Wednesday, 9 May 1979
Dáil Eireann Debate
Dr. Browne: In relation to the ruling out of order of amendment No. 1, I accept that the question of supply implies a fundamental change in policy and can be dealt with later, but the question of fitting seems to be a part of the medical process of consultation and I do not see how that can be ruled out of order.
What we are setting out to do here with this Bill is to try to help the Minister to improve it. I have been rather surprised and concerned by the attitude of the Government and the Opposition to the suggestion by Deputy Boland that a committee should be permitted to consider this Bill. The Minister rejected this on the Second Stage on the plea that it would be impossible to arrive at an adequate consensus. His attitude was that there were different opinions in committees and that there could not be a consensus. This is a Committee and this is the purpose of the Committee Stage. I hope the Minister has not got a completely closed attitude to the cases we will be putting forward on the different amendments and that if we put forward a rational case he will have an open mind about it. I accept the principle of this excellent part of our parliamentary procedure, the Committee Stage of a Bill. I hope that if the Minister is convinced  by a point put forward he will accept it.
With regard to the Opposition, I have been surprised that they have not accepted this part of the procedure as being a committee in effect where they can put forward, if they want to, different points to the Minister. If they make a satisfactory case which the Minister can accept then this in effect is a continuing committee. The only way that can be done is by putting down various amendments. Both sides of the House seem to have evaded the opportunity provided by this Committee Stage. I have put down several amendments to the Bill to see if some changes can be made to improve it.
I put down this amendment for a number of reasons, the obvious one being that a family planning service should provide a service which is safe, efficient and easy to perform and, in the words of the Supreme Court, easily acceptable. There must be multiple choice because one is dealing with various kinds of men and women who will come to the clinic for advice and help with regard to family planning or contraceptive techniques. I put down the proposal of voluntary sterilisation because it is not in the Bill and it does not appear likely to become part of the Minister's proposals for a family planning scheme.
There are two approaches to this idea of sterilisation. On the female side there is the tubal ligation and on the man's side there is vasectomy. Both of those are minor procedures which give complete safety as far as contraceptives are concerned. The Minister might like to tell us why those proposals are absent from the Bill. Those procedures are widely used elsewhere.
The question of contraception is a very important one for women and its efficiency is a most important consideration they must have in their minds. Pregnancy for some women can be very dangerous. In women over 35 it can cause maternal death and can lead to danger to the infant. The infant mortality rate rises dramatically if there is a failure of the method used. High blood pressure, blood clots and heart disease in some cases make it a matter of life and  death for the woman to have a method of contraception which is absolutely safe and efficient.
It has been estimated that under half of all fertile women try not to conceive. When they take a contraceptive they take it on the assumption they will not conceive. The method, therefore, which the Minister should offer to them in his family planning clinics is the safest method. Why is this simple, safe and efficient method not included in the Bill? In the USA in 1975 7,900,000 men and women used either sterilisation or vasectomy and there were 7,100,000 on the pill. It is nearly universally used in the USA, in many west European countries and in the North of Ireland. It is estimated that eventually over one-quarter of all couples with two or three children will be sterilised by the time the wife is 35 years old. This is taken from an article by Dr. Margaret Bohan in The Lancet. In the USA one-third of all couples are sterilised as a method of birth control, second only to the pill. Ninety per cent who are sterilised are content with their infertility.
I concede that this is a procedure which has to be entered into with some care, associated with responsible medical advice and counsel. In Britain the health authority have not enough money to carry out this procedure on all the people who need or ask for it. The Family Planning Association of Britain estimate that there will be 100,000 vasectomies in Britain in this coming year and that 40,000 women are likely to be sterilised. Perhaps one should advert to the fact that this form of contraception is not considered acceptable by the Catholic hierarchy. Is this the reason why this safe, widely used, efficient, simple procedure is not included in this Bill?
Mr. Haughey: I am opposing this amendment. In this Bill our whole approach to the problem is framed along certain lines. This approach involves the provision of a family planning service which includes only the advice, instruction, information and consultation. The supply of contraceptives or any other form of operative procedure, is not relevant to the definition of a family planning  service for the purposes of this Bill. To accept this amendment would involve a complete change in the approach of the Bill to the problem. Therefore I cannot accept the amendment.
Mr. Haughey: That is a separate question. This legislation deals with one particular matter. It gives expression to the approach which I have decided upon in relation to this problem of family planning and contraceptives. The question Deputy O'Connell asked is not relevant to the provision of this Bill.
Dr. Browne: Does the Minister imply that he considers there can be an efficient family planning service which cannot give advice to somebody who is looking for it and tell them what they require, even that it cannot be supplied? It would be the oddest family planning service conceivable, as somebody said, a pub without any beer, which did not have any devices. Is the Minister suggesting that the inclusion of this kind of service is being ruled out?
Mr. Haughey: The approach of this Bill is fairly simple and straightforward. It provides on the one hand for family planning services which consist of information, advice, consultation and education and on the other hand, provides certain procedures for the supply of contraceptives. The Deputy may not agree with that approach but the whole Bill is constructed on that principle. The “family planning service” for the purposes of the definition section is restricted to advice, consultation, education and information. Separate procedures for the supply of contraceptives are provided for in the Bill. If the Deputy does not accept that approach he is entitled to reject it but I cannot depart from it without completely changing the whole structure of the Bill and my approach to this matter.
Dr. O'Connell: It seems rather strange that the Minister is providing a  Bill for family planning in Ireland but if a person wants to opt for a medical, acceptable, ethical form of family planning, such as tubal ligation or vasectomy, it is not provided for in the Bill. This creates certain serious problems for the clinics which up to now have been providing such a service. They may go out of business and hospitals may not be permitted to provide these services. The Minister has not answered my question satisfactorily. We are talking about a family planning service when we ought to be talking about established and acceptable methods of family planning, otherwise we can stop wasting the time of the House.
The Minister does not seem to be aware of the fact that vasectomy and tubal ligation are medically acceptable and ethically normal procedures. They are barrier methods of preventing conception. Their omission from the Bill leaves the big question that hospitals may be forbidden to provide these services, where people opt for them. A person may want, or may be compelled, to seek contraceptive methods. He or she may not be trusted to abide by the normal methods and he or she, may know of this particular form but may be prevented from availing of it because the Minister has made no provision for it in the Bill. Are we deciding that this will be forbidden in our hospitals? Can a patient go to a hospital and opt for this method? That is the big question mark that hangs over the whole question of family planning. If you talk about family planning you have to talk about measures which are medically and aesthetically acceptable and which are not in contravention of any normal standards. Can the Minister answer this, not saying that it is not relevant to the Bill? It poses serious problems now by virtue of the fact that the Minister does not see it as relevant to the provisions of this Bill.
Mr. Haughey: The simple answer is that I do not accept that all methods of family planning which some people regard as perfectly valid are covered in this Bill. I instance as a clear illustration of my approach—I do not accept all forms of family planning or what in  some people's minds are regarded as legitimate family planning—the fact that this Bill sets its face firmly against abortion and abortifacients. Some people regard abortion and abortifacients as methods available to them of family planning, but this Bill clearly and categorically sets its face against abortion and abortifacients. Therefore, Deputies can surely deduce from that the fact that this Bill authorises and purports to authorise only family planning methods which are within the compass of the Bill as put forward by me.
Dr. O'Connell: The Minister raises a very serious problem. He has tried to equate simple vasectomy or tubal ligation with abortion or abortifacients. This is a simple operative procedure that prevents conception in the same way as do the simple mechanical devices which the Minister is providing under this Bill. This is another mechanical device. It is a normal surgical procedure that has not been considered ethically wrong. According to tenets of the different Churches it is not wrong. It is not anything to destroy life. It is important for us to realise this. To try to say, in however subtle a form, that vasectomy or tubal ligation could be equated with abortion or abortifacients is a misrepresentation of facts. You can no more equate them with the menopause, gall bladder disease or any other aspect of life. It is too ludicrous for words. This is a simple operative procedure which prevents conception. The Minister must be aware of its existence. It is practised world wide. If a person opts for it there is no provision for it. It is not a case of saying “all forms”. We must condemn abortifacients. There is no question of abortifacients here. There are no drugs employed here to produce abortion, no methods, devices or instruments used to produce abortion. This is a simple method of preventing conception in the same way as the condoms which are being provided under this Bill.
The Minister failed to answer this and Deputy Browne very rightly points to this omission. The onus is on the Minister to tell us whether, if it is  precluded under this Bill, it is precluded from being applied in hospitals in our country as a result of this Bill.
Mr. Boland: I have very mixed feelings about this amendment. I am not sure why Deputy Browne decided in tabling the amendment to delete paragraph (c) of the definition. It would better have achieved its objective if this phrase were to be added as an expansion of the rather inadequate definition of family planning service. What is really wrong here is that the Minister, as was pointed out on Second Stage, has not defined what family planning service is. If there had been a better attempt at a definition of family planning service possibly this amendment and other discussions on the section would be unnecessary. For the Minister to define family planning service as being a service for information, and so forth, on family planning does seem to be rather opening up the debate. Either voluntary tubal ligation or voluntary vasectomy could well be interpreted as being included in “information, instruction, advice and consultation in relation to family planning” if there had been a definition of family planning.
The whole difficulty here is that the definition section to a large extent comprises a non-definition section. Even on the inadequate way in which the definition section is set out, I would have thought that information, instruction or advice in relation to vasectomy or tubal ligation might have been interpreted as being already provided for. As a result of discussion on this amendment I would not like the impression to go abroad, or for it to be interpreted if this unhappy Bill is to be passed, that advice, information, instruction or whatever in relation to vasectomy could not be given because it was not included specifically in the Bill. I would be anxious that the Minister, in whatever line he takes in contributing further on this amendment, would make it clear as to whether it could be possible for information, advice or instruction in relation to these matters to be given under the Bill as it stands or whether, because these matters have not been provided for specifically in the definition section, they cannot be  provided for in effect if the Bill becomes law.
Mr. Haughey: All I can do is make clear what I intend. Whether Deputies agree with that is their own business. Neither tubal ligation nor vasectomy is included in family planning services as provided for in this Bill. Let us be clear that they are not provided for in family planning services which I envisage as being provided for in this Bill. Whether they are morally, medically or ethically acceptable is a different question which is not relevant to this legislation at all. If Deputies want to raise it at another time in another way they are perfectly free to do so. I am providing in this legislation for certain aspects and types of family planning which do not include these two operations. I am not necessarily comparing them with abortion or abortifacients any more than this Bill includes family planning, abortion or abortifacients.
Dr. Browne: A very important principle involved here is the responsibility of the Minister in a society such as ours. The Minister evades Deputy O'Connell's questions. The Minister is the Minister for Health and he is purporting to give to women and men—mainly women—a family planning service which will include all methods of acceptable family planning. That must be assumed from the Minister's own letter to the Irish Medical Association in which he made the point that when he asked them to take part in the scheme his case was that he would try to provide a comprehensive family planning service with advice on all acceptable forms of family planning. As Minister for Health he is backed by a talented hinterland of advice and expert knowledge on these things in his Department. All of us who live on this side of his civil service and Department, the consumers of his service, medical officers, doctors in practice in hospitals and clinics all over the country, must look to the Minister for an authoritative decision on this very important issue. The issue is a safe and easy form of family planning.
I have put forward this suggestion of sterilisation and it has not been controverted by the Minister. I hope he will  not repeat that rather ugly attempt to twist what we are saying into the very emotive issue of abortion or non-abortion. It does not arise at all under this Bill and should not be introduced; it is quite a separate issue which I am prepared to debate at any time with the Minister. I hope the Minister will not refer to it again because none of us is advocating this in any section or amendment put down. Therefore, in omitting sterilisation the Minister is providing a substandard service. He is perfectly within his rights to do this but it is our job to make it clear to the consumer—to men and women who avail of his family planning services—that it is a second-class service, that it is a substandard family planning service, that it does not include the most efficient, safest and simplest procedure of all probably because even the pill has its dangers. The Minister is vague about it. Perhaps he would take his courage in his hands and tell us—he mentioned the word “ethical”—has he ethical objections to the idea of sterilisation, a personal objection to the idea of sterilisation? My idea of a Minister for Health is that he has no right to use his personal prejudices. I may say I was faced with this problem myself in another way in that Department. I do not think we have a right to allow our personal prejudices to interfere with providing the service which we are privileged to provide as members of Governments.
Dr. Browne: Because the Minister used the word “ethical” in reply to my statement as if it was a consideration. Archbishop Ryan recently sent a letter around objecting to this idea of sterilisation as well as other procedures which he considered contrary to Catholic social or moral teaching. I want to make it clear that I have no objection to that  Archbishop, any other Archbishop, or Rabbi, or any member of any Church, making it quite clear what the members of his Church may or may not do, or should or should not do; that is their job. We all know that family planning has been a very controversial issue for many years now. In this situation I believe it is incumbent on the Minister to provide the most efficient service for all the members of our society irrespective of their religion, irrespective of the ethical or moral views of any particular religion in that society. This is the basic principle on which possibly the Minister and I differ—that the citizen must have the right to make his or her own choice. In my view the Minister, in providing family planning services, has no right to make a decision which limits choice whether it is a choice with which, for instance, I do not agree, natural family planning, because I think it is inefficient, but I think it should be there.
Equally it seems to me the Minister has the responsibility to make this form of contraception available to citizens who want it. Remember there is a plurality of religions in our society. There are Churches which agree with this and other kinds of procedures with which we will be dealing later, the question of sterilisation. These people have a right to this service. Therefore the principle involved is whether the Minister is going to make laws which presuppose the existence of a pluralist society in the Twenty-six Counties, in the Thirty-two Counties, or whether he is going to restrict it for “ethical” reasons—a nice word, a euphemism—because of the attitude of the majority Church being against the provision of sterilisation. In defence of the majority Church, the Catholic Church, the Hierarchy—and this is an unusual role for me—I should like to point out that while they have made their point clear on these various forms of contraception—and indeed to contraception in any form except what they call the natural form, they are opposed—they add this very important, in our history, changed proviso that the Minister and the Government are perfectly within their rights to bring in any legislation they wish, that this Bill, its morality, its ethical right or wrong, is  judged by each citizen according to his or her own ethical or moral standards, or religious beliefs and he or she is free to take an independent decision. Of course, this is where this recent case, the Gibbons case, is so absurd and unreal because none of the provisions of this law, whatever they are, can be binding on anybody who is morally opposed to them. What the Minister is providing is a service which people who want it and who feel that they can in conscience accept, will seek. That is all. Nothing is going to be imposed on anybody. Therefore it is completely fraudulent to claim that it is being opposed on moral grounds.
The Minister must consider that principle. We must establish here, and not only from the point of view of mothers —I will give maternity mortality rates later—an efficient service. The 1973 maternity mortality rate was eight per 100,000 in the younger age group; in the 35 to 40 age group it was 30 per 100,000 and, in the 40 to 45 age group 120 per 100,000, an appalling increase of 35 plus. Therefore, the efficiency of the service must be, and should be paramount. It astonishes me that a Minister for Health would dismiss this in a superficial way without any attempt to make an argument against it except with one word, “ethical”. It astonishes me that he should dismiss a universally used practice while purporting to give to the consumer in our society who needs contraceptives this safe service.
The Minister is hiding behind the Catholic Hierarchy. He is free; they have liberated him and do not take the same attitude that they took in the past. They now say that the Government are free to bring in any legislation they want and, in those circumstances, I fail to see why the Minister will not introduce this important service. There is also the consideration of the rights of the minorities. They are being denied this service. Why are our religious minorities denied such a service which is available in all hospitals in Northern Ireland, to Catholics and Protestants? Why can we not adopt that practice? The Minister would have been very angry if a Northern Minister had told the people that they must have a certain scheme because it coincided with  his religious beliefs. I am sure the Minister is concerned that on this issue we should be seen to legislate for the existence of a plurality of religions in our society.
The Supreme Court made it clear that Mrs. McGee had a right to contraceptives because pregnancy could endanger the security and happiness of her marriage, could imperil her health, hazard her life and subject her family to distress and disruption. All those features are operative and the Minister is avoiding providing a service which would ensure the protection of a woman's health and happiness and the health and happiness of her children. He has not given any grounds or valid reasons for his refusal to consider seriously the introduction of such a service. He is denying this service to people who medically see no objection to it. The Minister said the Bill was guided by certain principles and I suppose that is what he meant when he described it as an Irish solution to an Irish problem; a Roman Catholic solution to an Irish problem.
Dr. Browne: I propose to press my amendment as far as I can because the decision by the Minister to refuse to introduce a family planning method which is the safest, most efficient and probably most commonly used in advanced countries is inexplicable in rational terms. The only conclusion I can arrive at is that the Minister is afraid to introduce it because he could not carry it with his party on strictly sectarian religious grounds. It supports the contention I have had all my life that Irish Republicanism is a very sectarian dogma and has nothing whatever to do with the pluralism, the secularism of Wolfe Tone's Republicanism.
Mr. Haughey: There is a much simpler explanation than that. I must go  back to the first principles on which this legislation is based. As the Deputy pointed out, the decision of the Supreme Court in the McGee case was a point of departure in our society. The Supreme Court on that occasion struck down as unconstitutional a provision which totally prevented the availability of artificial contraceptives here. That judgement derived from the family provisions of the Constitution and it is important to remember that. The Supreme Court found the raison d'être of their decision in the provisions of the Constitution which protect and cherish the family but that decision, as a side effect, created a situation where artificial contraceptives would be absolutely freely available here. That invited the Legislature to do something about the situation, to legislate afresh now that the old provision had been struck down and rendered unconstitutional. The Legislature had a duty to provide for this new situation.
I gave this problem long and anxious consideration to try to decide what form the legislation should take. As a result of widespread and patient discussions and long consideration I came forward with this solution which is fairly straightforward. Whether one agrees with it or not the approach should be understood by everybody. The legislation purports to deal with the way artificial contraceptives should be available in our community. The Supreme Court has stated that they must be available and that the Legislature must decide under what terms and conditions they should be available. That is what the Bill is about. In coming to the matter of controlling and limiting the availability of articial contraceptives I decided that the right thing to do was to relate their availability to family planning. If one accepts that principle the rest of the Bill follows logically. If one does not accept it that is one's own business and any Deputy is perfectly entitled to reject it.
Faced with this situation and having regard to the many conflicting opinions on the subject, I thought that the solution that would be most generally acceptable to sensible people and what would be also the best solution from the point of view of our health and maternity services was to relate the availability of artifical  contraceptives to genuine family planning purposes. This Bill is based entirely on that simple principle. Therefore, what I am purporting to do in this legislation is to deal with the question of the availability of artificial contraceptives for genuine family planning purposes. I am not concerned with any other matter but there are a variety of other matters that could be dealt with in this Bill in addition to that being put forward by Deputy Browne. The Bill does not deal with the many different types of gynaecological or obstetrical operations which are all relevant to the maternity services and to the wonderful event of birth. There are all sorts of aspects of gynaecology and obstetrics which could be dealt with in a piece of health legislation but I submit that such matters are not relevant to the issue with which the Bill deals. Its objective is the regulation, control and limiting of supplies of artificial contraceptives to family planning purposes. It follows from that that the provisions of the Bill should deal with the type of family planning services that are envisaged and these consist entirely of information, advice, consultation and education, not with the matter of the supplying of any device nor of the performing of any operation. The family planning services envisaged are defined in the Bill in terms that are totally informational.
Therefore, the question of whether voluntary tubal ligation or voluntary vasectomy are suitable or legitimate forms of family planning is not relevant to this legislation. It does not come within the compass of my approach to the problem. I refute the suggestion by Deputy Browne that I endeavoured to confuse the argument by referring to abortifacients in the context of these two types of operations. I am not guilty of that and I am not competent to know whether there is any relationship between the two or whether any theologian would relate one to the other. Neither am I concerned with that matter but I did not attempt to confuse the issue as suggested by Deputy Browne. I merely mentioned abortifacients to illustrate  that in this legislation I am not necessarily purporting to deal with all forms of family planning. I am dealing only with those forms of family planning referred to in the Bill.
Deputy Browne is entitled legitimately to say that the family planning services envisaged in this Bill are inadequate. If he says that, I must accept his opinion but my purpose in this legislation is limited. For the first time in this country I am endeavouring to legislate for this unhappy, controversial, long-drawn out and interminable situation. I am trying to bring finally, some form of acceptable legislation into being to deal with that situation. I should hope that Deputies would accept that I have gone to much trouble to ascertain as broad as possible a spectrum of views, to find out what the majority of people would accept and what would be in keeping with their view of what is reasonable. I am prepared on Committee Stage to continue that process. This problem has been before me for some time but I would not have any objection to spending several more weeks on it on Committee Stage, in teasing the matter out further, but I am endeavouring to explain as coherently as possible what is my approach and the reasons for it. Deputies are perfectly entitled to say that they do not agree with my approach or that they reject the reasons for it but the principles I have outlined are the ones on which the Bill is based. I cannot accept Deputy Browne's amendment because it is not relevant to the purposes of the Bill. Nobody is being denied access to these types of operations as a result of this Bill. They are not referred to in the Bill which is concerned mainly with setting out the manner in which artificial contraceptives will be available in future to the general public. There is a situation that must be dealt with. I am satisfied that the overwhelming majority of our people do not wish to have a situation of total uncontrolled availability of contraceptives. That is my assessment from my soundings, from my discussions and consultations, from  the advice I have had and from my own assessment of the situation. I know also that there are some people—and this view has been expressed by Deputy Kelly—who believe that there should be completely uncontrolled availability of artificial contraceptives but I am convinced that there is a considerable majority of people in favour of making artificial contraceptives available to married persons. That is solely what we are legislating for in this Bill.
Mr. Haughey: I hope I have not said that. What I intended to say was that Deputy Browne is entitled to criticise the Bill on the basis that the family planning services envisaged are inadequate. But I do not accept that view. I consider the family planning services envisaged in the Bill to be adequate for our circumstances.
Dr. Browne: The record will probably show that the Minister said that I have a case for saying that the Bill is inadequate. However, we need not quarrel about that. Clearly with the absence from the family planning service of something which is universally used, and most efficient and safe, a simple operation, it must be considered to be an inadequate service and, therefore, as I claimed earlier, a second-class service.
The Minister referred to the McGee case and suggested that the McGee Supreme Court decision was taken in the context of the family and the Constitution. It is worth remembering that the family is not defined in the Constitution. What exactly the family is, is something we could talk about. What is even more important is that Justice Fitzgerald went on in his dissenting decision to point out that whatever advantages  Mrs. McGee won, whatever rights she won in the court action, were rights to be made available to every citizen under the Constitution. We will be dealing with this later on, but it cannot be restricted to families. Every citizen has these rights which I mentioned here earlier: her right to the protection of her health, her happiness, her life and the happiness and welfare of her family. Every citizen has that right under the Constitution as a result of the McGee decision. It is not simply the family.
I think the Minister has conceded that this family planning scheme will have grave limitations, major limitations, and therefore will be a substandard service. In a letter to the Irish Medical Association the Minister concluded by repeating his conviction that a wide-ranging and flexible family planning service which should form part of the health service should be under the control and guidance of the medical profession. He said the service should be wide-ranging and flexible. Now we find it is very limited and constricted. The Minister repeated what he said earlier on Second Stage, that the overwhelming majority of the people do not want a wide, extensive family planning service.
I have to ask him again why he makes this statement, because it could only apply to the Twenty-six Counties. Does he wish it to apply to the Twenty-six Counties? Is he ignoring the fact that there are one million Protestants in the North of Ireland who would not agree with that at all and who, in fact, enjoy a very wide-ranging family planning service including sterilisation, as proposed by me here, and all the other things, condoms, spermicides, IUD, diaphragms, and so on. Are we to restrict ourselves in considering laws of this kind where freedom of conscience is so vitally concerned? Is it not a very dangerous doctrine for the Minister to incorporate into our laws that the attitudes of a majority, that is, a Catholic majority in Twenty-six Counties, must determine the kind of laws we would have presumably in Thirty-two Counties where there is a significant Protestant minority rather than the tiny one we are choosing to ignore in this legislation?
An Leas-Cheann Comhairle: The Chair must intervene. I have given Deputy Dr. Browne some latitude because the Minister dealt with some of the points he is dealing with. We are not discussing the Bill as a whole. We are discussing one small amendment to the Bill and we have to keep to that amendment. We could spend all day having a Second Stage debate on this amendment but the Chair cannot allow that. We cannot have repetition.
Dr. Browne: That is what I was dealing with. The Leas-Cheann Comhairle must appreciate that I am trying to persuade the Minister to introduce probably the most important provision of all into a family planning service, which he has omitted. I am still attempting to make my case and to refute the points put forward by the Minister which I am perfectly within my rights to do.
I have put down a number of amendments and I have made it clear why I have done that. The parliamentary process imposes on us a responsibility to attempt to make our case for changing legislation brought in by the Government. That is what the whole committee procedure is about. Obviously I will not press some of the amendments, but this amendment—and I will press it first because it is extremely important—it is an enormous gap, or loss, or defect in the family planning service—and secondly because of what I believe to be its implications in the flexion of the Minister's attitude to the whole idea of pluralism in our very unhappy society.
Mr. Boland: But of course. I will not follow the Minister's example in going outside the terms of the amendment. In the light of his earlier statement, can the Minister say whether consequently the services which might be provided by a person other than a health board under section 3 (3) would be denied to another person by the Minister under the regulations which he proposes to set up if he believed he would provide information, consultation and advice on vasectomy?
Mr. Boland: Can the Minister say whether he would refuse a licence to a family planning clinic if they were providing information or advice on methods of vasectomy? This is germane to the whole argument. The Minister has not answered. Does he propose to license——
Mr. Boland: He proposes under section 3 to license certain bodies to give information in relation to the family planning service. Until today he had proposed to make it impossible for them to actually provide contraceptives and, as debate goes on, I think it will be seen that a very devious mechanism is now to be employed which might provide a way around that in certain circumstances. I am asking, if the Minister believed those family planning clinics were providing information in relation to voluntary tubal ligation or voluntary vasectomy, which are the subject matter of the amendment, whether he would feel that they were not fit persons to have a licence issued to them?
Mr. Haughey: I want to make it clear at this stage that I propose to deal with this difficult and complicated measure amendment by amendment, and section by section. I have explained to Deputy Dr. Browne as clearly as I can why I cannot accept his amendment.
Mr. Boland: I want to make another point. Eventually the Minister admitted today what this Bill really is, an attempt to amend the law, an attempt to mend the hand of the Oireachtas in relation to the law on contraception arising from the McGee Supreme Court judgment. That is absolutely at variance with every statement he and his colleagues in Government made prior to the introduction of this Bill when they insisted that this Bill would be a comprehensive family planning Bill.
I should like to remind the Minister and the House that some weeks before this Bill was published, when I asked him on the Order of Business when the Bill to amend the law on contraception would be published, the Tánaiste was at pains to point out that the Government had no proposal to introduce such a measure, but that they would be introducing a comprehensive family planning Bill. On this amendment the Minister admitted today that the Bill is not that at all. According to the Minister's phrase, the Bill attempts to do no more and no less than to allow to married couples the right to contraceptives as a result of the McGee Supreme Court judgment. As the debate goes on, it will be made quite clear that the Bill does a fair bit more and a fair bit less than that. The way in which the Minister presented his concept of the Bill and the effect of the Bill is unfair and misleading. It has been unhelpful to the debate and does not augur well for the rest of the Committee Stage.
Mr. Boland: I made several points on Second Stage which are worth repeating. The definition of “family planning service” is virtually non-definite and to get any real idea of what is meant by the definition purported to be given in the definition section one must read on further in an effort to get a definition of the definition section. It could only be felt that whoever introduced this definition section was either extraordinarily devious or extraordinarily inept, and I conceded on Second Stage that the Minister was not extraordinarily inept. I do not believe anyone could have felt that this was a genuine section giving definitions helpful in the rest of the Bill. One has to read the Bill in an effort to find out what the definition section is trying to say.
In speaking on Deputy Browne's amendment the Minister suggested that this Bill was doing no more and no less than making contraceptives available to married couples as a result of the Supreme Court decision. In many ways it is doing more and in many ways it is doing less than that. It is quite clear in section 5 (1) that the Bill is in some respects dealing with individuals rather than married couples. Section 5 (1) states:
An Leas-Cheann Comhairle: This is a definition section dealing with definitions and nothing else. We cannot discuss the whole Bill on a definition section. If the Deputy wishes to deal with definitions he is quite entitled to do so.
Mr. Boland: If the Chair would care to listen to what I am now saying he would see I am pointing out that there is no definition of “family planning service” and that one is obliged to go further into the Bill in an effort to get definitions of the definition section. I am criticising the definition section and I am entitled to do that.
Mr. Boland: I am pointing out that there is no definition of “family planning services” and that the Minister stated earlier, when dealing with an amendment, that the Bill seeks to do no more and no less than make contraceptives available to married people. I am making an effort to find out what a “family planning service” is because the Minister has chosen not to define it in the definition section. I am drawing the attention of the House to section 5 (1) (a) which refers specifically to persons rather than married persons in regard to the importation of contraceptives as part of personal luggage. There is no mention whatsoever of married persons in section 5 (1) (a), although the Minister claimed a few moments ago that the Bill relates solely to married people. When we get to section 5 (1) (a) we will have some discussion as to how it is decided what  quantity of contraceptives are solely for a person's own use.
Mr. Boland: I cannot understand how a “family planning service” could be defined as meaning a service to provide information on family planning. Surely there should be a definition of “family planning”, what it is about, what it is related to and what it is intended that the health board family planning service and other family planning services could advise about. There is no definition of “family planning service” except that it means (a) family planning, (b) contraception, (c) contraceptives. Surely this is an inadequate part of the definition section.
More importantly, I and my party are particularly concerned that there has not been an attempt made in the definition section to give a definition of “abortifacient”. To explain what I mean by this it would be necessary for me to go further into the Bill and refer to section 10, which explains that nothing in the Bill shall be construed as authorising the procuring of abortion and the sale, importation into the State, manufacture, advertising and display of abortifacients. But there is no definition of “abortifacient” in the definition section. All those who will be involved in the attempt to operate this measure if it becomes law—doctors, health board personnel, chemists, wholesale chemists, importers and the individual—will find themselves in a position where they may be deemed to be acting outside the law because of  their use or importation or recommendation of something which would afterwards be deemed as abortifacient in effect.
On Second Stage I said I did not propose to embarrass the Minister or the House by quoting the speech made in 1974 by Deputy O'Malley, in which he went at great lengths into what might or might not be abortifacient and in which he endeavoured through ridicule to suggest that the Bill then before the House was inadequate because of its poor definition of “abortifacient”. I accept that the definition in the 1974 Bill was not complete by any means, but at least an attempt was made in the definition section to define “abortifacient”. It stated that “abortifacient” means any appliance, instrument, drug, preparation or thing designed, prepared or intended to terminate pregnancy which has resulted from sexual intercourse between human beings.
That having been stated in the definition section, section 7 of the Control of Importation, Sale and Manufacture of Contraceptives Bill, 1974, allowed the Minister to appoint a committee to advise him on whether or not a particular appliance, instrument, drug, preparation or thing—the same wording as used in the definition section—is an abortifacient, whether or not it is also a contraceptive. The committee would have consisted of not more than five persons and would have included people with medical qualifications. The most important part of that section was subsection (3), which stated that a licence would not be granted in respect of a contraceptive which was in the opinion of the committee also an abortifacient.
Clearly anyone who would have been involved in the operation of the 1974 Bill, had it become law, would have known exactly where he stood in relation to various contraceptive devices about which there was controversy as to whether they were abortifacient in their effect, notably the IUD. In 1974 there were low oestrogen pills which Deputy O'Malley claimed were abortifacient. Everybody involved in the operation of the Bill would have known whether or not in the eyes of the law such items  were abortifacient. There would be the decision of this expert committee, composed in part of medical representatives, who would advise the Minister and whose advice was to be taken and put into law. Doctors, chemists, importers and individuals would all have known whether they were acting within or without the law.
For some extraordinary reason there has been no attempt whatsoever to define “abortifacient” in section 1 or anywhere else in the Bill to provide that the Minister would make clear what is an abortifacient to the general public and the specialised professions involved in the operation of the Bill. The failure to define “family planning” and the entire omission of a definition of “abortifacient” make the definition section most unusual and entirely unacceptable.
Mr. Kelly: Before I offer a few comments about the definition section may I refer very briefly, with the indulgence of the Chair, to something which the Minister said half an hour ago or so? I believe the Minister is right in thinking that there is not a majority of opinion in the country—perhaps not even 50 per cent—that would share the point of view that I expressed on the last occasion when this matter was debated. I accept that, but I think what we are trying to do here by going through the motions of debating this Bill on Committee Stage would not have been necessary if the Minister had taken the line which Deputy Boland suggested of trying to achieve consensus by means of an all-party committee. I do not mean 100 per cent consensus; the Minister will never get that. The Minister will never get Deputy Flanagan and myself or Deputy Clinton and Deputy Dr. Browne to agree on the core of this topic. One could not get that in any parliament that did not consist of robots. But he would get consensus of a majority just as there would have been in 1974 had the Fianna Fáil Party, out of a mean and cheap desire merely to embarrass the Government, not laid on a Whip against the Bill which Deputy Cooney had introduced at that time. Had there then been a free vote, as the Minister knows, possibly—as he was good enough to imply  on the last occasion—some of the Deputies on my side might have felt freer not to support the Government if they had misgivings about the matter, as I suppose some of them had. Conversely, many people in the Minister's party who, not to put too fine a point on it, do not give a damn about this subject, would have found it possible without doing violence to their consciences to support the sort of Bill the then Minister for Justice was promoting.
I do not claim and never did claim that my point of view is a majority one but, merely to single out, on the one hand, my point of view and, on the other hand, Deputy Flanagan's point of view, and say that no agreement is possible in conditions like that is missing the point Deputy Boland made, namely, that if you took this matter out of the political arena—I do not believe in taking things out of the political arena if you can make progress with them in the arena but this is a case where that does not seem possible—and confided it to an all-party committee, we would have got a genuine majority consensus and possibly that consensus would have been about a Bill not too far removed from the one the Minister now has before the House——
Mr. Kelly: You have, Sir. And it might not have been too far distant from what the previous Minister for Justice wanted. At least there would not have been the silly scrapping, sneering and jeering which have accompanied all the efforts to change the law on the legislative side and which will continue to dog us until we are let off the hook, as I believe we will be sooner or later by the Supreme Court giving a decision that goes even further than in the McGee case.
As regards the definition section I could not improve on what Deputy Boland has said in regard to the absence of a definition of family planning as such. I want to draw the attention of the  Minister and the House to a few more features in regard to the definitions in this part of the section. The word “family” is not defined in the Bill. I shall not niggle about that because most people know for most purposes what a family is. It is not that clear in every context. There is a sort of extended meaning in some legal contexts, for example, in the Rent Restrictions Act, in which it has been held to encompass an adult sister and brother as being part of the same family even though not a family in the nuclear sense to which this Bill is obviously intended to relate. The word is not defined in the Bill nor in the Constitution but I accept, without making the matter ridiculous, that it must mean something like the ordinary nuclear family, parents and children. The couple of decisions that there have been in regard to the mention of the word “family” in the Constitution have pointed out that there is no definition and have said that for the purpose of the cases before the court they assume it means parents and children. Very well —family means parents and children.
What then does family planning mean? It is too late to plan the parents; they are not the objects of planning. Presumably, it is also too late to plan children already in existence. So, by a tortuous and I should have thought unnecessary process with a Government that was not afraid to say what it meant, we are driven to conclude that family planning means planning for the arrival or non-arrival of future children in a family. I suppose that is what family planning is all about. I cannot see why the Minister's Department should not have said so in so many words or much fewer words. I now want to know what is the difference between family planning and contraception which are listed here as separate items. Notice that while “contraceptive” is defined in terms taken, I think, from the Criminal Law Amendment Act, the word “contraception” is not defined. There is no rule of law which obliges us—although I admit it is likely enough—to interpret one expression from another one of a similar root. It could be said that contraception, undefined, is any activity which tends to  divert natural co-habitation from its normal consequences or, if you like, from the risk of its normal consequences. Looked at on that level contraception and family planning do not seem to be any different because family planning, if it means anything at all, is simply a pretty euphemism, one which can be used at the family table, for contraception.
I am not trying to pretend that I do not know that contraception has in ordinary usage a more specialised meaning. I cannot see why that meaning should not be spelled out here. In case it may be thought that I am trying to confuse these two concepts unnecessarily, in case it should be said that I am only making the kind of point which was made here in rich abundance in 1974 during the last Family Planning Bill by members of the Fianna Fáil Party, Deputy Haughey among them, if I am not mistaken——
Mr. Kelly: Did the Minister not speak on it? I am sorry. Certainly Deputy O'Malley who, I think, was then spokesman on Justice and several other Fianna Fáil Deputies joyfully picked holes in the text of the Bill of the then Minister for Justice. If we are supposed to assume, although the matter is quite unnecessarily left undefined, that it means family planning by abstention, abstention inspired, if you like, by some method based on computation of the wife's cycle or anything of that kind, then it does not appear all that clear because I see that in section 3 (2) we have the following series of words: “family planning that does not involve the use of contraceptives”. Those words clearly imply that for the draftsman— for whom the Minister must take responsibility—there is such a thing as family planning which does include the use of contraceptives.
That form of hoping that these concepts will get by undefined, unseparated with no clear direction being given as to what they mean or are supposed to mean for legal purposes is all of a piece. I do not suspect that there is any special purpose in leaving these things undefined  and unseparated: to me they are all of a piece and signal in one direction only, that there is not the remotest intention ever to enforce this Bill if and when it becomes law. No trouble is being taken about these definitions because nobody ever expects to have to argue about them before a court—and that is what definitions are all about. Nobody on the Government side ever expects to have to instruct counsel to place an argument before a court in regard to the meaning of any of these elements.
If I am contradicted on that and told by the Minister that I am not doing this Bill full justice, that his Irish solution for an Irish problem is meant to be taken more seriously, I am tempted to reply that the peculiarly Irish nature of the solution lies in the fact that many people on the Minister's side will be content with the appearance of the law even though there is no reality. That is Irish enough and appeals to a certain stratum of Irish mentality abundantly represented in the Fianna Fáil Party—go through the motions and whether the reality follows in the wake of the motions we need not care; so long as we have a badge in our buttonholes and can speak a few perfunctory words, we shall be taken to have our hearts in the right place whatever the context refers to. I believe that is what is meant here. There is a certain sense in the Minister talking about an Irish solution to an Irish problem. The Irish solution is to appear to solve the problem. The reality is that it will remain exactly the same in a year's time as it has been for the last couple of years.
If I am told that I am not sufficiently serious about this, or that I have missed something in trying to distinguish between family planning and contraception, or that an ample definition of either of these phrases is not necessary, I would ask the further question, if I am told that there will be occasions when counsel for the Director of Public Prosecutions will actually be trying to enforce this law against people who will be purveying contraceptive devices, or whatever it is, otherwise than in accordance with the licensing arrangements which the Minister foresees: would the Minister explain what is bona fide family  planning? If family planning means inhibiting, by one means or another, the natural risk of the natural consequences of co-habiting, what is bona fide family planning?
There are a few parts of the law from which parallels can be drawn and I am not trying to make the thing any more ridiculous than it patently is. I think the Minister was Minister for Justice when the licensing law was changed in 1960 or thereabouts. Up to that time there had been a traffic in bona fides—that was a cynical term—but it was an Irish solution to an Irish problem in a big way. There was an appearance of there being a law in regard to bona fide travellers. The reality was exactly the opposite and so well recognised was the opposite quality to the reality that the bona fide name was actually cynically, but colloquially and without thinking, bestowed on the very establishments which had the benefit of this Irish solution.
The bona fides that I remember from my student days were Matt Smith's and the rest. These were establishments which were allowed to sell drink until midnight, whereas the public houses in the city had to close at 10 p.m., or 10.30 p.m., on the assumption that the people who were bursting out through the doors in their hundreds were bona fide travellers on their way to Kilternan, the Golden Ball, Enniskerry and points south who had just stopped off to slake their thirsts at Stepaside on the way out. Except for the dimension of drunk driving and dangerous driving that went with it, as people chased out from the Golden Mile of the inner city to the foothills of the Dublin mountains, which was a very serious and bad element, it was harmless enough. The point here was that these were supposed to be bona fide travellers, people on their way somewhere else who stopped off to slake their thirst in Matt Smith's or the Dead Man's or the Widow Langan's, or wherever it might be. Idiotic and disreputable though the law was—willing though I am to give the Minister credit for changing it—at least on the face of it, it was easy to see what was meant by bona fide travellers. What was meant was people on their way from somewhere else. What is a bona fide family planner? I take it that  what is meant there must be a reference to the mental disposition of the parents or prospective parents who resort to a clinic or medical advice in this connection. They could not be anything else. Natural family planning, by the way, is another expression not defined—we are not told what natural family planning is. I have a rough idea in my own mind what it is supposed to be; nobody will have to argue it in court, but, just for the record, it is not defined in this section.
If there is such a thing as bona fide family planning since the externalia—if I may use another Latin word to join bona fide—since the externals of the family planning operation are indistinguishable, one from the other, whatever the purpose, it is only, therefore, the internal operations which can tell you whether the thing is bona fide or not. I want to know is the Minister serious—and I know he is not serious—but is he willing to pretend he is serious in expecting a doctor to decide for himself whether people applying to him for the benefit of these services are applying to him bona fide for family planning purposes? As I say, if I thought the Bill was meant seriously I would be more excited about it but I know we are only going through a certain number of motions. Surely if it were to be taken seriously it would impose a hopeless burden on a doctor to expect him to say to a patient—I do not care whether the patient is a young wife just married or a mother of 16 children; I do not care what stage she is at in her maternal or potential maternal existence—“Well now, Mrs. O'Halloran”, or whatever her name is, “I have listened to your tale and, honestly, I do not think the family planning service you want from me is one you want bona fide” and if she says to him “What do you mean by that, Doctor?” can one see the doctor saying, “I think you are being selfish”. Are you really going to ask a doctor to say to people who come along for these services that they are being selfish, that they do not want these services, which have only one possible physiological effect, for bona fide reasons? What are the bona fide reasons that would entitle a doctor to exercise a discretion here? The subsection in section (4) clearly is intended  to confer some kind of discretion on a doctor. What is that discretion? How is he to exercise it? Can I have from the Minister an example of the kind of argument he would expect to find a doctor using if he were refusing to give a person these services on the grounds that their applications were not bona fide? Perhaps I missed something vital on this aspect and the Minister will have a chance of pointing it out. That is one aspect that I would be interested in if I thought the Bill was seriously intended to be passed into a serious law.
Now, in case the Minister thinks I am trying to make a hare of him or of the Bill, this is a small drafting point and I may be wrong about it, but if he is serious about the Bill he might ask his advisers to look at it. This refers to the word “sell” in the last part of the definition section. I think the word “sell”, in the context of the sale of goods, refers only to a transaction for money. I may not be right in that, as it only occurred to me since sitting down; had I thought about it earlier I should have looked it up. If I am right in thinking that the law on the sale of goods restricts the meaning of “sale” to transactions in return for money, it would appear that the Minister has left out of the Bill transactions for reward or for a consideration, but in which the consideration is something other than money. In other words, unless I am wrong in what I am saying about the Sale of Goods Law, it would leave completely uncovered by the Bill transactions of barter. By barter I am thinking of some commodity which is not money but which can easily be converted into money's worth, for example, postal orders or stamps and a fortiori any other kind of property which people recognise as having a value. If it is true that sale, in the legal sense, means exchanging goods for money and only that, then exchanging the goods which are in the Minister's mind in regard to this Bill for anything except money appears not to be covered by the Bill. I am not concerned to help the Minister out in trying to make the Bill workable. I would only be compounding the fraud—that is too strong a word—compounding  the farce which he is playing out in this House and to the nation. If he wants to bring some degree of verisimilitude into his efforts, he would want to look well at the definition section.
Mr. Haughey: My problem in regard to this Committee Stage debate is to refrain from being party political. I owe it to the House and to the public in general to try to continue discussing this Bill in a serious and mature way and not to be diverted into scoring party political points or to engage in partisan arguments across the House. Any impartial observer would agree that it is difficult for me to continue to do so. The Opposition have no real grounds for opposing this section or for speaking on it at any great length. The definition section is simply a parliamentary device to secure the purposes of the legislation. Normally, the definition section is a matter entirely for the parliamentary draftsman whose function it is to see that the statute is properly drawn and that it achieves the political purpose for which it is intended. That is all that was happening here. I have already explained at great length the purposes of the Bill, what it sets out to achieve, the principles on which it is based and the situation it is designed to bring about. Deputies may disagree with that, but what the Bill is seeking to do and how it is seeking to achieve its objectives are fairly clear. This definition section is nothing more or less than part of that process; it is simply a parliamentary device to procure that situation. I am satisfied that it does the job correctly.
The Opposition are not serious in their criticisms. They are just latching on to this section in a party debating way. I will certainly look into the definition of the word “sell” raised by Deputy Kelly. As the Deputy raised the question off the top of his head, I will reply in like manner that he is probably confusing “money” with a phrase used in financial legislation, “legal tender”. I will discipline myself and refrain from making party political points. I hope it will be accepted by reasonably minded people that I am endeavouring to be non-partisan and to procure legislation which will attract  the maximum possible degree of popular sensible support. Why can the Fine Gael Party not admit to me and to the House that they are fundamentally divided about this legislation?
Mr. Haughey: Even Deputy Kelly and Deputy Boland in their contributions are at odds with themselves. It is not just that Deputy Kelly disagrees fundamentally with Deputy Oliver J. Flanagan or Deputy Mark Clinton.
Mr. Haughey: Deputy Kelly says on the one hand that this is a piece of nonsense, that it not intended to enforce it, and that it is ridiculous. Yet he spent a great deal of time arguing about it. If it is nonsense why does he not simply oppose it and be done with it? Neither Deputy Kelly nor Deputy Boland can have it both ways. They are using this Bill as a reason for attacking the Government politically and at the same time they say it is not worth talking about. The criticisms genuinely made by Deputy Kelly of this Bill could have had equal validity in relation to the Fine Gael Bill introduced by the then Deputy Cooney, Minister for Justice. Deputy Kelly, in his capacity as Chief Whip at the time, did everything he could to get the support to have that measure enacted.
It is not very legitimate for Deputy Kelly, or for Deputy Boland to a lesser extent, to engage in this polemic type of argument about this Bill. If they do not like the Bill, let them say what they will do. They cannot ride all the horses in the Fine Gael Party at the one time. They say on the one hand that this is nonsense and at the same time they proceed to go into the merits and demerits of it. On top of that they refuse to put down amendments and say what they would do. If they say this Bill is not acceptable because they do not believe in it and because it is not serious legislation, the honourable thing for them to do is to vote against it and have done with it. If they want to criticise the Bill on its  merits, the honourable thing for them to do is to put down amendments and let the country see what they would do if they had the responsibility.
Dr. O'Connell: I recognise the Minister's difficulty, that we are a serious legislative body and that when we pass Bills here we mean them to be implemented. I will not take issue with the Minister on this section but I would like some information. The present lack of definition will pose problems for doctors and will place an intolerable burden on them. Doctors are expected to decide on issues that we are not endeavouring to explain to them—for instance, this question of the bona fide family planning. We are saying to doctors that if a man or a woman comes to them for contraceptives he should seek an assurance from him or her that they are for bona fide family planning purposes. This creates a very serious problem. We are placing the onus on doctors to comply with the provisions of this Bill. When we say “bona fide” do we mean where a marriage has taken place, a legal ceremony, or do we mean a stable sexual relationship? The onus is on the Minister to define what he means by this. Is the Minister asking doctors to get a firm assurance from people seeking contraceptives that they will be used for family planning purposes? Must he get that assurance in writing? Must he ask for the spouse to come to see him also? Serious problems are posed and they cannot be brushed aside lightly.
I am trying to elicit some information from the Minister. I recognise the problems he has and I recognise the society we are in, but in passing the Bill in this House we must know what it is about. We must ensure that when it is passed it will not be held up to public ridicule. I want to know if doctors will be arraigned before the courts if it can be proved that they are issuing authorisations or prescriptions for contraceptives which may not be proved to be for bona fide family planning purposes. We must settle this in our minds. Unless we can assure the doctors who are being asked to carry out the provisions of this Bill that they will not be arraigned before the  courts and unless we specifically spell out the definition we will create enormous problems.
It amazes me that the medical profession have not got a definition of bona fide family planning purposes. If they have got it from the Minister, he has not provided such a definition in the Bill. The Minister should explain the situation to the House and he should write in the definition into the section. I am asking him to put on the record of the House what he means by bona fide family planning purposes. If he does that now he will assist us in our job. I do not want to raise any problems. I recognise the Minister's difficulty but he has an obligation to explain this matter to the House. I ask him to do it now.
Mr. Kelly: I wish to reply to what the Minister said a few minutes ago. Apart from the fact that he did not even mention what I said in regard to the missing definition of bona fide family planning, to which Deputy O'Connell has referred, he is wasting time by harping back on what happened in 1974. I will deal with it if the Minister wants to waste time thrashing out what happened then and I will meet him on every single point. In 1974 I explained my views in virtually the same terms as I did here two weeks ago. When I was speaking from the Government benches as Government Whip I said that I personally thought that section 17 of the 1935 Act was wrong from beginning to end and should be repealed. If I had my own way I would have done that. I had exactly the same opinion about it then as I have now, but I was being paid to act as Government Whip and there was nothing against my conscience in acting as Government Whip in order to regularise the law following the McGee judgment. Had there been I believe my party and Government would have respected my conscience without question and would not have made it a headline topic, as was the case with Deputy Gibbons a week ago. I did my job as Government Whip as well as I could. I did not twist any arms, in spite of what the Minister implied when he  spoke. I confess I did not know that two members of the Government, including the Taoiseach, were going to vote against the Bill. I knew that some people were going to vote against and I did not have much hope that the Bill would pass, but I thought it was my job to make sure that it got the best show it could get. Without twisting any arms I put it to Deputies that unless it conflicted with their conscience they should support the Government. As I said then and as I said here last month, I would have supported a more radical Bill and I still would support such a Bill. I see no inconsistency in this position and I cannot understand why the Minister keeps harping on it.
The position is very simple. I do not think the State should set up in opposition to the law of God. I think the law of God, the natural law, must bind every Catholic and Protestant who believes in such a concept. Catholics will accept the teaching of their church in regard to contraception but that proposition is a completely separate proposition from the idea that a Catholic should impose that morality by the force of criminal law. That is what we are talking about, nothing else. While I admit I cannot argue it out, my instinct tells me that the area of life we are speaking about is so private and intimate, is so little adapted to the adjudication of other people and is so sensitive to intrusions by other people that it should be outside the pale of criminal law altogether. A person might not accept a particular form of morality for himself, but not all morality has to be enforced by the criminal law. Every moral proposition does not imply that the State should be breathing down the back of one's neck. That is what we are talking about.
There is nothing inconsistent in regard to my own record on this subject or in regard to the fact that I think this Bill is a nonsense. I am anxious that the House and the people should see that it is a nonsense and that it is not even believed in by the man who is sponsoring the Bill. He sees it as a nonsense and he is not able to say what it means or how it will work. What is inconsistent about my saying that? It is after 1 p.m. now. Would I be doing my job if I went for  my lunch now and took two hours over it while allowing this Bill to go through the House without comment? Even the definition section on its own signals that the Bill is a nonsense and cannot be taken seriously and it will join other legislation as a dead letter on the Statute Book.
Mr. Boland: I asked specific questions in a non-political way and not with any intention of scoring political points. I am disappointed the Minister seems to be compounding the errors in his reaction to Deputy Browne's amendment in the way he is dealing now with the points made on the section. Initially the Minister said he was prepared to stay here for some weeks if necessary to tease out the Bill on Committee Stage and to see if it could be improved.
It is quite unfair of the Minister to say that if the Opposition want to oppose this measure they should just oppose it and that if they think it is unworkable they should not say anything about it. He said otherwise they should put forward what they believe is a solution. I have pointed out to the Minister that I consider the definition section is seriously deficient in not having a definition of abortifacient. I pointed out to the Minister that there was such a definition in the 1974 Bill and, more importantly, that there was a section providing for the setting up of a committee to establish what would be defined as being abortifacient in its effect. I asked the Minister to explain to the House why he appears to think that that definition and the setting up of a committee does not appear now to be necessary in this legislation, although it would appear from the legislation to be even more necessary than it was in 1974. The Minister did not answer that point.
Mr. Haughey: I want to explain to Deputy Kelly that I was not indulging in political or personal animosity. All I wanted to say was that I do not think in all honesty he can say that the criticisms levelled against this Bill could not have been levelled with equal force against the Coalition Bill which he supported. That is all.
Mr. Haughey: On the definition section I want to say this, and I will say no more about it. As far as I and my advisers are concerned, the definition section is adequate and competent to achieve the purposes of the Bill, and that is the function of a definition section. The draftsman and my legal advisers assure me that the words “abortifacient” and “bona fide” are self-explanatory and do not need definition. Deputy Boland may not know, but Deputy Kelly certainly knows, that in these matters the Minister responsible for promulgating legislation is guided by the parliamentary draftsman when it comes to the mechanics of the legislation.
I want to deal briefly with another matter referred to in this Bill, that is, the question of abortifacients. I cite this again as an example of the impracticability of this Bill. It is proposed to prohibit altogether abortifacients, a sentiment with which I and this party are in total agreement but, unfortunately, the way it goes about it is entirely useless in fact because abortifacients today can take either of two forms. They can be either a mechanical intrauterine device which for the most part can only be fitted by a doctor and therefore would be fitted under medical prescription; or they can be one of the large variety of low-oestrogen pills which are now on the market and which it is believed, but it has not been proved conclusively, act as abortifacients. Abortifacients within the meaning of the sort of things we are talking about here can only be one or other of those two things but both of them can only be supplied on medical prescription and if you go to section 15 you find that the Act will not apply in relation to  any substance, product or preparation the sale of which by retail, otherwise than in the dispensing, in accordance with law, of a prescription issued by a registered medical practitioner, is unlawful. In other words, anything which is prescribed by a medical registered practitioner is not covered by the 1935 Act or the 1935 Act, as amended by this Bill, if this Bill were ever passed, and since abortifacients can only in effect or in practice be prescribed by a registered medical practitioner the purported prohibition of abortifacients is totally illusory and of no effect. This is just another one of the many difficulties that exist in this Bill that were not sorted out before the Bill was published.
Section 15 of that Bill does not appear to have been changed in this Bill, and the confusion then in Deputy O'Malley's mind is now in my mind and in the minds of others concerned with the administration of this legislation, including doctors and chemists. In 1974, Deputy O'Malley tried to clarify “abortifacient” and continued:
If that definition were to stand it would be necessary in order to prove that something was abortifacient that it was designed, prepared or intended to terminate pregnancy. There is none of these devices the manufacturers of which would admit that for one moment because the chemical abortifacients are all put on this market and sold and prescribed as contraceptives. It is thought now that their contraceptive effect derives from an abortifacient action rather than a contraceptive action but the manufacturers, of whom there are many, of such pills, would strenuously and vehemently deny that the intention was to abort an existing pregnancy.
Now the Minister tells us he has accepted the version of the parliamentary draftsman who says the definition of “abortifacient” is self-evident. He said that if I did not realise that, Deputy Kelly should have.
Mr. Boland: It is not only a debating point. It is tremendously important for everybody concerned with the implementation of the Bill, doctors, chemists, wholesalers and so on. A chemist, up against filling a prescription by a doctor must decide whether he regards the article as abortifacient in its effects—an article which the doctor has thought to be a family planning preparation. Is the wholesaler to be placed in a position in which he has not got guidance from the State except to the effect that the parliamentary draftsman has advised that the definition is self-evident? Are expensive medical researchers throughout the world to come to the Irish parliamentary draftsman to have explained to them what “abortifacient” means?
Mr. Haughey: If Deputy O'Malley took that view in 1974, if Deputy Boland says so, I accept it and the debating point on it. It has nothing to do with the quality of the decision as to whether “abortifacient” has been defined. My advice from the parliamentary draftsman is that it need not be defined.
Major de Valera: I will not go into the details of the argument, but I shall put the following to the House for consideration. We have a well-established and well-tried system of law—it was in England but it has been altered there—which lays down a code for preventing abuse of abortifacients. I was glad to hear Deputy O'Connell say “Abortion we must condemn”, and I therefore approach this on the assumption that we are all firmly of the opinion that anything that brings about or encourages it is to be condemned. On that understanding I want to put the following points to those who advocate definition here. I refer to the Offences Against the Person Act, 1861, sections 58 and 59, which are saved in section 10. Section 58 is very explicit and makes the procuring of abortion a felony punishable by penal servitude for life. That section paraphrased would be as follows: for a woman being with child  with intent to procure her own miscarrage to administer to herself any poison or other noxious thing or use any instrument or other means or for any person to do the same with intent to procure the miscarriage of any woman whether she be with child or not is a felony. That section in one sweep defines in the most general terms what an abortifacient would be whether mechanical or chemical. It is interesting to notice that it applies whether she be with child or not. It is very embracing. It is stated in section 59 that for any person to procure or supply poison or other noxious thing or any instrument or other thing knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of the woman whether she be with child or not is a misdemeanour and several years penal servitude attaches to that crime.
On the question of definition we have a well-tried system of law which is standing up here so much in fact that we are faced with a very difficult problem, namely, the exodus of many Irish girls to England to procure abortions. The law is well settled and there is even case law, Lumley's case, where it is reached out to a doctor. That law is intended to be kept intact by section 10. I am sure that Deputy Kelly will agree with me that if one attempts any definition in this act or any legislation towards it—looking back on the 1974 Act, though I appreciate the intention, if we were arguing this I would make the same point—it would be wiser to omit that definition because one is bringing in a new and untried element where we have a well-tried system and body of law. One could reinforce that argument with two further points but I do not wish to delay the House because there will be more on it on section 10.
In the McGee case there is an obiter dictum of Mr. Justice Walsh which would go to support my contention that at present the existing law in regard to abortion is effective and intact. The word “abortifacient” is explicit. It may be Latin or Latin derived, but to a lawyer or judge in interpretation there can be no doubt about what it means. One might circumscribe it if one tried,  but it is general enough to catch everything and it is therefore safe from the point of view I have and it is used in section 10. In a nutshell, reserving the right to discuss it in more detail on section 10, not only is it unnecessary but, taking the Minister's point, it is a question of mechanics. It would be much wiser for the House to leave that body of law alone and it would be much safer for us not to define that word in the section. In fact, if one wanted to insert the thin edge of the wedge with a view ultimately to facilitating the service of termination of existing pregnancy one could hardly do better than introduce conflicting provisions in another Bill dealing with the same topic. Nobody in this House wants to do that.
I welcome the comment made by Deputy O'Connell, who is a doctor as well as a Deputy, that we must condemn abortifacients. It was a useful and helpful comment. At least in the first section we should be able to reach unanimity. Deputy Kelly will appreciate I am making a lawyer's point and not a political one.
Mr. Kelly: Deputy de Valera is quite right. There is no dissent whatever in the House that I am aware of in regard to abortion or things which can cause it. I did not mention this point but Deputy Boland did. In reply to Deputy de Valera, he is right in pointing that out but he missed the point Deputy Boland was making which was that unless this term is defined in some way it may potentially expose purveyors of certain drugs or appliances to prosecution even though they may not have known at that time that they were at that risk. I admit that is a far out possibility but it is one that a parliamentary draftsman or a Deputy combing out a Bill on Committee Stage must bear in mind. The Offences Against the Person Act, is nearly 120 years old.
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