Tuesday, 26 June 1979
Dáil Eireann Debate
 This amendment arises out of the Committee Stage discussion when Deputy Browne suggested it might be desirable, in laying down conditions for the issuing of a licence for the manufacture in this country of artificial contraceptives, that some stipulation be included regarding standards. I undertook to consider that suggestion and it is as a result of that consideration that I have tabled this amendment, the effect of which would be the stipulating of conditions with regard to the issuing of manufacturing licences so that the conditions may include specifications as to the standards of manufacture.
Mr. Boland: We in this party are in agreement with this amendment which, as the Minister has said, results from a point raised exclusively by Deputy Browne on Committee Stage. I would merely like to ask the Minister whether the amendment as drafted is accurate and whether he would agree that there will not be any need for a substitute amendment in this case?
Mr. Boland: This is the final stage of a protracted and rather fruitless discussion on this unhappy Bill. I would emphasise once again that my party are opposed to the Bill being enacted. Our opposition is on the basis first, that the Bill is unworkable, that it is unenforceable and, consequently, unacceptable. For that reason we did not consider ourselves obliged even to consider the question of endeavouring to amend what was indefensible. On Second Stage I indicated why we considered the Bill to be unworkable.
We oppose the Bill also because it contravenes the ruling of the Supreme Court in the McGee judgment. As it stands, by virtue of the three very minor  amendments introduced by the Minister on Committee Stage, the Bill is in a similar position to the Bill as initiated, that is, it strikes at the root of the McGee judgment which was that a husband and wife are entitled to order their sexual affairs in private without let or hindrance from the State or from any person.
It seems to us that the introduction of a doctor in a non-medical capacity to the decision-making process of a husband and wife in this regard renders the Bill, on the basis of the Supreme Court judgment, to be as much outside the Constitution as was found to be the provision of section 17 (3) of the 1975 Act. Therefore, it seems to us that this Bill, even with its faulty premise, will not stand either the test of time or the test of the courts.
It appears to be an extraordinary situation that after the lengthy discussions the Minister has told us so often he had with so many different bodies, he should seek to introduce a Bill that has at its kernel the transfer of the decision-making process from the Minister who is responsible to the surgeries of doctors throughout the country and when the Bill has as its kernel also the making of quasi-judicial decisions in non-medical matters. This would appear to interfere totally with the clear decision of the Supreme Court that husbands and wives could between themselves in private decide how to regulate their families. On that occasion Mr. Justice Walsh said that the right of a married couple to decide how many children, if any, they will have is a matter outside the reach of positive law where the means employed to implement any such decision do not impinge on the common good or endanger human life. The court made the point also that the sexual life of a husband and wife is of necessity and by its nature an area of particular privacy, that if a husband and wife decide by means of artificial contraceptives to limit their families or to avoid having children, that is a matter particularly within the joint decision of both and one into which the State cannot intrude unless such intrusion can be justified by the exigencies of  the common good. I do not believe that it can be argued, nor has it been argued by the Minister during the debate, that it is in the interest of the common good that a doctor should be asked to make a decision as to whether a person seeking contraceptives intends them for use for bona fide family planning purposes; nor can it be argued that the doctor having issued the prescription or authorisation, that prescription or authorisation would then be conclusively taken to have been issued bona fide for family planning purposes for the purposes of this Act. This places the doctor in a quasi-judicial role, having first placed him in the role of being the moral arbiter of the decision which the court specifically has said was a decision which should be taken by husband and wife. It would appear that the Bill strikes at the kernel of the court's ruling.
Another point on which we did not speak as extensively on Committee Stage as we might have is that the court in that ruling specifically said that the decision was a joint decision of the husband and wife. In this Bill, the decision will be a joint decision of the doctor, acting in a non-medical capacity and whichever of the couple visits him. Even taking it, as the Minister was inclined to do, on the restricted basis of the court's ruling in relation to married couples as such and the relationship between husband and wife and their right to make their decisions in private about their sexual affairs, the Bill stands contrary to that decision because now the decision is to be made by a doctor and either the husband or the wife. On that basis, or on the basis that people might feel that this Bill was too liberal, they could challenge its content on the basis that the husband-and-wife common decision was being removed and assigned to the doctor and one or other of them. On the other basis on which the court also appeared to indicate that persons have the right to order their own sexual affairs in private as long as they do not interfere with the common good, it appears that the Bill strikes at the heart of that decision and consequently stands as equally outside the Constitution as the 1935 Criminal Law (Amendment) Act which it sought to replace.
 The third reason why we are not prepared to agree to the passage of this Bill is because of the very invidious position in which it places our doctors and, to a lesser extent, our chemists. Doctors will now be asked to make decisions about people's sexual affairs and in relation to matters of contraception in which doctors have no special training. The Bill itself recognises that in a number of decisions which a doctor makes those decisions will not be made on medical grounds. In section 4 (1) (b) (ii) the Bill clearly states:
the person to whom the contraceptives are sold is named in a prescription or authorisation in writing for the contraceptives of a registered medical practitioner and is a person who, in the opinion of the practitioner formed at the time of the giving of the prescription or authorisation, sought the contraceptives for the purpose, bona fide, of family planning or for adequate medical reasons....
The persons who framed this Bill recognised that in certain instances the prescribing bona fide for family planning purposes was a different thing from prescribing bona fide for adequate medical reasons. It therefore cannot even be argued that the doctor has a special medical knowledge. It is well known that there are very few doctors with training in the many different aspects of family planning which we have gone into in much detail in the course of the discussion on this Bill. For that reason the doctor is being placed in an invidious position in relation to his patients, in relation to his conscience and in relation to how he conducts his medical practice. We do not believe it is fair or equitable that the doctor should be placed in that position. We also, do not believe, because of the failure either to define abortifacients or to set up any statutory body which would give a definition and a guidance as to what abortifacients are, that it is fair to ask doctors to prescribe or a chemist to dispense items which might be found, or could be challenged in the courts to be, abortifacient in their effect and consequently would place either the doctor or  the pharmacist outside the law and, if a test case were brought, might hold them up to public odium and ridicule. I do not believe that on any basis it can be argued that this is a fair manner of treating these two noble professions.
The Minister and the House are aware that twice since 1979 the Irish Medical Association were asked to make a decision endorsing the provisions of this Bill and recommending to their members that they should participate in its administration. On each occasion, and especially on the second occasion, despite the considerable pressures brought upon them the Irish Medical Association refused to agree to recommend to their members that they participate in the exercising of the doctor's function in a non-medical capacity, as will be the case when this Bill becomes law, as it apparently will by weight of Government numbers.
For all the reasons I outlined on Second Stage and again on Committee Stage, we are not prepared to agree to this Bill. We felt it necessary, in particular, to fight against certain sections of it. We voted against it on Second Stage. We shall vote against it on completion of discussions at this Stage. We believe that it is possibly the worst attempt yet made to mend the hand of the Oireachtas in relation to this matter. On several occasions I have made a suggestion that the vexed question—and everyone must realise that it is a vexed question on which there are many differing opinions genuinely held—be discussed at an all-party Select Committee of the House or the Joint Houses of the Oireachtas. That suggestion has been rejected. I have said, in relation to this Bill and to other matters coming before the House, that if this House continues to bury its head in the sand and to allow the decisions of tens of thousands of decent Irish men and women to pass it by, if this House continues to endeavour to believe that it still lives in the 1930s, then, with all the pressures of unemployment, social conditions, bad housing, the pressures of modern living, democracy is becoming all the poorer because this House has not mended its hand in the way it approaches legislation, in the way it approaches the issues of the day, in the  way it approaches the need to change legislation.
I am afraid that many young people of childbearing age have taken the decision in relation to this matter and do not believe that they stand outside their religion, or at odds with their God; as long as they do not, then I do not believe they are. They will not accept, or respect, the decision of a Parliament which closes its eyes to what is happening in everyday life and the Oireachtas, the Government and democracy will lose respect. The enactment of this legislation will contribute in one more way towards bringing Dáil Éireann —and on the passage of the Bill through the Seanad, the Oireachtas in general— further into disrepute in the minds of the people and especially in the minds of young people. Unless we realise the type of population we have and the fact that decisions are being genuinely taken, and unless the Oireachtas can even belatedly at least keep up with what is actually happening outside the gates of this Parliament, then this Parliament may not still be here in two decades from now. I do not believe that this legislation will be here within two years from now, because I do not accept that the courts will look in a benign fashion upon legislation as ill-conceived as this.
Mr. Horgan: This is a sorry piece of legislation and one which reflects little or no credit on the Government which introduced it and pushed it through the House, despite the obvious unease of many of its supporters over the long period of time we have been debating it, or on the Minister who has piloted it through, except perhaps in relation to the stamina with which, apart from a few irascible interjections, he has borne more abuse and more ridicule on a sustained basis than I can remember any Minister having to put up with justifiably in this House for some time. One is almost tempted to think that if anybody had wanted to devise a Bill which would have done the political reputation of the Minister concerned more damage they could not have possibly chosen a better one than the one we are disposing of this evening.
 The provisions of this Bill profess to bring about the development of an adequate family planning service in Ireland but those provisions seriously hinder the provision of such a service. The provision of such a service would be far more likely to occur if this Bill had never seen the light of day and if the existing situation had continued. It is odd that even at this point in time there is still apparently some confusion in the public mind about what the provisions of this Bill contain. According to one communication, which I received within the last hour, from a group of pharmacists—a very sincere but wrong-headed communication—the provisions of this Bill will make contraceptives freely available to any person of any age, male or female, married or unmarried, at the discretion of a registered medical practitioner. That is not the situation. Even if it were the situation, I doubt if the Government would stand over it.
The provisions of this Bill are very clear. They are mainly provisions which, masked by this rhetoric of family planning services, discriminate in very sharp, telling and painful ways between different members of our society whose needs in this area may be very acute. For example, the two main categories of people who will fall under the provisions of this Bill are those with medical cards and those without. In relation to those with medical cards the Bill effectively discriminates between those to whom mechanical methods of contraception are suitable and those to whom they are not suitable. It will give, courtesy of our national hypocrisy in relation to the pill, free contraception to those for whom mechanical methods of contraception are suitable and it will force those medical card holders for whom mechanical methods of contraception are not suitable either to go, out of whatever limited resources they have, for ordinary mechanical methods of contraception or to take risks, perhaps even fatal risks, to their health by either abandoning contraception completely or opting for the only form of contraception which is available to them free under the provisions of this Bill, as outlined to us by the Minister, that is, mechanical methods of contraception.
 Let us remember that for a married couple at the present time the qualifying limit for a medical card is not astronomically high. There is a further serious discrimination for those of our citizens who are outside the ranks of medical card holders. The Bill discriminates between those non-medical card holders who wish to obtain mechanical means of contraception in this country and people who want to obtain mechanical methods of contraception by post from abroad. The latter right, which one had thought was established by the judgment of the Supreme Court, is abrogated by the provisions of this Bill. Under the provisions of this Bill if anybody wants to import contraceptives from abroad who has not been given a licence from the Minister, he or she will be subject to a wide range of penalties.
The Bill discriminates within the country among the people who are not entitled to medical cards, between people who may live in centres in which family planning services are available and those who may live in centres in which family planning services are not available. The provisions for conscientious objection, to which one cannot object in principle, are when linked to the other provisions of the Bill quite capable of creating a situation in which effective access to mechanical methods of family planning will be denied to many people in rural and perhaps not so rural communities whose local pharmacists and/or doctors may have ethical objections to the provision of mechanical methods of contraception and who neither have the means nor the desire to travel to centres where such services may be available to them.
The provisions of the Bill discrimate even between family planning clinics. The Bill discriminates between family planning clinics that may in the future be able to afford to employ a pharmacist at a licensed fee cost to them of £6,000, £7,000, or £8,000 a year and those that cannot or will not. I have very little doubt that the provisions of this Bill, as the Minister will have enacted here this evening, will be found as repellent by  those clinics as they have been found on those benches.
The provisions of the Bill, as Deputy Boland has said, introduced the doctor into what is an intimate decision between two adult human beings. It does so in the name of introducing professionalism into family planning. I have said it in the House, and I say it again, that families are the people who are professionally involved in family planning. Family planning can be a health matter but is not always a health matter. The device seized on by the Minister in this Bill as a way out of his and the Government's dilemma is to regard as health matters all aspects of family planning, including most ludicrously those aspects which are not health matters and thereby making the medical and pharmaceutical professions the gatekeepers of the moral standards of tens of thousands of honest, sober, clean-living Irish citizens.
I will conclude by reminding the House that this is not the last step. The Minister, weary though he may be, has at least one more hurdle to surmount, that is the Seanad, where I understand he proposes to introduce this Bill in the near future if it is passed here. That will be the last he will see of it if he is lucky to get it through that narrow gate. It is a narrower gate than the gate which he has encountered here. Even if he gets it through there and if he washes his hands of it, as surely as night follows day, the provisions of this Bill will be contested in the courts. It may be scant consolation to the Minister if those aspects and provisions of the Bill to which he may be personally opposed but to which he is bound by Cabinet decision are eventually booted out unceremoniously by the courts. I believe that will happen. It is not a satisfactory method of legislating and, to some extent, it reflects on all of us in this House but it reflects primarily—and this must not be forgotten—on the Government and on the Minister who introduced it.
Dr. Browne: I have tried to make clear in some detail on Second Stage and on Committee Stage my reasons for opposing the Bill. Since the Minister has not seen fit to change any of the underlying  important principles of the Bill or alter the Bill in any of its detail as a result of arguments put forward from these benches, clearly a repetition of the arguments would be futile and time-wasting.
I believe now that the opposition will have to be carried on outside this House. The courts now appear to be the defenders and safeguarders of personal and individual liberties in our society, something that properly rests with the Oireachtas. I simply state my continued opposition to the Bill for the reasons I tried to make clear. I propose to vote against it.
Minister for Health (Mr. Haughey): As Deputies have indicated, we are now coming to the final stages of this long drawn-out debate on this Bill. There is not much more left for me to say. By now everything that could be put forward from different points of view has been put forward.
Deputy Boland, with some exaggeration, seemed to suggest that the Bill is striking at the roots of our democracy. On the contrary, I feel that during the discussion in this House practically every possible segment of opinion in our community has been expressed. They ranged from the rigid conservatism of Deputy O.J. Flanagan to the very liberal viewpoint of Deputy Browne, with many Deputies taking up different stances in the ground in between. In that way the discussion has reflected very truly the conflicting opinions sincerely held throughout the community on this question. The only semi-political comment I might make would be that the official attitude of Fine Gael has been quite ambivalent. They have lacked the courage to oppose the Bill fully and they have sought refuge in this quite transparent device of an all-party committee. For our part we have fulfilled an election promise. As part of our manifesto we undertook to legislate in this area. We undertook to carry out wide-ranging consultations and on the basis of those consultations to try to arrive at a consensus and then to legislate. In so far as this House is concerned, very shortly we will have legislated and I suggest that, in  itself, that is an achievement. The Coalition Government in their term of office failed to legislate and many other attempts made here to deal with this problem in some coherent legislative fashion have failed. This Fianna Fáil Government are about to legislate.
I have never sought to suggest that this Bill was ideal but I suggest it represents a sensible, mature, responsible solution to a complex problem in our society. The elements of that complex situation are well-known to everyone and have been expressed repeatedly during the course of the discussions in this House. On the one hand, there is the social need which has been expressed by many people to have access to artificial contraceptives. It would be foolish to attempt to suggest that there is not a widespread demand from responsible married persons for reasonable access to artificial contraceptives and we must add to that the decision of the Supreme Court. Whatever arguments there may be about what the Supreme Court decided, it certainly laid it down that married persons have a constitutional right to reasonable access to artificial contraceptives. That is one element in the situation.
The other factor is that there is very strong traditional opinion in this country that artificial contraceptives should not be made available to anybody. That view was cogently and trenchantly expressed by Deputy Flanagan. There are others who suggest that artificial contraceptives while not very desirable should be made available in a controlled way. Again, there are others, and I do not think Deputy Browne would quarrel with me when I say that he appears to represent the view of those who believe that artificial contraceptives should be made available without any limit or hindrance.
In devising this legislation I have sought to tread the middle ground. I am faced with the necessity to make artificial contraceptives available to married persons or for family planning purposes. On the other hand, I do not and cannot accept the situation where artificial contraceptives would be made freely available to everybody without  any limitation of any kind. The system put forward in the legislation is one which anyone who studies this situation will eventually come round to adopting. If we want to have artificial contraceptives made available to married persons or for family planning purposes and if we do not want to have artificial contraceptives flooding the country without hindrance, there must be some system of control. I suggest that the system of controlled availability which is enshrined in this Bill is as good as, if not better than, any system that any Deputy can put forward and no Deputy has put forward any alternative system.
Mr. Haughey: I want to make this point in favour of this legislation. We have taken this matter away from the Department of Justice. The Coalition Government left this matter with the Minister for Justice——
Mr. Haughey: The Minister for Justice brought in the Coalition legislation and it was to be administered by the Minister for Justice. The entire matter of the availability or otherwise of artificial contraceptives was a Justice matter.
Mr. Haughey: We have taken this matter out of the hands of the Minister for Justice in the administration of justice and brought it in to where it should be properly located, that is, as part of the health services. I made that point several times and I can very readily envisage the howls of criticism which would have come from the Opposition benches if I had not brought the doctors,  nurses and pharmacists into this area. I would have been told that family planning was basically a medical and health matter and should be placed in the hands of doctors, nurses and pharmacists. That criticism would have been made if I had done what the Coalition did and if I had dealt with it purely as a matter concerning the administration of justice.
Mr. Haughey: I am talking about the legislation introduced by the Coalition Government. I freely accept that Deputy Corish made an attempt during the last months he was in office to bring this into the Department of Health but he did not succeed. So far as the Coalition Government were concerned, the legislation was introduced by the Minister for Justice as a Justice matter. However, that is history. Because I have to sit here and take a great deal of criticism I wanted to make the point that this legislation was brought from the Department of Justice to the Department of Health and that it is envisaged that family planning will be part of our health services and will be placed firmly in the hands of the medical profession.
I believe this is a sensible, middle-of-the-road type of solution to a serious and complex situation. Having regard to the different elements of the situation I have outlined, no Deputy has put forward any viable alternative to the solutions in this legislation which I believe will stand up constitutionally. If they do not, so be it. We will have the satisfaction that we tried to legislate. If our legislation fails constitutionally, that is another day's work. At least we will have tried to put forward legislation which meets the situation.
I claim to be better informed on this subject than any other Deputy because of the trouble I have gone to, because I have discussed this subject with so many people and I have done a great deal of research. I firmly believe that what is in this legislation is acceptable to the overwhelming majority of responsible  people in our community and a number of Deputies have admitted that. Some of them have deplored that fact, but the majority of ordinary men and women, sensible, mature, responsible people accept this legislation as reasonably satisfactory.
I want to be more than just defensive about this legislation. Whatever Deputies may think about the particular arrangements I am putting forward here, and they have been very critical of them, many of them in favour of it have not spoken because they did not feel it was necessary to do so. Anybody listening to the debate might think there was nothing but criticism in this House but I believe this Bill has almost unaminous support throughout the House.
It is my intention that the Bill will be the basis for the institution of a comprehensive national family planning service. Deputies may think the Bill is too restrictive to enable me to achieve that objective but I do not think so. Whether the family planning service which we are going to inaugurate will meet everybody's demands and wishes is another question. When this legislation is passed, I intend as part of our health services, to provide family planning services for the general public. The structure of services which will provide advice, help, consultation, assistance, guidance, sympathy and understanding will become available to married couples in the future to enable them to plan their families. This is one of the big lacks in our health services at present.
 The primary purpose of this legislation is to enable that to happen. This is a statutory basis for the provision of a family planning service for the population as a whole. For those fairly considerable segments of the population who do not wish to have access to artificial contraceptives as part of their family planning, I hope we will be able to provide a comprehensive natural family planning service. In addition we are asking the general practitioners throughout the country to turn their minds to family planning and to be able to provide for their patients a good, sound advisory family planning service. All Deputies will agree that this is necessary.
Quite a lot of criticism was expressed in the course of the discussion that there is not sufficient expertise available in the medical profession and that there is not a sufficient number of our medical people trained in the provision of family planning services. There is probably a great deal of merit in that criticism but that is something we will have to provide. In co-operation with the medical organisations we will have to try to ensure that the entire body of general medical practitioners will be in a position to afford advice, guidance and help to married couples in the planning of their families. So I believe that in putting this legislation through the Oireachtas we will have made a contribution to improving our health services in this very important respect.
Cronin, Jerry. Keegan, Seán.
Lalor, Patrick J.
de Valera, Sile.
Fitzpatrick Tom (Dublin South-Central).
Fitzsimons, James N.
Haughey, Charles J.
Hussey, Thomas. Morley, P.J.
Murphy, Ciarán P.
O'Connor, Timothy C.
Wilson, John P.
Woods, Michael J.
Conlan, John F.
Cosgrave, Michael J.
D'Arcy, Michael J.
Deasy, Martin A.
Donegan, Patrick S.
Enright, Thomas W.
Fitzpatrick, Tom (Cavan-Monaghan).
Harte, Patrick D.
Mannion, John M.
Ryan, John J.
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