybody recognises there are circumstances when there is the right to kill, for example, in self-defence. There have always been circumstances in which abortion, direct and indirect, has been recognised. An ectopic pregnancy is one well documented example where everybody is agreed it is right morally, legally and every other way to terminate the life of the unborn to save the mother's life. There is nothing new in that. That was always perceived under Article 40.3.3º. It was also perceived to be legal under the 1861 Act. Terminations, abortions, call them what you want, have always been seen as acceptable in certain circumstances. Some people do not seem to recognise that fact in this debate; they do not seem to recognise that I have always recognised that fact and have no difficulty with it; what I have always opposed is the wilful destruction of the foetus, and I will continue to oppose that. It is my right to do so. If people want to have a contrary view I accept that, but to say that people like me did not recognise any circumstances in which a termination could take place would be foolish. What I am arguing is that the over-emphasis on the question of whether termination, direct or indirect, has been the slat tomhais, is open to abuse; if somebody found a very effective way of doing it indirectly that would be an abuse. The slat tomhais must be that abortion would be carried out only when it was necessary to save the life of the mother. That is the only reasonable measuring stick to ensure the protection of women and the protection of the unborn. It is a balance. There is nothing in life that is not a balance. No matter where you draw the line you will always find marginal cases. This is not recognised. We all know there will be marginal cases in any law we enact. You will always get a hard case and I keep giving examples. You draw the line which gives the maximum protection without overbalancing in one direction or the other.
Without wanting intent in the law — because to measure intent in legal terms is impossible — the object of the exercise, from the perspective of the people on this side, is to preserve all life, the mother's life and the child's life, but in doing that you make sure you preserve the mother's life. In other words, you do everything in a positive way. Therefore, I could not agree with the amendment as proposed.
I welcome Senator Ó Cuív's statement that he accepts that abortion does exist and has existed in this country.
(Interruptions.)
That is what he said as the record will show. I also welcome the fact that he invites people like myself to come out and make our position clear and he asks whether we are in favour of abortion. I am completely pro-choice. I recognise the existence of abortion. I am not caught up in the Fianna Fáil riddle: when is an abortion not an abortion and how can we evade our moral responsibility in this way?
I know we are appealed to to keep passions out of this debate, and that is very proper, but I felt a moral revulsion at the Minister's speech and references made by Senator O'Donovan to this question of seeking consensus. The Minister referred to this also. He said:
Unfortunately that consensus did not prove possible but I believe that the process of trying to achieve it at the very least threw some light on many complexities involved. To the extent that there are some who support, in effect, abortion on demand, clearly there never was a prospect of consensus with them.
A very neat piece of political footwork. What he is actually saying is that some of the parties with whom he negotiated are proponents of abortion on demand. I do not think that meets the criteria of honesty which one is tempted to suggest would be appropriate to this House if not to the beef tribunal.
Senator Hanafin's amendment raises the question of direct and indirect abortion. He is entitled to do so. There is no such animal known to law, of course, none whatever, but the principle of law is perfectly clear — a foreseen consequence is a direct and intended consequence as far as the law is concerned. It is as simple and clear as that. But, of course, there is — and this is the interesting thing — a theological concept of the double effect; there is direct and indirect abortion as far as a Roman Catholic theologian would be concerned. I mentioned yesterday that I regretted the intervention of the Pope, directly, politically, as a head of State, in calling for a referendum in this country. He is quite entitled to discuss the theological implications but he has an ambassador here and he has in Senator Hanafin, who is a papal knight, a foot soldier——
An officer.
An officer and a gentleman — but what he is promoting is not a legal concept, it is a theological concept and let us be quite clear about that.
The genesis of this was the X case. The tragic reality is that because of the restrictive nature of this series of legislative proposals, should that case arise again that young woman would be in exactly the same situation; her health would not be protected and the question of suicide is also effectively ruled out. Let us face that. This is putting us back where we were in the beginning, although for the first time it does at least recognise the existence of abortion.
I think the health of women is important. It is frightening that the overwhelmingly male legislature of this country can afford to be so cavalier of women's health and can be so precise, so definitive and so unequivocal in the expression of our views. We are told that the Government side are determined to keep abortion out at all costs, even though they are legalising it in certain circumstances, but only when the life of the mother is directly threatened.
There is a very interesting article in The Irish Times of Monday, 19 October by Professor Turlough Fitzgerald, Professor of Anatomy in Galway and an author of textbooks on embryology and neuroanatomy. I would like to take a couple of ideas from it. I will not quote from it as I quoted from it yesterday. It is very interesting. First, he gives details about the pre-embryonic period and the way in which the complex organism of the foetus develops. He says that because the aberrant conceptus is shed along with the next menstrual flow, the mother is usually unaware that anything has gone amiss. Those readers who are not already familiar with this fact may be shocked to learn that nature is quite cavalier in dealing with malformed conceptuses. In other words, nature will not be quite so delicate as the male Members of this House tend to be.
I would like to pose a direct question to the Minister and I would welcome an answer. In the question of the distinction between the health and life of a mother, is the Minister prepared to answer to a woman who, because of the lack of availability of abortion in the circumstances of anencephalic pregnancy, is required to go to full term with an entity that has no sensible intelligent life nor the possibility of such? I quote from Professor Fitzgerald again:
Finally, given the primacy of the cerebral cortex for the establishment of the human personality, what should our opinion be of foetuses that are born without a cerebral cortex? These foetuses are anencephalic— without a brain, because the head end of the neural tube fails to close during the fourth week. It is easily detected by the 16th week. The condition occurs once in every thousand births, and it is incompatible with survival. [And this is the question.] Will someone please explain why any mother should be obliged to carry an anencephalic foetus to full term?
Will the Minister explain this to me? Will Members on this side of the House explain to me what purpose is served by forcing with the full vigor of the criminal law, a woman to carry to full term an anencephalic foetus? I do not wish to make light of this and I do not say this in a light manner but a colleague of mine said to me the other day that this sort of thing makes him think of a farmer who when the henhouse goes on fire, rushes to save the eggs and leaves the hens to be consigned to the flames. It is as idiotic as that. Perhaps that is one of the hard cases.
Poultry.
Poultry people are farmers, I understand, on this side of the country; perhaps not west of the Shannon.
You would not be a judge.
You are right, I would not be a judge but I am capable of making distinctions which I would ask the Minister to deal with.
Your analogy is false.
Forget about the analogy and answer the question. I do not want to provide the Minister, with the opportunity to evade the question.
I will answer any question the Senator puts.
Is the Minister happy that the legislation as currently envisaged will have the effect of forcing a woman to go to full term with an anencephalic pregnancy? They are happy? Senator Conroy is nodding.
With all this running around the Chamber like headless chickens I a bit confused.
It is not the first time the Senator was confused either; she is permanently confused.
On a point of information, I do no want to usurp the prerogative of the Chair but we have only 20 minutes——
I have a note taken that I would like to hear the Minister's response. Could we keep this as short as possible?
I was quite strong in my address on Second Stage and I was pleased to hear Minister O'Dea's reply on the information and counselling. He said the legislation is being put in place and I thank him for that. We have the experts telling us what should and should not be done, using the word "abortion" and all the rest of it. This debate is a complex one and as Senator Norris has said, up to now it has been calm. Because there is confusion outside I do not think at this late stage this afternoon we should try to confuse the issues.
I welcome the debate that has taken place and the replies given by the Minister here today. What we are trying to do at all costs is to save the lives of the mothers of this nation from today on and to save the lives of the babies they are carrying. As legislators, it is our responsibility to act calmly. There is a necessity for more education and more advice for young people.
We have under-estimated the feelings of women, particularly expectant mothers. We have also under-estimated the doctors and the treatment they give. There are not queues of women wanting abortions. It is quite clear from the Minister for Health that the code of ethics will require constant scrutiny in the light of the outcome of the vote on 3 December. I welcome the three ballot papers so that there will not be confusion.
I have the reputation of challenging people and frightening them. I will not live up to my name on this occasions but if people vote one way on the Thirteenth and Fourtheenth Amendments and vote the opposite way on the Twelfth Amendment, the consequences as I understand it from listening to experts, if there are such people around, from listening to Ministers and advisers, would be exactly what the pro-life people and all of us, as pro-life people, do not wish.
Senator Doyle, I would like the debate brought to a conclusion quickly. We have not heard the Minister and I am very anxious to hear him as soon as possible.
It is very difficult to debate such a wide variety of amendments as we have here because we are going from one extreme point of view, and I respect the view of Senator Hanafin, to another extreme point of view and most of us are somewhere in the middle.
There is not as large a difference between the two main parties in this House as might appear. Senator Ó Cuív's honesty in relation to the wording used in referring to the present situation and what has been around since 1861 clarifies for me the Fianna Fáil thinking to some extent in relation to it. Fine Gael are not for abortion on demand, and I suspect most people are not. Some are, most people are not. Having said that, Fine Gael strongly believe that the health and the life of the woman are of paramount importance. I am not talking about a woman who just feels it inconvenient to be pregnant for a race meeting in six months time because she will not fit into her outfit or a woman whose career might be jeopardised if she had a baby and who wants to have an abortion instead of using contraception. We must remember, as my colleague pointed out earlier, that family planning services are still not available for most women in rural Ireland. It is still a difficult area and that has spawned many other problems down the line. However, I will stick specifically to what we are talking about here today.
Most of us cannot accept Senator Hanafin's point of view although we respect his sincerity. It has been pointed out they are theological rather than political views and regardless of our own personal beliefs we must legislate for the greater good of the country if we are a pluralist society. After all, we are supposed to be a republic and we should behave as Senators in a republic in that context. We must look at what we are doing.
As it seems to be fashionable to quote from newspapers here today, in The Irish Times of 24 October last there was a very interesting letter from 14 or 15 obstetricians and gynaecologists from Dublin, Letterkenny, Limerick, Tralee, Portlaoise, Wexford, Galway, Cork. I am not just talking about some fashionable group of obstetricians and gynaecologists in Dublin but right through our general hospitals. They contradict, respectfully, the views of Senator Hanafin. They say:
Although the situation seldom arises, we believe that sometimes the continuation of the pregnancy poses a real and substantial threat to the life of the mother.
Reference to the most recent "Report on Confidential Enquiries into Maternal Deaths in the United Kingdom for the Years 1985-1987" reveal some maternal deaths where the life of the mother might have been saved if the pregnancy had ended rather than been allowed continue.
I will not read the rest of the letter because time is not on my side. They are talking about the life of the mother. I am asking the Minister to go one step further, particularly in view of the statement of the Minister for Justice on Second Stage that normal medical practice operates on the basis of probability and not certainty. Because of that, I am asking the Minister to accept the Fine Gael amendment, and inded other similar amendments, to remove the words "as distinct from the health". Although I would like it, I am not asking him to put in a positive affirmation that health can be a consideration because he feels, and I respect his views, that that would open the doors to abortion on demand. All I ask is do not specifically exclude health issues, as the women of Ireland generally would ask.
The words of Article 40.3.3º, speaks of giving due regard to the equal right to life of the mother; "life" means more than just being alive. It is the quality of life that a mother who may already have five or six children, deserves to have. I urge the Minister to remove that phrase. I do not think there is a large difference between the two of us if that could be done.
Rape and incest are very emotive subjects. I have no difficulty so long as they can be reported very quickly to the relevant authorities for immediate treatment, morning after treatment or whatever. I hope this debate will at least alert people who are in those appalling positions to go immediately for help so they can be helped in the early weeks after their trauma.
I have difficulty in the area of handicap as indicated by Senator Norris. Common sense tells me in the specific case he mentioned that there is no hope for that foetus ever having a viable life, but we are getting into the area of ethnic cleansing, and we could go very quickly from the chronic case that has no viable life to less than perfect human beings, and we could get into the area of wanting a perfect beautiful race. I am nervous of getting into that area.
You have to look at real life cases to really appreciate the difficulties of the question. In my own county, about five miles from where I live, there is a woman who is expecting her eighth child. Three years ago she was diagnosed as having breast cancer, a mastectomy was performed and she had chemotherapy and radiotherapy and the cancer seemed to be in remission. She appealed at that stage — she is a medical card holder — for female sterilisation because of the risk of an eighth pregnancy — she has seven children under 12 years of age. She was refused because of the ethos of our health boards. She is now pregnant again. What we are talking about here today is directly relevant to this case. That woman is dying and this legislation will be too late, even under the life threatening clause, to help her. We have to be serious about this. They are real women, they are your mothers, your wives and your daughters we are talking about. The X case concentrated our minds and stopped us all theorising about how in an ideal world, a beautiful sin free Ireland, as someone referred to it, we would like the country to be run. It is not an ideal world and we must face up to realities, and that is what we are trying to do here today. I ask the Minister to please accept our amendment and remove the words "as distinct from the health" and let the rest take its course.
In relation to the specific terms of the Fine Gael amendment let us look at what the result of it would be. The term we are talking about and the term we want to amend is the "life of the mother." That expression, "the life of the mother" occurs in the original Article 40.3.3º which was passed in 1983. A few months ago the Supreme Court had the opportunity to interpret what the term "the life of the mother" meant. My interpretation of what the Supreme Court said was that when they referred to "life" they meant biological life. Chief Justice Finlay went so far as to distinguish the life from the health. In Judge Hederman's judgment you will find an expression to the effect that we must allow termination when the consequence of not allowing it is the death of the mother. There is a similar expression in Judge Flaherty's judgment. What the Supreme Court was talking about in interpreting the phrase "the life of the mother" was the biological life, exclusive of health; will she die if you do not perform the termination? We are inserting that phrase "the life of the mother" in the addition to Article 40.3.3º. All sides of the House will agree that the interpretation given to that phrase by the Supreme Court in the X case would be the same interpretation which the Supreme Court would give to what is added to Article 40.4.3º because what we are doing is expanding Article 40.3.3º. We are using the phrase "the life of the mother" a second time and, therefore, it would not be logical if the expression "the life of the mother" where it was added was given a different interpretation from "the life of the mother" where it appeared earlier.
This debate has been a rerun of the Dáil debate. In the Dáil debate I have to say — I do not want to bring party politics into this but I regret I have to because it is a Fine Gael amendment — there was total confusion and division in the Fine Gael approach to this matter. Deputy Bruton the Leader of Fine Gael, agreed with my interpretation of the Supreme Court decision. He said he felt that the Supreme Court meant "the life of the mother" to be the biological life of the mother, but he wanted us to take out the phrase "as distinct from health" because he felt it gave a wrong political signal. Deputy Shatter, on the other hand, did not agree. He said we cannot conclude——
On a point of order, are there different rules for Ministers and Members in this House? We are forbidden to quote from Dáil debates but the Minister is——
I am not quoting.
At all times, I would prefer to keep the business of the two Houses separate.
Deputy Shatter felt differently. He felt that it was not absolutely clear.
This is the Upper House.
I know where I am and I will not be moved up here by the electorate, unlike the Senator.
We knew it was an electoral speech; I have been proved right.
Let us assume that Deputy Bruton's interpretation and my interpretation is correct. That means that "life" means biological life; if you take out the phrase "as distinct from the health" you will change nothing. The situation will still prevail. The life of the mother is the criterion.
Then take it out.
That is the interpretation of the Supreme Court at the moment. If you take it out, the rule of stare decisis where courts follow earlier decisions of superior courts on the same point does not apply to the Supreme Court and a future Supreme Court can change their mind, they can change the law. At the moment the situation is as I have explained it; that is the present law but a future Supreme Court can change that and we are inserting this phrase to stop the possibility of that being changed.
What do Fine Gael want to leave in the Constitution? They want to leave a deliberate ambiguity. At best they do not want it changed at all; they want to take out the wording but nothing will change and, at worst, they want to write in an ambiguity, the expression "the life of the mother". We do not know exactly what it means and we do not know what interpretation the Supreme Court will give it in future. To me that is rank political hypocrisy. If Fine Gael are worried about the health of women and if all this hyperbole and emotionalism have any basis in real feeling, they should have put down an amendment to that effect. We do not want to write a deliberate ambiguity into the Constitution, something on which we do not know what attitude the Supreme Court will take in six months or six years time. Write in what you mean, say what you mean and mean what you say. That is my attitude and it should be the Fine Gael attitude as well.
There were a number of issues raised in relation to the amendments. One proposed to use the word "protect" instead of "save". Looking through dictionaries both words may be seen as synonymous, or at least very close to each other but when using the words in conjunction with the words "the life", "protect" might be given a more flexible meaning than "save". The purpose of the Government's proposals is to reflect the decision of the Supreme Court with the difference that the risk of self-destruction would be excluded and to allow any action necessary to save the life of the mother.
The Labour Party in putting forward the word "protect" suggested the term "save the life" implies restrictiveness. They claim that, where the doctors are satisfied that at some stage because of the stress of pregnancy the mother's life might be at serious risk from a heart attack, using the word "protect" would mean that immediate or early termination would be an option and that if "save her life" is used that option might not be available.
I have already pointed out on a number of occasions that the Supreme Court test does not require that the risk to the life must be immediate or imminent — in fact, it rejected such a contention — and neither does the Government proposal which is based on the Supreme Court test require that the risk be immediate. Cardiac disease is one of the life threatening conditions the Government had in mind when framing this proposal. I am satisfied that the Labour Party's fears in regard to treatment for such conditions are without foundation. The Government are satisfied that the phrase "save the life" is the correct one to achieve what they propose, that is, that a pregnant woman should have available to her all medical intervention necessary to avoid a real and substantial risk to her life.
On the amendment to remove the wording "as distinct from the health", Senators have referred to the innate offensiveness of that phrase. While I can appreciate the strength of feeling on this matter, many of the comments suggesting that the inclusion of the phrase would have adverse and unintended effects are without foundation. It has been suggested that a line cannot be unambiguously drawn between life and health and that this will give rise to difficulties, but the Supreme Court have 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 in 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 where otherwise she might die.
The Twelfth Amendment would not make any change to the Constitution test on this point as it has been interpreted by the Supreme Court up to now but would establish that interpretation as something which could not be changed at any time in the future without the consent of the people. All five members of the Supreme Court spoke specifically in terms of the life of the mother and in no instance was health unrelated to a risk to life contemplated as a ground. The distinction between life and health was included in the general test laid down by the Chief Justice and it is clear that that distinction was accepted by the other judges and was inherent in what they had to say.
Cuireadh an cheist: "Go n-aontaítear leis seo an Sceideal agus an Teideal agus go dtuairiscítear an Bille don Teach gan leasú agus go gcríochnaítear leis seo an Ceathrú Céim agus leis seo go ritear an Bille."
Question put: "That the Schedule and the Title are hereby agreed to and the Bill is reported to the House without amendment and the Fourth Stage is hereby completed and the Bill is hereby passed."
The Seanad divided: Tá, 26; Níl, 17.
Tá
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Seán.
- Cassidy, Donie.
- Conroy, Richard.
- Doherty, Seán.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Michael.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Donovan, Denis A.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Ryan, Eoin David.
- Wright, G.V.
Níl
- Cosgrave, Liam.
- Doyle, Avril.
- Hourigan, Richard V.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- McDonald, Charlie.
- Ross, Shane P.N.
- Ryan, John.
- Manning, Maurice.
- Murphy, John A.
- Naughten, Liam.
- Neville, Daniel.
- Norris, David.
- O'Reilly, Joe.
- Raftery, Tom.
- Upton, Pat.
Tellers: Tá, Senators E. Ryan and Fitzgerald; Níl, Senators Cosgrave and Neville.
Question declared carried.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.