An Bille Um an Ochtú Leasú ar an mBunreacht, 1982: An Dara Céim (Atógáil). Eighth Amendment of the Constitution Bill, 1982: Second Stage (Resumed).

Thursday, 17 February 1983

Dáil Eireann Debate
Vol. 340 No. 3

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[460] Atógadh an díospóireacht ar leasú Uimh. 1:

Go scriosfar na focail go léir i ndiaidh “Go” agus go gcuirfear an méid seo a leanas ina n-ionad:

“ndiúltaíonn Dáil Éireann an dara léamh a thabhairt don Bhille go dtí go bhfaighidh sí tuarascáil ar an mBille ó Chomhchoiste den Dáil agus den Seanad ag a mbeidh cumhacht fios a chur ar dhaoine, ar pháipéir agus ar thaifid.”

Debate resumed on amendment No. 1:

To delete all words after “That” and substitute the following:

“Dáil Éireann declines to give a second reading to the Bill until it receives a report on the Bill from a Joint Committee of the Dáil and Seanad, having powers to send for persons, papers and records.”

Dr. O'Hanlon: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Since last week when the debate was adjourned there have been statements from the Taoiseach, the Minister for Justice, the Attorney General and the Director of Public Prosecutions. These have added to the confusion about this Bill. Yesterday there was a highly selective version of the Attorney General's advice published in The Irish Times and I will be dealing with that later. It has been stated:

In addition the proposal would not permit an abortion to prevent serious injury to the physical or mental well being of the mother as distinct from her death. Although such abortions are not permissible under existing legislation the effect of the amendment would be to close off the possibility of the Oireachtas even considering that they might be permissible in some circumstances.

That is exactly the type of situation which [461] the amendment is supposed to close off. Virtually all abortion Acts in the western world allow abortion on the basis of serious injury to the physicial and mental well-being of the mother. In many western countries, for example, the United Kingdom, that has in effect become abortion on demand.

The Presbyterian Church in Ireland have issued a document on abortion which states:

We have already seen that the provision for abortion for these reasons has been grossly abused. It is not easy to prove to what extent health, particularly mental health, is at risk. Ninety per cent of abortions in Britain were performed in 1979 for reasons of the mental health of the mother or risk to her existing children.

It is clear from this extract that one of the reasons for the Attorney General's objection — perhaps the real reason — is that it would effectively prevent the introduction of abortion in Ireland.

Also appearing in The Irish Times was the statement that an alternative wording had been presented to the Government by the Attorney General. The wording was stated to be as follows:

The Oireachtas may, by its law, prohibit the practice of abortion, and no provision of this Constitution shall be regarded as conferring any right to have an abortion.

That would be unacceptable to us because one of the principles in this Bill is that the people by way of referendum should have the final choice if abortion is ever to be introduced here. If we were to accept that wording it would mean that the Oireachtas could at some time introduce abortion and that the 1861 Act could be amended in the Dáil without a referendum. That wording would not constitute a pro-life amendment.

My party fail to understand the change in attitude in Fine Gael. Perhaps it has something to do with being in Government or with the attitude of the Labour Party. The Taoiseach was very emphatic about his position and nowhere more so than during an interview with Brian Farrell [462] on RTE's “Today Tonight” on 4 November 1982. He stated:

When the formula was produced we were pleasantly surprised because we had feared that it would be a negative kind of formula which would attempt to lay down the conditions in which abortion should be illegal and you get into problems of definition there. What we had proposed, and I pressed this very strongly in my Ard Fheis speech, was that it should be literally a pro-life amendment which would strengthen the protection of life, the life of the unborn, and I was very relieved the amendment took that form. I feared it might take the other form and when we examined it carefully and saw the wording of it and took advice on it, it seemed to us that it was about as good a formula as you could get. I have to admit that in the Government's favour.

Later in that interview he said:

I think it is the best amendment you can get and it seems sensible to say so in those circumstances.

I fail to understand why there is such a change of attitude now. It is extraordinary that the opinions coming before us now did not come over the last three months. When the Bill was brought before the House last week for a Second Reading there were doubts of this nature. It was obvious from this side of the House last week that there was confusion on the Government benches.

The pro-life amendment is all about the most fundamental right, the right to life. There have been arguments that there has been no need for a change in the Constitution or to add this amendment to it; but if one looks at Article 40 of the Constitution, which deals with the right of the citizen, one will see it does not refer to the unborn child. Under the Irish Nationality and Citizenship Act, 1956, an Irish citizen is defined as a person born in Ireland, which in effect means that the right that we have comes after we are born and not before. It is obvious that in 1937 there was no need to put a protection for the unborn into the Constitution because at that time it was never envisaged that Governments would legalise [463] abortion. The 1861 Act makes abortion illegal and it is interesting to note that that Act is still the law in England but there has been a holocaust of abortions in that country in the last 15 years — more than two million to date. The 1967 Act merely exempts a doctor from culpability under the 1861 Act if two doctors, acting in good faith, believe that a woman should have an abortion. That is the reason why the wording suggested in The Irish Times that might be put forward to give the power to the Oireachtas would be unacceptable. There is no doubt that at the time the 1961 Act was introduced in the UK it was not intended that there would be abortion on demand but it is accepted that there are doctors who are prepared to carry out abortion on demand there. In December last efforts were made in the House of Lords to amend the Act to bring it more into line with the intention of the sponsors of the Bill when it was first introduced.

The courts here could decide that the 1861 Act was unconstitutional. While that is highly unlikely at present, nevertheless it is a possibility in the future. If one wants to consider how long that might be one has only to look at the American situation. There was no political movement in America before 1968 for the repeal of the abortion laws but in that year the lobby started. After two years they were able to overthrow a 140-year-old law that prohibited abortion in New York city and in 1973, five years later, in the case of Roe v. Wade the right to privacy was extended to include the termination of a pregnancy. Within five years of the start of the lobby abortion was legalised in the US.

It is also interesting to note that in every country where contraception was legalised the lobby commenced immediately afterwards for abortion. In many countries abortion is used as an alternative, particularly in women over 40, as, if one might term it so, a means of contraception; in other words, the women do not take any precaution and have an abortion later. The Oireachtas could amend the 1861 Act to allow abortion. That is an alternative to the courts declaring [464] that Act unconstitutional. It is fair to ask this question: what would be more democratic now than to give our people the right in a referendum to decide this issue?

Doctor Natheson, one of the promoters of abortion on a large scale in the US visited Ireland last November and he stated that he had turned very much against abortion. He was anxious to see a new amendment to the Constitution in the US and he made it clear that the pro-life groups in Ireland should learn from the American experience and campaign for the passing of an amendment to our Constitution before abortion is imposed upon us.

The medical profession have a long history of working with unconditional respect for human life. That goes back more than 2,000 years, before Christianity, to the time of Hippocrates. The hippocratic oath states that nothing should be given to cause an abortion. The World Medical Association in the declaration of Geneva in 1948 called on all doctors to maintain respect for human life from the time of conception even under threat and not to use their knowledge contrary to the laws of humanity. The two major medical organisations here, the Irish Medical Association and the Medical Union, although it may not have been within their general terms of reference to discuss such matters, at their annual general meetings both passed unanimous resolutions condemning abortion because of the strong feelings in the profession against abortion.

In the past 15 years a number of countries have assumed the power to take the life of the unborn child through their abortion laws. The role of doctors has been extended. Indeed, in some countries it is obligatory for them to take this life. Abortion is not and should not be a medical problem. It is a social problem. Life starts in some form at conception. At that time it is fair to say it is human life with potential rather than potentially human. At 12 weeks the infant is fully formed with discernible eyes, ears, face, limbs. Sir William Lily, an expert in the study of unborn children said:

[465] We know the infant is responsive in the womb to touch and light, to sound and to stimuli which you and I would consider painful.

A number of arguments have been made against the amendment many of them on the basis that we should have abortion in some circumstances, for example, when there is concern that the mother's life is put at risk to save the child. I should like to come back to the Attorney General's statement reported in The Irish Times yesterday. Under the heading “With due regard to the equal right to life of the mother” he said:

If a doctor were to be faced with the choice as to saving the life of one, and thereby terminating the life of the other, then I believe that the only lawful conclusion to this dilemma would be that he could do nothing, absolutely nothing, which infringed on either right. It is only where there is no possibility of the foetus surviving, even without the doctor's intervention, that no difficulty will arise.

I will leave legal comments on the Attorney General's statement to those who are qualified to make them, but I would have to say, in my opinion as a medical doctor, that that paragraph is rubbish. I am absolutely sure, knowing my colleagues, that there is no situation in which a doctor would stand by and do nothing, or absolutely nothing, whatever the difference is. Doctors are not confronted with the sort of situations where they have to sit down and study what action they will take in a particular case.

Medical ethics are based on the natural law with due regard to the equal rights of mother and infant. A doctor would never have to say: “I will save one life and I will let the other go.” The type of cases which have been mentioned by those who are opposed to the amendment are very rare, for example, where a woman has cancer of the womb. Cancer of the womb in a pregnant woman is a very rare condition. Where it does occur, if it is necessary for the womb to be removed, it will be removed. If the woman needs radiotherapy she will have radiotherapy. The fact [466] that there is a pregnancy in the womb does not mean there is an abortion, because there is no intent on the part of the doctor to merely kill the child in the womb. The doctor's intent is to remove the cancerous womb. The same can be said about ectopic pregnancy, a pregnancy outside the womb. It is possible that in years gone by there were medical conditions which might have caused problems for the woman who had such a pregnancy. Nowadays with modern medical treatment that would be extremely rare.

Professor O'Driscoll and Dr. Murphy of the National Maternity Hospital studied 74,317 deliveries in the National Maternity Hospital and found that 21 women died during pregnancy in that period. There was no case where they could say abortion would have saved the mother. They published their work which was a very detailed study, in the Irish Medical Journal of August 1982. I should like to quote from one paragraph in that article:

The final conclusion is that therapeutic abortion would have had no beneficial effect on maternal mortality in this hospital during the seventies and, by analogy, women do not die in childbirth because therapeutic abortion is not practised in Ireland today.

From my own experience as a medical practitioner, from what I have read in literature and from what I know from my colleagues, I do not believe it is necessary to introduce abortion for the medical cases which are quoted by those who are against the amendment because they want abortion legalised.

Rape is another case in question. However, it is very rare for a woman to become pregnant as a result of rape. There have been various studies carried out and the general consensus seems to be that, on average, one woman in 500 who is raped becomes pregnant. That would mean it would be a very rare occurence and years would go by without any woman becoming pregnant. If abortion was made legal for women who had been [467] raped it is possible that a woman could come along to her doctor and say she had been raped, even though that was not the case, in order to procure an abortion. It would be very difficult for the medical profession to decide in a case like that. I believe it would open the door to abortion on demand.

While, obviously, one must have compassion for the victims of rape, if they go along quickly enough to their doctor or to the outpatients' department, something can be done to prevent them becoming pregnant under the present law without any infringement of that law, by way of contraception, which is not abortion. It is interesting to note that Dr. Alec Byrne, who was before the UK courts in 1938 for carrying out an abortion on a girl who was raped, was opposed to the 1967 Act when it was introduced.

Some people believe that an abortion should be available to a woman whose unborn child is severely handicapped. That has already been dealt with by my colleague, Deputy Woods, and, from my own experience of working with the handicapped, I see no reason why they should be denied the right to life. Many of them have made a valuable contribution to our society in the field of literature, art and science.

It has also been suggested that the amendment would ban contraception. The amendment will not change the existing law. It has been argued that some of the present contraceptives act as abortifacients, for example, the intra-uterine device. Nobody can say in any given case how that device works, whether it is working as a contraceptive, an abortifacient or not working at all, because it is possible for a woman to become pregnant and come to her full term with the intra uterine device inserted. Again it is a question of intent. It is hard to see how, under existing laws, anybody could be charged as a result of using an intra-uterine device. As the law will not change when the amendment is added to the Constitution, then the question will not arise.

There is also an argument that the woman should have the right to choose [468] and the freedom to control her own fertility. There is no such right in our law and, therefore, the amendment cannot diminish or interfere with a right that does not exist. It is important to point out that the unborn child is not a part of its mother's body but a unique individual with the same, fundamental right to life as any other person.

It is true that the pro-life amendment will not stop women going abroad for an abortion but I hope the debate here and the amendment to the Constitution, when carried, will force the Government and society to take a more enlightened and positive attitude towards those women who find themselves forced by social pressures to have abortions. I also hope there will be a positive attempt to prevent discrimination against the unmarried mother as a result of this amendment. There should be a build-up of support services for those who need them, for example, financial help, emotional support, medical services and whatever other support is necessary so that these women will be able to continue their pregnancies happy in the knowledge that they will have their baby without any fears or guilt.

It has been suggested that the amendment is sectarian, that it represents the Roman Catholic stance. It is hard to understand this argument although churchmen seem to have varying views on this. Nevertheless, it has been suggested as a reason why we should not proceed with the amendment. It is important to state once again that the amendment is about a basic human right — the right to life — which transcends all religious views. It is the same for an agnostic as it is for a member of any religion. It is no harm to note that the 1861 Act was brought in by a British Parliament and nobody has stated that it was sectarian. When the amendment is introduced into the Constitution it will not change the 1861 Act. It is difficult to understand the argument that it is in some way sectarian.

As a member of a union affiliated to the Irish Congress of Trade Unions it came as a surprise and a disappointment to me to find that the executive were opposed to the pro-life amendment. I [469] would have expected that in proper democratic fashion they would have been anxious to give the people the opportunity to decide for themselves if they wished to have an amendment to the Constitution. The cost of holding the referendum should not be an issue. That cost is estimated at £750,000 but most of that money will give employment on polling day and to the printers. In my view the money will be well spent. I believe that when the people get an opportunity they will vote to write into the Constitution an amendment that will protect the life of the unborn.

I cannot accept the suggestion that the amendment would make this State less acceptable to the Unionists in Northern Ireland. I know the Northern people and I believe they would be much impressed by this part of Ireland being prepared to stand up for the most fundamental of human rights than if we were carried away by the rising tide of liberalism that has beset western civilisation.

The Reverend Sydney Garland, President of Life, speaking on behalf of a number of Protestant Churches in Northern Ireland, made it clear that he positively welcomed the amendment and he rejected the suggestion that it was sectarian. I should like to quote the Reverend Ian Paisley, Moderator of the Free Presbyterian Church, and leader of the Democratic Unionist Party, when he spoke last November on the subject of abortion. He said: “Life is a gift from God and no one has the right to take it away except the giver, whether that life is in the womb or in the world.” It is also significant that the Reverend Ian Paisley, Jim Molyneaux and others were vehemently opposed to the extension of the 1967 Abortion Act to Northern Ireland.

It is important that the Fianna Fáil position on the amendment be quite clear. We do not want any postponement of this legislation. It was not Fianna Fáil who stated that the referendum would be held before 31 March. We want the legislation through the House as expeditiously as possible. Fianna Fáil believe the wording we put forward is correct and nothing that has been said has convinced us that we should alter that view. [470] Having regard to numerous statements by the Taoiseach, particularly his interview with Brian Farrell on the “Today Tonight” programme, and also to statements by the Attorney General and the Director of Public Prosecutions, one might ask why at this stage, having circulated the Bill, is there any question of change? We should get a speedy answer to that question. Do Fine Gael and/or Labour want a pro-life amendment? As I said earlier, some of what has been suggested as an alternative would not be pro-life. Are we witnessing an orchestrated move to prevent the amendment? We are entitled to answers to these questions.

In May 1981 before the Taoiseach formed his first Coalition Government he promised he would introduce the necessary legislation to bring forward the referendum on such an amendment. We know that when in Government at that time he distanced himself from his promise and he went off on a constitutional crusade. Before the last general election he promised again to introduce the amendment and it was he who stated the referendum would be held before 31 March.

During the motion on Dáil reform there were many references to this House and the perception of the public with regard to this House. I am concerned that the credibility of the House and the Government — not the credibility of Fianna Fáil who have taken a consistent stand on this matter — and particularly the credibility of the Taoiseach is at stake here. He should gather his courage, honour his commitment, hold the referendum on the wording presented and give the people an opportunity in the most democratic way to enshrine protection for the unborn child in our Constitution.

Minister for Health (Mr. B. Desmond): Information on Barry Desmond  Zoom on Barry Desmond  Any proposal to amend our Constitution is a matter of grave importance. In any Constitution a community sets out its basic charter for harmonious communal living while specifying areas in which the individual may enjoy autonomy and, above all, defence against coercion by others. The Bill which is the subject of [471] debate today is of great importance for two main reasons: first, because it concerns a constitutional change and, secondly, because it touches upon an issue which has a unique capacity to generate conflict of great emotional intensity.

Mrs. Geoghan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  In view of the fact that the Minister has presented copies of his speech to the press, perhaps he would give some copies to Members of the House?

Mr. B. Desmond: Information on Barry Desmond  Zoom on Barry Desmond  Certainly.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  The House will appreciate that it is not a matter for the Chair but a matter for the Minister.

Mr. B. Desmond: Information on Barry Desmond  Zoom on Barry Desmond  Before addressing myself to some of the principal susbtantive issues raised by this Bill I wish to place on record my concern about some elements of the context within which this Bill has been brought before us. It is of course a sign of a vibrant democracy that groups with particular interests and opinions should have ready access to the organs of public opinion and above all to Members of the Legislature. It is also entirely proper that matters of such fundamental importance as those raised by this Bill should receive extensive public discussion. In this case, however, I have to say that in my view the extensive, considered and dispassionate debate in the community as a whole which should precede any initiative to amend our Constitution has not taken place. Instead, we have witnessed an unprecedented campaign to promote this legislation prior — and I stress that word — to the legislative process having a democratic opportunity to assess the grave questions raised in this debate. More importantly, however, I regret the attempts which seem to me to have been made to discredit those who have voiced their reservations or objections to the measure now before us. As one who has made my opposition to abortion well known I find it personally offensive that, by a mixture of direct attack and innuendo, those who for good reasons oppose this Bill should stand accused of favouring abortion. I trust that [472] such tactics will play no part in the full consideration of this measure by this House.

I wish now to turn to some of the reasons why I believe the Bill before us and any similar form of amendment should be resisted. I wish to make it perfectly clear that as much as anyone in this Chamber I am utterly opposed to abortion. My reaction to this Bill therefore is shaped by my overriding concern that this problem be alleviated and removed. My reaction is also shaped by my concept of the place of the Constitution in the life of our community.

As I understand it, there is universal acknowledgment that the procuring of an abortion is at present illegal under Irish law. Furthermore, it is abundantly clear that any attempt to change the law in this regard would meet, rightly, with the overwhelming opposition of Irish society, not least as reflected in the membership of this House. It has been argued that the reason why we should amend our Constitution in this regard is due to the possibility that at some future date abortion might be imposed upon the community through judicial interpretation of the Constitution as it now stands and possibly in furtherance of our obligations under international law. There is no evidence to suggest that the tradition of judicial interpretation in this country could lead to such a finding. Rather, there is a widespread feeling that such an interpretation would be repugnant to anyone trained and moulded by Irish law and tradition. In short, the amendment as proposed would not in my view add one iota to the legal ban on abortion in this country.

Should such an amendment be made, however, it is salutary to consider the probable consequences. Most obviously such an amendment as is offered to us in this Bill would firmly place the whole question of the right to life of the unborn and abortion within the arena of judicial interpretation. In a matter such as this the wording of a constitutional provision must necessarily be somewhat imprecise. Such indeed is the case in the form of words now before us. In explicitly requiring the courts to have regard to a number [473] of different and possibly conflicting legal rights and responsibilities, I would suggest that such an amendment invites litigation. I would go so far as to say that for the future the present ban on abortion may be argued to be put at greater risk through adoption of this form of words or any similar form than by leaving the whole question to the normal process of statutory control.

A second area of imprecision which would flow from the form of words proposed relates to the future position of women who may currently receive treatment in the form of the removal of a cancerous uterus or a termination of an ectopic pregnancy. These procedures, in conformity with the teaching of the majority Church, are currently available because they are argued not to represent abortion. They do, however, result in the termination of a pregnancy and, although this is perhaps technically the outcome of a surgical procedure, I am impressed by legal commentators who have suggested that the future of these procedures may be in doubt following enactment of an amendment such as this. Those who support the introduction of this amendment are unlikely to wish that this be a result of their plan. I do not see, however, that they can be sure that this will be the case.

I strongly feel that it is of critical importance at this juncture of this debate that I should, as Minister for Health, put on record not merely my own views — and indeed I stress that my views are shared with those of expert opinion within my Department — but also those of the Attorney General, Mr. Peter D. Sutherland S.C. He has now advised the Government that further to the Minister for Justice's request for advice on the legal implications of the proposed amendment his views are as follows and it is important to put them on record now:

In summary: the wording is ambiguous and unsatisfactory. It will lead inevitably to confusion and uncertainty, not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers and more specifically the [474] judges who will have to interpret it. Far from providing the protection and certainty which is sought by many of those who have advocated its adoption it will have a contrary effect. In particular it is not clear as to what life is being protected, as to whether “the unborn” is protected from the moment of fertilisation or alternatively is left unprotected until an independently viable human being exists at 25 to 28 weeks. Further, having regard to the equal rights of the unborn and the mother, a doctor faced with the dilemma of saving the life of the mother, knowing that to do so will terminate the life of “the unborn” will be compelled by the wording to conclude that he can do nothing. Whatever his intention he will have to show equal regard for both lives and his predominent intent will not be a factor. In these circumstances I cannot approve of the wording proposed.

It is of equal importance that this House should, in the context of a mature and careful deliberation of the implications of this Bill, take cognisance of the statement issued by the Director of Public Prosecutions. It is important to put that statement on record and I put it on record as follows: He said. “Pursuant to the Prosecution of Offences Act, 1974, section 2, the Director of Public Prosecutions has expressed his views regarding the effect upon prosecutions of the procurement of miscarriages under the Offences Against the Person Act, 1861 in the event of the proposed amendment being promulgated by a referendum.” The director indicated that at present he would, subject to the normal proofs, have no difficulty about instituting a prosecution in relation to the deliberate termination of a pregnancy in any case in which there was no immediate threat to the life of the mother. If the proposed text became part of the Constitution he stated that he would experience grave difficulty in maintaining a prosecution in many cases falling within that category. The view of the director was that the proposed wording would introduce profound uncertainty in regard to the enforcement of the [475] law relating to procuring abortions. I suggest that the views of senior staff in the Department of Health, the Attorney General, the Director of Public Prosecutions and the considered, mature and very carefully expressed views of the Minister for Justice, on whom fell the role of introducing this Bill, must be given the greatest of consideration in this House in relation to the text of this amendment.

I mentioned earlier that my opposition to this Bill is also influenced by my perception of the role of the Constitution. In many respects Bunreacht na hÉireann is an admirable document, not least in regard to its provisions concerning human rights. As elaborated by the courts, our Constitution has served us reasonably well over the past 40 years and more. Changes in the text must be approached with great caution. However, I do believe that there are many respects in which the Constitution merits further examination and perhaps substantial change. Members will be familiar with the principal areas in respect of which change has been canvassed from time to time. For example, I am concerned that the provisions of the Constitution concerning private property may have an unduly restrictive effect on social legislation which would eliminate many of the most glaring abuses arising from land speculation. Such changes should follow detailed consideration and widespread discussion. At the end of this process constitutional change should reflect a groundswell of opinion and the provisions enacted should provide a focus for unity and common purpose. By contrast, the provisions of this Bill have served as the focus of social division of an intensity unprecedented in recent times. This House must be concerned with the divisive influence of the campaign which culminates today in our continued discussion of this Bill. I believe that it is particularly unfortunate that the nature of the division thus fostered is characterised by quite clear denominational differences.

In these times of ecumenical dialogue and progress, when the need for reconciliation [476] between the denominationally distinct communities in Northern Ireland has never been greater, it is entirely regrettable that a constitutional amendment of dubious intrinsic value should serve to drive a wedge between adherents of the majority Church and the other principal religious communities. There are, of course, many thousands of members of the majority Church who, while fully respecting and supporting their Church's teachings and tradition in this matter are totally opposed to this amendment. In short, the damage to communal well-being, which will result from the social divisiveness of this measure, far outweighs the notional, and indeed very dubious benefits which it may confer.

Many have commented on the deplorable waste of resources which will be involved in conducting a referendum of this issue at this time when the scarcity of resources has forced painful decisions upon the Government with regard to the availability and expansion of valued services. As Minister for Health I am acutely aware of the potential benefits of the alternative uses to which the resources concerned could be put. However, this is not a major objection on my part. Over and above all other considerations, my opposition to this Bill and the proposed amendment stems from the legalistic and impersonal response to the tragedy of abortion which it purports to represent. Of course, it is no answer to the problem of abortion. The sorry trail to abortion clinics in Britain and other countries still remains. It is inconceivable that effective action could be taken to prevent Irish women, who so choose, from seeking abortion in Britain in the tragically large numbers of recent years. Some have suggested that they could be forcibly restrained. Even if such were physically possible, which it is not, the measures required would be intolerable in a civilised society.

A solution to the grave problem of abortion is not to be found in constitutional amendments. It is, rather, to be found in a serious analysis of the reasons why so many of our people, who have been raised in an atmosphere of respect for human life, should so decide to seek [477] abortion. I would suggest that the answer may be found, in large measure, in the pressures experienced by many vulnerable women, particularly young unmarried women who find themselves pregnant. This pressure comes from immediate family, relatives, neighbours and friends many of whom would cheerfully vote in favour of the amendment contained in this Bill but apply a different and particularly unfeeling standard when the problem confronts them personally. A community which, to a considerable extent, encourages women to seek solutions to their problems outside Ireland would be entirely hypocritical in enacting the proposed amendment.

As Minister for Health and Social Welfare I propose to give special attention to those services which may reduce the pressure on those otherwise led to seek abortions in Britain and elsewhere. I am very much aware of the valiant efforts made by statutory and voluntary organisations to provide such services, often in a hostile climate. I might make the point that I am currently, within the Department of Health, seeking some basic fundamental information regarding this question. As soon as I have the information I will make it available. I refer to information in relation to women who go to the UK, America, Holland, France and other countries seeking abortion. This is far more than 4,000.

I also believe that the availability of an effective family planning service would contribute in no small measure to reducing the numbers considering abortion as a real possibility for themselves. In this regard, I have already announced that I am undertaking a comprehensive review of the operation of the Health (Family Planning) Act, 1979. I shall be bringing proposals for changes in this area to the Government at an early date. I only wish that the same energy, drive, commitment and money which has been devoted to the campaign promoting this amendment could be devoted to tackling the grave problems faced by many families in the care and development of children in our society after birth.

My opposition to this Bill stems from deep personal conviction as well as what [478] has been, I hope, a careful and dispassionate weighing of the various issues involved. The Labour Party secured an agreement in the Joint Programme for Government that all of our members would have the democratic right to a free vote on this issue when it came before the House. I think that that is the honourable course and I feel that all Members should be in a position to express themselves freely on this issue. I regret that this may not be the case. I am more hopeful now that this debate has commenced that wiser and more tolerant counsels will prevail. This proposal originated outside the main parties and has been pushed by a vociferous pressure group who, despite their good intentions, may do more harm than good. It will have no substantive impact on the services provided by the State and it is impossible to judge what its legal consequences may be. In these circumstances I see no difficulty in voting on this Bill in accordance with my assessment of its merits since differences between Deputies who are members of the Cabinet on this issue carry absolutely no implications for the execution of the agreed programme for government.

Accordingly, I strenuously urge the House to reject this Bill and not to go ahead with this socially divisive measure, the possible side effects of which are unknown and which would have no practical impact on the phenomenon of abortion in our society.

Mr. Barrett: Information on Michael Barrett  Zoom on Michael Barrett  (Dublin North-West): This Bill contains the considered views of the majority of our people who believe that the Constitution should give expression to the right to life of the unborn child. The proposed amendment is intended to give expression to the value that all sections of the community place on human life. The amendment is designed to extend in a positive way the existing constitutional protection of the life of the citizen to the life of the unborn child while at the same time respecting in full the life of the mother. It is argued sometimes that the life of the mother can be saved only by way of abortion but there are no medical circumstances in which [479] the life of a mother can be saved only by killing the unborn child. Women do not die because abortion is not available. A medical practitioner does not give preference to one life as against the life of another. He tries to save both.

The Society for the Protection of the Unborn Child was established to rally opposition to abortion in the Republic and, consequently, to affirm the value of human life from the moment of conception by ensuring the absolute right of the unborn child to legal protection from induced abortion. The promoters and supporters of this amendment believe firmly that the amendment as it is worded will ensure that abortion can never be legalised in this country except by way of the democratic will of the people at another referendum. This amendment would ensure that the Supreme Court could never determine that abortion be legalised. This, in itself, would be a great achievement. If the amendment places an obligation on the State to protect the life of the unborn child, the State must then maintain effective legislation to back up the constitutional position. Acceptance of this amendment would not interfere in cases of women going to England to have abortions. There are areas in which a democratic State cannot intrude. In many countries such as Belgium where abortions are performed widely, the State does not prosecute although abortion is prohibited by law. If the present law here had constitutional backing the Director of Public Prosecutions at any future date could not turn a blind eye to cases of abortion in the Republic.

Much as we might regret women going to Britain for abortions or to any other jurisdiction in which such injustices are legal, we cannot prevent them from doing so but in so far as possible we can prevent referral agencies from operating. A curtailment in this respect would have the effect of fewer Irish women going to Britain to seek abortions. Those who favour abortion argue that the amendment is sectarian but the right to life transcends all religious beliefs. It is not sectarian nor does it represent the moral view of any [480] one religion. The present legal safeguard in respect of abortion is enshrined in the Offences Against the Person Act. That law was enacted by the British Parliament in 1861 but it could be challenged in court at any time by an abortion lobby in a specially chosen case.

In the US abortion was provided for by way of a ruling of the Supreme Court in 1973 but it was done against the will of most Americans. In Britain a Bill known as the Medical Termination of Pregnancy Bill was passed in 1967 and became known as the Abortion Act. That law removed legal protection from the unborn child up to the 28th week of pregnancy. Since the introduction of that legislation, two million babies have been destroyed. Abortion in Britain has become a very lucrative business with a turnover of between £30 million and £50 million each year. The amount of money involved has led to the development of widespread abortion agencies in Ireland. The lesson to be learned is that the time has come to ensure that the unborn are protected against abortion but we must do so before we have a major problem on our hands.

This amendment, if accepted, will give constitutional protection to the unborn child. The right to life is a basic human right. It is a right that must not be ransomed to pluralism or to the concept of the so-called woman's right to choose. We must not be influenced by the condoning of abortion in other countries. The Irish people should be seen to give testimony to the value of human life. Every child, whether he be unborn or whether he be handicapped, has the right to life. These most silent and defenceless babies are part of the human family and need our support in ensuring their right to life.

Despite the different views on abortion expressed by the various groups who have been formed to oppose the amendment, they are all in total agreement in their opposition to it and say that it will not solve the problem of unwanted pregnancies. The amendment was never intended to do this. Some of these people argue that their motives for opposing the amendment relate to ensuring the safety [481] of a woman's health especially in cases of rape or incest. A child conceived as a result of either of those two crimes has not committed any crime. He cannot be blamed for the circumstances of his conception.

There has been reference from time to time to the EEC or to the European Court of Human Rights imposing abortion on us but no member state can be compelled to adopt abortion laws without there being a change in the Treaty of Rome on which the EEC was founded.

In the case of the European Court of Human Rights, decrees of this court cannot override the Irish Constitution. If they conflict with it, an amendment of the Constitution is necessary because our Constitution, as it stands, does not contain any specific protection for human life before birth.

The forthcoming constitutional amendment is about the prevention of legal abortion and the direct killing of the unborn life, but as long as the people wish, the existing law will remain. The amendment has no other objective, and its passage will mean no new restrictions of any kind on anyone. It will confer on the most defenceless group in the community the same constitutional protection you and I, as citizens already enjoy.

The decision of this Government to change the wording of the amendment is most regrettable. In view of the fact that the present Taoiseach, when in Opposition, announced publicly in November 1982 that his party had sought legal advice on the wording of the amendment and that their legal advisers found it fully acceptable, it would seem that the decision of their Labour partners in Government not to support this amendment, irrespective of the wording, has created a problem for the Taoiseach. The Labour Party's attitude towards this amendment is withholding from the unborn child the same protection which they as citizens enjoy, that is, the right to life.

I believe the intervention of the Director of Public Prosecutions in this amendment is most regrettable because it was the general understanding that his role was completely outside politics and that [482] it was his duty to act in that office in an impartial way.

Minister of State at the Department of the Taoiseach (Mrs. Fennell): Information on Nuala Fennell  Zoom on Nuala Fennell  This debate to provide for an additional subsection to be added to section 3 of the Personal Rights, Article 40, of the Constitution has engendered a considerable, and at times an emotive, if not shrill, public debate. This, I believe, is a reflection of the very deeply held public concern and conviction about abortion, the manner in which it touches our perception of right and wrong, and the way in which we regard life itself.

The concept of something in the order of 60 million abortions throughout the world each year is overwhelming in its magnitude, as one which, along with the increasing easy availability of abortion on demand, causes very great concern to many individuals and organisations. It is a concern which can evoke, or can be brought to evoke, a very definite political response.

Developing legal and political experience in other jurisdictions strongly supports the desirability of a constitutional guarantee here for the unborn. People who say that this is unnecessary cannot ignore foreign experience.

The question for the Oireachtas and the country is the extent to which the right to life should be constitutionally protected. There is an argument that the existing law, the Offences Against the Person Act, 1861, is adequate and that there is no possibility whatsoever of the Supreme Court recognising any constitutional right to abortion. We have, however, moved beyond this argument and are in a situation where the issue is now, subject to the approval of the Oireachtas, being brought to the people for their best judgment.

The wording of the proposed amendment raises serious medical and legal issues for consideration. There is the central question of the actual point in time at which the legal protection afforded by the amendment will extend to the fertilised ovum or to the embryo, and how this protection will relate to existing medical [483] and social practice, such as ectopic pregnancies, uterine cancer and the use of the morning-after pill and inter-uterine contraceptive devices.

One of the notable things about the discussion and public debate on the amendment, which has been carried on over the best part of the last two years, has been the apparent contradiction in professional opinion. To many people it appears that we are into the realm of dial-an-opinion politics, with groups in the legal, medical and religious spheres emerging with apparently diametrically opposing theories and evidence to support their particular stand on this issue.

Now that the debate has finally come before this House, there are many among us who would wish that it could be an open and honest debate, with Deputies on both sides of the House making contributions based on clear information, full and hopefully impartial briefing and an understanding of any implications involved. Maybe this is too much to expect, in view of the fact that this amendment issue was used in such a cynical way by the Opposition at the start of the last election, but it is none the less something I would aspire to, and believe it is our duty. In my opinion, it is only through honest and open discussion that we can come to a consensus view, which will be the right one for this House and for our society. I would like to take this opportunity of thanking the many people who afforded me time and material to contribute to an understanding of the issues involved.

Because I am a feminist it has often been presumed that I must be in favour of abortion. There is an automatic assumption that if you work for, or have a commitment to, the campaign for women's rights, you would also be in favour of abortion legislation. I could never support this view because I believe that abortion is fundamentally wrong. I do not expect a citation for this fact, nor would I judge any woman who has had an abortion. I merely mention it because in terms of feminism, I am exceptional when it comes to the international view [484] of abortion legislation and its availability. I also mention it because many Opposition Deputies accused me last year of being pro-abortion, possibly because I have worked for women's rights.

Where abortion is resorted to, I regard it as an unfortunate violence against women, apart from the other violence against the foetus. I must further state that while my commitment to feminism does not include an acceptance of abortion as a woman's right, it very emphatically does include a commitment to ensuring that women have free and ready access to comprehensive family planning methods, which I do not regard is now the case, and it also includes a commitment to ensuring the protection and safety of a mother's life in pregnancy and childbirth.

I do not intend to get involved in the legal, medical or theological arguments of this Bill. I feel that the Minister for Justice's speech has dealt very effectively with most of those arguments, and I have no doubt that many other speakers will follow this course. I am not a lawyer, theologian or doctor. I am a woman and a mother. I intend to use this debate as a platform to raise the social issues involved in this discussion.

The Eighth Amendment to the Constitution is about people and specifically about pregnant women. I do not imagine that the subject of pregnancy in any specific detail is one which can have filled many pages of the Official Report in the past. This could be related to the fact that until recently very few Members of this House could become pregnant and actually give birth. It has not been a problem or a reality for TDs or for many Senators. Because it is very apparent that the pregnant woman has been kept at a distance from the main public debate I would like, with feeling and sensitivity, to bring her into the debate and to dwell now on the condition of pregnancy. Perhaps I should add that it has tended to be regarded as making a case for abortion when on public platforms and in public debate anybody has spoken actually about women and pregnancy and I do not want this interpretation put on my [485] contribution.

The overwhelming majority of women between 14 and middle age can become pregnant. For most women it is a happy and welcome occasion. For the majority of women, the missing of a first period is a cause for celebration. Every new pregnancy, every new baby, is a different experience. Pregnancy is an extraordinary manifestation of the working of nature in which women play a major role. For some women, however, the wondrous celebration which I have described does not follow on the warning signs that they could be pregnant. For them it is a time of anxiety, even despair. Until recently, discovering or confirming a pregnancy was usually a long-term exercise, entailing a visit to a doctor, a urine test and very often awaiting the other physical changes or symptoms which confirm a pregnancy. This took a couple of months and involved others — a GP, relations and friends. Nowadays, as with so many other areas of technological advance, we have a do-it-yourself kit which can be bought at any chemist's shop for a reasonable price and which will predict with good accuracy the negative or positive results.

There are also various confidential pregnancy testing agencies advertised in newspapers and magazines. With these methods, which need not involve a family doctor or friend or, indeed, anybody else, a woman can very privately and very quickly determine if she is going to have a baby. This confirmation of pregnancy for many women can have a devastating effect. A woman for whom a positive test confirms an awful suspicion can be locked up with her grim secret, isolated, alone and afraid.

I would emphasise, for the benefit of men in this House, that to be pregnant is not like any other state of being. It is not like having a cold, being hungry, having 'flu or suffering a hangover, in so far as these are temporary conditions while pregnancy is long-term, with lifetime implications. For many women the news of a pregnancy comes with very mixed feelings. Apart from the women who see it as a cause of celebration and happiness, there are others who feel absolutely shattered [486] at the discovery. I am making this point in some detail because I wish to dispel the idea that women are a homogenous group whose circumstances are all the same and whose feelings are identical. Every woman is an individual. Women live many different lifestyles, subject to different conditioning, under various pressures, but all with a common capacity to become pregnant. There are women all over Ireland, living in every constituency represented by TDs in this House, for whom becoming pregnant is far from a joyful discovery. These women include mothers with larger families than they can cope with, many living in very inadequate housing. They are women with health problems, for whom pregnancy is regarded as a hazard, wives in difficult marriages, women who are not married, girls from 14 upwards who are at school or at work — these are the women for whom an unwanted or unplanned pregnancy can be an unremitting nightmare and who are faced with the agonising decision about abortion.

I know that many of these pregnancies are because of lack of access to proper family planning methods or because of inadequate sex education— or due to the immature and irresponsible behaviour of men. Many Irishmen, I am sorry to say, do not accept responsibility for their sexuality, and it galls me to see how quickly many of them will point the finger at a woman who is the victim of an unwanted pregnancy. Can I say that I know that many a fee for an English abortion for an Irishwoman came out of the pigskin wallet of a respectable and upstanding member of Irish society, as a pay-off for his sexual indiscretion.

For a society and a country committed to the total exclusion of abortion legislation now and in the future, we have a pitiful record when it comes to the treatment, the needs and the role of the unmarried mother in our society. It was surprising to hear Deputy Dr. Woods, in the first contribution from the Opposition, claim concern about the agencies helping women here to cope with this problem. It had a hollow ring. In his time over the years as Minister for Health assistance to such organisations took second [487] place to expenditure on deals like the Talbot plan, or Knock Airport. The total funding in 1982 for organisations like Cura, Cherish, Ally and the Federation of Services for Unmarried Parents, not to mention other health organisations like the Samaritans, came to £34,810. By any standards, this is far from adequate. I would like to commend these organisations for their work and commitment, and assure them of my express support, within the confined financial limits today.

I cannot see this constitutional issue in isolation from the lives of the people with whom it is concerned, women and children. We have to take into account the lives of many Irish women in Ireland today. We have an obligation here to tackle the problems confronting women. One of the most appropriate areas for legislative change is the abolition of the concept of illegitimacy, under which it will be possible for an expectant mother to make a declaration of paternity and I am examining the proposals of the recent Law Reform Commission on Illegitimacy with a view to the earliest possible legislation.

But we have other obligations — they entail making provision for childcare facilities, legislation to give access to comprehensive family planning, examining the availability of voluntary male and female sterilisation, and above all, to plan a programme of adequate housing for larger families, for those who need them and for single parents; so that no woman will be forced by circumstances to have to opt for abortion.

It is scandalous that we have families living in grossly overcrowded conditions, as I well know, with 15 and 16 living in a three-bedroomed house and young unmarried mothers with their babies living in damp, rat-infested basements.

We should not legalise abortion. I have given a commitment in any election I have ever stood for that I would never contribute to, or support, the decriminalisation of abortion. I support, with my party, the holding of this referendum, but would ask the House to spare a thought for thousands of our countrywomen —[488] and they are our countrywomen — who go to England for abortion. What is this experience like? I think we should dwell a little on it. I would ask the Chair if I may quote a section from a book by Simone De Beauvoir who writes about the plight of women, these Irish women who go abroad. This quotation is from her book called The Second Sex, Chapter 2, The Mother:

They undergo the humiliation of begging and cringeing: they beg for an address, they beg a doctor and a midwife to take care of them; they risk being haughtily turned down, or they expose themselves to a degrading complicity. The deliberate invitation of another to commit an illegal act is an experience unknown to most men, and one that a women undergoes in a confusion of fear and shame. In her heart she often repudiates the interruption of pregnancy which she is seeking to obtain. She is divided against herself. Her natural tendency can well be to have the baby whose birth she is undertaking to prevent; even if she has no positive desire for maternity, she still feels uneasy about the dubious act she is engaged in. For if it is not true that abortion is murder, it still cannot be considered in the same light as a mere contraceptive technique; an event has taken place that is a definite beginning, the progress of which is to be stopped.

Some women will be haunted by the memory of this child which has not come into being. Helene Deutsch——

That is in the “Psychology of Women”:

cites the case of a married woman, otherwise psychologically normal, who was twice compelled, because of her physical condition, to lose a foetus of three months and who felt obliged to erect a small tombstone for each of them. She piously tended these memorials, though she later produced several children.

Incidentally in Japan, where abortion is very common, it is a known fact that women who have abortions also erect small memorials.

[489] To continue the quotation:

If the miscarriage has been voluntarily induced, the woman will have more reason to entertain the feeling that she has committed a sin. The remorse that in childhood may have followed the jealous wish for the death of a newborn brother is revived, and the woman feels herself guilty of having really killed a baby. Pathological states of melancholy may express this feeling of culpability. Other women may gain from abortion the sense of having destroyed a part of themselves and feel resentment against the man who has agreed to or requested this mutilation. In another case cited by Mrs. Deutsch, the girl was deeply in love and insisted on having an abortion for the sake of her lover's career; but afterwards she refused to see him, feeling that she had sacrificed too much.

Men tend to take abortion lightly; they regard it as one of the numerous hazards imposed on women by malignant nature, but fail to realise fully the values involved. The woman who has recourse to abortion is disowning feminine values, her values, and at the same time is in most radical fashion running counter to the ethics established by men. Her whole moral universe is being disrupted. From infancy woman is repeatedly told that she is made for childbearing, and the splendours of maternity are for ever being sung to her. The drawbacks of her situation — menstruation, illnesses ... are all justified by this marvellous privilege she has of bringing children into the world.

I merely quote this extract to indicate that it is not a joyful occasion for any woman who has to have an abortion.

It is generally accepted that the text of the amendment is not perfect. I believe it is entirely reasonable for the Minister for Justice both to acknowledge this, and to say that he will fully consider any views on a better text advanced by representatives of the Churches or of other groups. That is the essence of democracy. Parliament is the place to consider the detail of [490] the wording, and there should be no objection to accepting that it might be improved upon.

The Minister has adopted a very responsible approach which reflects opposition to abortion but does not adopt a “closed” mind on what is best.

The amendment is concerned with protecting and balancing the right of the unborn child and of the mother. It is difficult to define in the circumstances where, precisely, the line should be drawn. The Minister has said that he is more than willing to listen with an open mind to anything said inside the Dáil or outside it which will help to clarify the text and prevent any future difficulties.

My contribution here should not be interpreted as advocating or making a case for, abortion here. I do not want abortion in Ireland. I appeal for an understanding and recognition of the risks which could be involved in this constitutional amendment.

Finally, as members know, as part of our programme for government and my particular responsibility we have given a commitment to the setting-up of an all-Party Committee on Women's Affairs. It is my hope that this committee which I hope will be set up very soon will be the focus of interest shown in this debate, which is about a women's issue and which will be carried on into the work of that committee when established.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  Tá mé buíoch as ucht seans a bheith agam labhairt ar ghné chomh tábhachtach de dhlí an Stáit ar ocáid den tsórt seo go mor mhór i nDáil Éireann. D'éist mé go han ghéar an tseachtain seo caite le óráid an Aire Dlí agus Cirt. Bhí an-áthas orm furmhór dár dhúirt sé a chloisteáil ar an ócáid sin. Faraoir níor chreid mé i ndáiríre gurb eisean a scríobh an chuid dheireannach dá óráid. Ní chreidim fós go deimhin gurb iad a chuid tuairimí féin a bhí á nochtadh aige nó go n-aontaíonn sé go pearsanta gur chóir an leasú seo atá á phlé inniu agus an tseachtain seo caite agus a bhéas go ceann cúpla seachtain a athrú ar aon bhealach nó a chur ar an méar fhada. Creidim go bhfuil go leor Teachtaí ar na binsí thall sa dá pháirtí atá in aghaidh [491] gin-mhilleadh agus bhí an-áthas orm nuair a labhair an tAire Stáit, Deputy Nuala Fennell, agus nuair a dheimhnigh sí go raibh sise in aghaidh gin-mhilleadh freisin, mar creidim féin go bhfuil, b'fhéidir, tuairimí níos láidre ag na mná atá ina dTeachtaí sa Teach seo faoi ghin-mhilleadh ná mar atá b'fhéidir ag go leor de na fir. Beidh mé ag súil mar sin go mbeidh deis ag na mná atá ina dTeachtaí anseo labhairt ar an mBille agus mar dhuine díobh sin mé féin, duine a chaith naoi mí ag iompar clainne agus mé i mo Bhall den Teach i 1978-79, tá áthas orm gurb iad mo thuairimí féin a bhéas á nochtadh agamsa anseo anois.

In a letter published in The Irish Times of 1 July 1982 by a doctor who has spent a professional lifetime in the practice of obstetrics and gynaecology in what is the largest maternity unit in either Ireland or Great Britain it was stated that there was no medical condition known to him where termination of pregnancy was necessary to save the woman's life. In support of that contention of his one has only to refer to the annual reports of the Maternal Mortality Committee in which every death in the Republic of Ireland has been recorded over a period of 17 years, and they have been so recorded on an annual basis. Subsequently a further report appeared which indicated that the number of births in the Republic of Ireland for the year 1981 was 72,335. It is also recorded that eight mothers died in that time. The cause of death was not related to the fact that the woman was pregnant in at least five of the instances and no one of the other three could have been saved by the termination of pregnancy.

A scientific article entitled “Therapeutic Abortion, The medical Argument” which was mentioned earlier this morning by Deputy O'Hanlon appeared in the Journal of the Irish Medical Association in August 1982. It was based on detailed analyses of maternal deaths in the National Maternity Hospital over a period of ten years. The conclusion was that therapeutic abortion would have had no beneficial effect and that women do not die in childbirth because therapeutic [492] abortion is not practised in the Ireland of today. To my knowledge that contention was never challenged. It is unfortunate, indeed sad, that the medical argument has been used as a wedge to prise open the door anywhere abortion has been legalised and is now freely available. It is also very sad that it has been used with tremendous effect to divide the Churches. Surely every form of medical treatment that a patient receives involves some risk to that patient? That applies to men and women and to children, whether born or unborn. An expectant mother who takes a normal aspirin for a headache inevitably involves her unborn child and whenever a general practitioner treats a pregnant woman he must be acutely conscious of this.

Those of us in this House who have had the privilege of having children of our own know how potentially harmful drugs are used with greater discrimination during pregnancy. However, in the final analysis every woman must receive whatever treatment her condition requires, medical or surgical, and no form of treatment is precluded whether she is pregnant or not. There has never been conflict here because an essential feature of guilt is the intention to commit a crime. In the case of abortion wrongful intent is an essential element of the criminal action. This is specifically mentioned in the statute which governs the present legal position in respect of abortion here.

Professor Kieran O'Driscoll of the National Maternity Hospital and also of the Department of Obstetrics and Gynaecology at UCD has stated that during his 35 years at the National Maternity Hospital no woman was every deprived of treatment appropriate to her condition because she was pregnant. The men and women in the street are well aware of this fact and they do not easily confuse legitimate medical treatment with deliberate action undertaken for the specific purpose of killing an unwanted child.

If a person does a good act and something foreseeably bad happens, that person is not liable. If there is a dangerous fire and someone must be saved from an [493] upstairs room, a fireman may go up a ladder knowing that it could collapse and kill or injure a person below. He is not liable if an accident occurs. If a girder fell and two men were trapped the foreman might find that if it were shifted one way it would kill the first man, while if it were shifted the other way it would kill the second. Does he stand by and say that since both cannot be saved both must be allowed to die? Of course not, although this is what the Attorney General seems to think a doctor would say. If both cannot be saved, then every effort must be made to save one.

There are people who, though they are against legalised abortion, are also against the referendum. I have to assume that those people have reasons for this attitude which satisfy them but it must also be said that there are those who favour legalised abortion in Irish hospitals and are prepared to conduct a vociferous campaign to introduce it here. These people are also solidly against the holding of a referendum and against the democratic process which involves the vote of the common citizen. The people who would wish the law to be changed so that women could have abortions in any maternity hospital are afraid of the steel door that may come down as a result of the referendum. Their wish is not so much to influence the vote of the people as to prevent the people from exercising the right to vote.

We have been told many times that the amendment could be divisive on religious grounds. Do the people who hold this view regard the statutory measures which illegalise abortion as being divisive on religious grounds? I take it they do not. The Minister for Health seems to be one who holds that view. I wonder by what intellectual path some people travel which brings them to the conclusion that a measure that would guarantee the continuation of an already existing statute, which they themselves do not identify as being religiously divisive, should itself be regarded as religiously divisive.

Are there Members in this House or the other House who feel that precious public time and resources would be [494] expended to no useful purpose on this amendment? In the course of his speech the Minister for Health stated:

Many have commented on the deplorable waste of resources which will be involved in conducting a referendum on this issue at this time when the scarcity of resources has forced painful decisions upon the Government with regard to the availabilty and expansion of valued services. As Minister for Health I am acutely aware of the potential benefits of the alternative uses to which the resources concerned could be put.

In my opinion public time and public resources could not find any more worthy area of endeavour than the safety of the voiceless. Surely that should not be a matter of argument; it is a matter of values.

People ask why there is a necessity for an amendment to the Constitution. As it now stands the Constitution does not contain any specific protection for human life before birth and only by such an amendment can we be certain that the existing ban on abortion will not be removed as a result of action in the courts. The referendum will give the people rather than the courts ultimate control over policy in this area. Abortion is prohibited by the 1861 Act. Like any other law in this country, this could be changed by the Oireachtas, although I think it is unlikely. However, a change in the law could come about through the courts without the people or their elected representatives being consulted in any way. Abortion could become legal as a result of a decision by the Supreme Court. As we know, sometimes to our cost, there need not be an unanimous decision of the court. Three out of five judges would be sufficient.

I listened carefully to what Deputy Kelly had to say last week about our legal system. I am not a legal expert, a Cheann Comhairle, but I know you are.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Maybe that is overstating it.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  I take a tremendous [495] interest in anything Deputy Kelly has to say about the legal system because he is very fair. I take issue with the Minister for Health when he states:

It is abundantly clear that any attempt to change the law in this regard would meet, rightly, with the overwhelming opposition of Irish society, not least as reflected in the membership of this House.

I question how any attempt could meet with the overwhelming opposition of Irish society. There could well be marches and protests but if abortion becomes legal as a result of a decision of the Supreme Court it will be too late to do anything about it. Some people may say this might not happen.

Speaking on Wednesday last, 9 February, Deputy John Kelly said:

Naturally lawyers will differ: they could not live if they did not differ and my opinion is no better than that of the next lawyer. However, I want to state my opinion in so far as a judgment of a future likelihood is an opinion. I think there is not the smallest chance that Chief Justice O'Higgins, Mr. Justice Walsh, Mr. Justice Griffin, Mr. Justice Hederman and Mr. Justice McCarthy will at any time interfere with or strike down the old legislation which penalises abortion. That is a guess based on observing the Supreme Court at work, which is my special interest and hobby. In so far as I can measure these judges — and I know them personally — there is not the slightest chance of it happening. I cannot foresee what a generation of judges will do 30 or 50 years from now. I concede freely to the Pro-Life Amendment Group and the other groups who take a very sincere and understandable interest in the matter that they are quite right in saying that public opinion here can change rapidly, and has in fact changed rapidly. The McGee case which was decided in 1973 most certainly would not have been so decided 20 years previously. If the Supreme Court had been asked in 1953 to strike down that section of the Criminal Law [496] (Amendment) Act, 1935, one would have been laughed out of court. One would have found it difficult to get solicitor and counsel even to raise such a case. I would not like to be positive about what might have happened had it been raised in 1963. If one were lucky with one's High Court judge — I will not mention names — the High Court in 1963 might have made a decision similar to that made by the Supreme Court in 1973. However, I would not like to guess whether it would have got through the Supreme Court at that time. I admit freely that the climate of opinion changes, and that that is a very good instance of changing opinion which was reflected in the judgment of a court.

Having listened to Deputy Kelly last week and read his contribution on numerous occasions since, it appears that he feels, as most of us do, that Irish constitutional law has developed to such a stage where the outcome of a constitutional challenge to the present legal prohibition on abortion cannot be predicted with any degree of certainty. It must be clear that the only way to make certain that abortion does not become legal in Ireland in the coming years is to write into the Constitution an amendment which reinforces the existing law against abortion.

Many people have asked if the EEC could impose abortion legislation here. Would this not require a change in the Treaty of Rome, something which could only take place with the unanimous agreement of member states? We could veto any such proposal. In the case of the European Court of Human Rights about which we have heard so much, decrees of that court cannot override the Irish Constitution if they conflict with it, or can they? If those facts are true then they surely represent another reason for the inclusion in our Constitution of a clear statement of the right to life of the unborn which no Parliament, or court, here or elsewhere can change in any way.

In November 1982 Fianna Fáil in Government proposed the following amendment to the Constitution: “The [497] State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” That wording was endorsed by Deputy Garret FitzGerald, leader of Fine Gael when in Opposition. He promised that if elected to Government he would accept the same wording and hold the referendum before 31 March 1983. In the course of a letter to the Pro-Life Amendment Group, dated 6 Novemeber 1982, he said that as a result of a unanimous decision of the Fine Gael Parliamentary Party — perhaps the Ceann Comhairle, a member of the parliamentary party at that time, can confirm this — they were committed to introducing this amendment in Government and having it put to the people before 31 March next. He said that this referendum would not be delayed by any other consideration.

In an interview on the RTE programme, “Today Tonight”, on 4 November 1982, Deputy FitzGerald said that before endorsing the wording he had taken legal advice on it and he thought it was the best amendment “we could get”. I should like to inquire if that legal advice came from the person who is now Attorney General. Every person expected that that solemn promise by Deputy FitzGerald would be kept. The wording had been approved by the legal advisers to the last Government and by the legal advice given to the Taoiseach when he accepted it last November. Claims have been voiced lately that the amendment could somehow bring in abortion but they are spurious claims. The suspicion that it is all a ploy to discredit the acceptable wording and, indeed, to bring in what might be termed as weaker wording cannot be ruled out. It would be sad if abortion came to Ireland through the deliberate tardiness of a Government already solemnly pledged to bring in the pro-life amendment.

Let us look at the sequence of events since November. What has happened since then? Deputy FitzGerald has been elected Taoiseach and he has had to weld [498] together a party which includes conservatives, intellectuals, liberals and, perhaps for the first time in his political career — I make that statement in the best sense — he is faced with having to make a decision which will alienate some of his party colleagues and supporters. Hence we have a plethora of systematic knockout punches to the amendment prepared by Fianna Fáil and accepted by Fine Gael in Opposition. Is it a coincidence that one liberal Fine Gael Deputy was the first to voice concern about the amendment, that hours later he was followed by Labour colleagues, including members of the Cabinet, and that this public relations exercise was compounded by the statement of the Minister of Justice followed by what are confused and muddled legal opinions of the Attorney General? The most serious aspect of it as far as I am concerned — I imagine it concerns the Chair as a legal person — is that the Minister and the Attorney General——

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  The Deputy should not endeavour to bring the Chair into the debate.

Mrs. Geoghegan Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I want to keep the attention of the Chair. The most serious aspect is that the Minister, and the Attorney General, in turn forecast that the Director of Public Prosecutions would be making a statement about the matter. As a person with no legal qualifications I should like to ask the Minister——

Minister for Justice (Mr. Noonan,: Information on Michael Noonan  Zoom on Michael Noonan  Limerick East): On a point of order, I should like to ask the Deputy to give the quotation from any statement I made to that effect.

Mrs. Geoghegan Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I do not have the actual quotation but if the Minister says he did not make such a statement I will accept his word. I was referring to a television programme last week but I am not sure on what night it was shown.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): To my mind I did not make any such statement.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  I accept the Minister's word.

[499]Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): Is it not customary that when a Deputy reads a quotation that the source of the quotation should be given?

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  I was not quoting.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  I do not think the Deputy was quoting but if she was she would have to give the reference.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  I am aware of the position with regard to quotations but I was not quoting. As a person who does not have legal qualifications I should like to ask the Taoiseach, or whoever wishes to reply, if the Director of Public Prosecutions has a role to play in this matter or if he is only making a statement at the instigation of the Government. The striking feature of the statements of the Attorney General and the Director of Public Prosecutions is that they have helped only to further confuse an already confused situation.

Take the statement by the Director of Public Prosecutions that the present wording could make it difficult for him to institute prosecutions. When the Minister is replying, perhaps he could clarify for me whether prosecutions by the Director of Public Prosecutions are instituted under the Constitution or under the law. I do not want to believe that the Government — and I certainly do not believe it of the majority of the Deputies in Fine Gael — are embarking on a sophisticated scuttling of this amendment. They do not accept our wording. They know what they are about to propose will be unacceptable. Therefore, one has to ask the question: What then?

The Government are assured of the full support of Fianna Fáil for the present wording of the amendment. The last thing this country wants now, or at any time in the future, is to make a political football out of a tremendously genuine desire on the part of the vast majority of the people to enshrine in our Constitution a simple but unassailable right to life of the unborn.

Mr. J. Doyle: Information on Joseph Doyle  Zoom on Joseph Doyle  I am concerned about the emotional atmosphere which has been generated outside this House on the [500] debate on the proposed amendment to the Constitution and the very considerable fear that anyone who expresses opposition to it is branded an abortionist. I regret that this should be happening and I want to dissociate myself from it.

I also regret the method by which this amendment has been brought before the House. It is wrong that at election time, groups, no matter how well-intentioned their motives are, should pressurise political parties into entering into an agreement to change our constitutional law. My colleague, Deputy Kelly, dealt at length and very well with that point. I fully concur with what he said.

People who support the anti-amendment campaign say they are not expressing a view either for or against abortion. I trust that those who are opposed to the amendment will respect my views in the same way as I respect theirs. This is my first address to this House and I speak on this Bill from a very deep personal conviction about the dignity and value of human life. Human life begins in the womb and must be protected and respected from there on until death. I speak on my own behalf and on behalf of the majority of the Irish people.

For me the issue is a simple one. The unborn should have the same right to life as the born. In the amendment the State acknowledges the right to life of the unborn and guarantees to defend and vindicate that right. Respect for life at all stages is not only a Christian principle but also a human principle. Respect for life is engraved in the heart of man, in his conscience and in his sense of personal responsibility. In taking a stand for the sacred character and absolute rights of the unborn, a person is at one with the deepest convictions of the human conscience.

It is my belief that the embryo foetus possesses a fundamental right to life from the moment of conception. From that moment the foetus is already provided with all the genetic elements which will shape its future development as an adult person. As Deputy O'Hanlon said this morning, this is more than a potential human being; it is already a human being with potential, complete with every [501] genetic detail, unique, individual and unrepeatable.

People who support abortion speak as if the unborn had no rights. The United Nations Organisation in 1959 declared that the child, because of its mental and physical immaturity, needs special care and safeguards, including legal safeguards, before as well as after birth. One of those involved in the test tube baby experiments said that in crushing unwanted embryos he was conscious of destroying human life.

Protection for unborn life should be part of society's whole commitment to the improvement of the quality of human life. There is a strange contrast in modern society between, on the one hand, the genuine compassion which lies behind the movements to abolish capital punishment and to ban nuclear arms and, on the other hand, the killing of the unborn. A responsible caring society must say yes to human life at all stages, and safeguard and improve the quality of that life.

The question has been asked: is this amendment sectarian? Because the majority of the Irish people are Catholics and the Church anti-abortion and pro-life, some people can easily label the present amendment as being sectarian and divisive. They argue that it offends against the principles of pluralism. The principles of pluralism are valid and must be respected in many cases. The question is: is abortion a case in which pluralism can be applied? The pluralistic thesis on abortion does not seek to argue that particular attitudes towards abortion by various denominations of people are right or wrong. It holds that the law should not select between different views but allow them all to be held, that those who consider abortion to be right are free to have an abortion while those who consider it to be wrong are not free to have an abortion.

The difficulty with this approach is that the right to choose abortion is at the expense of denying the unborn the right to life. A pluralistic society can be neutral about many things but it cannot be neutral about fundamental rights. In protecting the rights of the unborn the State is not being sectarian. The present legislation [502] prohibiting abortion could be challenged at any time on the basis that it offends against pluralism. While it would appear that the Constitution guards the right to life of citizens or persons, the attitude of the Constitution to the unborn is not clear. Could it be maintained that at present the unborn have no legal rights, no legal existence and are constitutionally unprotected? The answer to that question is yes. For that reason it is necessary to ensure that the unborn are no longer exposed to that risk.

In dealing with the text of the amendment, I wish to make it clear that I do not believe any form of wording is sacrosanct. If the wording proposed by the previous Government, and accepted by the present Government, is defective, we must change it to ensure that the purpose of the amendment is achieved. On the other hand, I wish to be clearly identified as someone who will not countenance the abandonment of the principle of a constitutional prohibition on abortion under a smokescreen of manufactured doubts.

Two major questions are raised about the proposed wording. First it is suggested that the word “equal” when applied to the mother's right to life may cause difficulties of interpretation. For my part, to say one person's right to life is equal to that of another is meaningless except in so far as we are all held equal before the law. The right to life guaranteed by the Constitution is always circumscribed by circumstances such as the right to self-defence which may permit the ending of one life in order to protect the life of another or others. The same choice may sometimes have to be made in gynaecology. To suggest that the rights are equal means very little, if anything, especially in circumstances where preserving one life can end the life of another. I would prefer to let the phrase “the right to life of the mother” stand on its own without qualification.

The second objection is the lack of clarity in the word “unborn”. This has been described as an adjective and unnecessarily ambiguous. I cannot accept that it is necessary to add a noun to this adjective. If the phrase means to cover all stages of development, from conception [503] to birth, it would be ungainly to qualify it by a phrase like “the embryo”, “foetus” or “child”. If every stage from the fertilised ovum to fully developed child before birth is correctly termed “unborn” then it seems to be a suitable phrase. I also suggest that the word “unborn” might mean capable of being born and thus restrict the protection offered by the amendment to a viable foetus. I am advised there is no foundation for such a view. Subject to the deletion of the word “equal”, a legal novelty which gives rise to some misgivings and concern, the amendment should stay much the same as it is.

Another matter of grave importance is the suggestion that an alternative wording should be sought which would restrict the Supreme Court in its interpretative role in this area but which would leave the hands of legislators unfettered. Any amendment which begins with the phrase “no court shall ...” or similar words might let the Supreme Court down while allowing this House to alter the law without reference to the people. If this is the kind of amendment being contemplated, I should warn its proponents that I would find it unacceptable.

Anyone who knows the real value of social conditions will be well aware that the mere passing of an amendment to the Constitution is unlikely to materially affect the rights of the unborn. No amendment can save a life or improve the lives of our children. The legislation of abortion, either by legislation or court decision, could cost many lives. To do justice to the illegitimate child — a phrase which I dislike using — much more than an amendment to the Constitution is necessary. The stigma of illegitimacy must be removed and the prejudice of centuries which termed the child filius nullius, the child of nobody, must be overcome. We are no better than latter day Mr. Bumbles if we beat our breasts regarding abortion and yet allow illegitimate children to be branded as second class citizens. Charles Dickens found many people in Victorian society who combined an air of morality with an attitude of indifference. I cannot help feeling that [504] the passing of 150 years has made very little difference. A campaign to protect the unborn is futile unless it marks the commencement of a revolution in our attitudes towards those born out of wedlock. There must be a clear and unambiguous acceptance of the recent proposals of the Law Reform Commission to this end. The stigma of illegitimacy must be removed as soon as possible and I was glad to hear the comments of the Minister of State, Deputy Fennell, in this regard.

Anyone who urges commitment to the amendment, without a similar commitment to caring for and giving equal treatment to the child born out of wedlock, does not deserve an audience. It is alleged that the present amendment, if passed, will not stop the traffic to England of those who seek abortions outside the State and will not stop other abuses connected with abortion. The argument, if true, should not prevent the need for a constitutional declaration on the rights of the unborn. Those who are deeply opposed to abortion are saddened by the number of Irish girls who go each year to England to have pregnancies terminated. This is caused by the irresponsible attitude of many Irish people in their personal relationships and I regret that the male population have a great responsibility in this matter.

This amendment highlights the need for individuals, families, churches of all denominations, local communities, local authorities and the State to be much more supportive, compassionate and caring towards those with difficult or unwanted pregnancies — especially the unmarried mother who may see abortion as the only solution to their great distress.

The amendment enshrines a principle shared by the great majority of the people. The deletion of the word “equal” which I regard as ambiguous, would remove the genuine obstacle to acceptability. I urge this House to proceed with the debate in order to place this worthy constitutional reform, amended as I have suggested, before the people at the earliest possible time.

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  The Minister for Health, in his statement, gave the following as [505] one of the reasons why he is against this amendment:

In this case, however, I have to say that in my view the extensive, considered and dispassionate debate in the community as a whole which should precede any initiative to amend our Constitution, has not taken place.

In all my time as a public representative, I have never come across any debate so extensive or intensive as this, so I do not think that the Minister for Health is right when he says that a debate has not taken place. The only curtailment that might have been put on this debate was when the Government stated, about two weeks ago, that it would get only one day in this House. Deputies in Fianna Fáil were very disturbed about that statement but subsequently, apparently for various reasons, it was changed and the debate was allowed to continue.

I am very saddened and discouraged at present by what is happening because of the disagreement within the Coalition Parties. They obviously have come to the conclusion, in very recent times, that they want to change the words as they are. We all know that the Taoiseach, Deputy FitzGerald, gave his full commitment to it. those words. He had legal advice at that time and he was fully committed to it. Why, one day, is he fully committed to the words and, shortly afterwards, totally against them? The whole debate is becoming more divisive and it is causing much trauma and uncertainty among people. It is most unfortunate that the Government did not honour their commitment to go ahead with the pro-life amendment as worded.

Those who say the amendment was not necessary and that it should not have been started in the first place are partially right. Had the discussion not occurred the legislation we have would protect the unborn to a certain degree. Up to two years ago there was no real demand for this amendment, but at the moment the situation is such that it must go ahead because of the discussions that have taken place. The people must be given [506] the opportunity to vote in the referendum.

Bringing into the discussion medical and legal argument as well as the churches has been divisive. I am perturbed for a number of people in the Protestant churches who have been labelled, whether pro- or anti-abortion. I would say that all the Protestant community are against abortion. The Rev. Sydney Garland, on behalf of Ministers of four Protestant denominations, stated emphatically that the Protestant community were in favour of the referendum. I will quote a few sentences from his statement:

As a group of Protestants we wish to welcome the proposed amendment to the Constitution of the Republic of Ireland. We utterly reject abortion as a great assault on the sanctity of life. We rejoice in the continuing protection which the Pro-Life amendment would ensure for the unborn child. We agree that the unborn as well as the born have a right to life. We accept that the life of the mother is also protected in the wording of the amendment. We reject the criticisms of the amendment put forward in some recent Protestant statements.

It is said that this amendment will not help in any way the women who go to London for abortions. I agree it will not, but it will certainly prevent an increase in the number of women who go to London for abortions.

As the Minister of State, Deputy Fennell, stated, we must be sympathetic in many circumstances where a woman or girl makes this awful decision to have an abortion. As a society we must take the blame for much of this. We can understand the situation and have sympathy for the people concerned. For instance, I can imagine the distress of a mother who suddenly discovers that her 14- or 15-year old daughter is pregnant. What a dilemma not only for the girl but also for the mother and father of the girl. The mother sees the life of her daughter ruined. To go through a pregnancy at that age must be very traumatic not only [507] for the girl herself but for the family also. Perhaps in the circumstances the mother might be tempted to go to London with her daughter, but what will that solve? What good will it do? Killing the child will not help the young teenager. Society should give back-up support to that family. They should be given advice and help in every way. The family should not be left in the situation that they see no other way but to take their daughter to London for an abortion.

I read a case recently in the newspapers of a women from a rural area who went to London for an abortion. She had five young children, twins who were retarded and a husband who batters her. The woman comes back from London relieved of the unwanted pregnancy, but what does she come back to? She comes back to the five children, to the twins who are retarded, to the husband who beats her up and probably to another pregnancy in a few months time. It is her situation that is wrong. The fact that she goes to London for an abortion is not doing her any good. Probably it is only putting her into a situation of guilt, psychiatric upset or emotional upheaval that will only add to her dilemma. That woman should be given help with the husband who is battering her and also with her children. There are many cases where we can at least understand and sympathise with women. As the Minister of State said, it is not an easy decision for any woman to have to take.

I was glad to hear the Minister of State reiterate her full commitment to this amendment. I know that not everything written in newspapers is correct but there is also no smoke without fire. The Minister of State was quoted as having made the following statement in America.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Will the Deputy please give the full reference? This is necessary for the record.

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  It was in a newspaper dated 9 September 1982. It is a quotation from a newspaper.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Will the Deputy [508] please give the name of the newspaper and the date.

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  I am afraid I do not have the name of the newspaper. I think it was the Irish Independent.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): On a point of order, is the Deputy quoting from a statement by Minister Fennell or on a report of a statement which Deputy Fennell has already denied?

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  The Chair wants to ensure that the procedure regarding quotations is carried out. If the Deputy purports to quote, then the Deputy must give the source of the quotation and the reference.

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  I do not have the name of the newspaper but I think everyone knows what I am talking about. It was most unfortunate for Fine Gael and the Taoiseach that the paper quoted what the Minister of State said in America. I know she denied it but what she was trying to realises there must have been some truth in what was quoted. However, I will take the advice of the Chair and will leave it at that.

Fianna Fáil accept 100 per cent the wording of the amendment but according to the Attorney General certain words in the amendment might have the opposite effect. One of them is the word “unborn”. If the Attorney General is serious about this — I suppose he must be — I would accept “unborn” as being from fertilisation and if he would like to insert in the amendment “the unborn is a child from fertilisation” I would accept that. However, when he says that “unborn” could mean that a foetus between the 25th to the 28th week becomes a person, at what moment does it become a person, a child? Is it at the 25th, 26th or 27th week? A birth could take place at 20 weeks and perhaps the child could survive so you cannot put a definition on any week, day, hour or minute between 25 weeks and 28 weeks. There would be a possibility that an abortion could be allowed up to 28 weeks when the child could be born at 24 weeks and could live.

[509] The Attorney General has also referred to the words in the amendment “with due regard to the equal right to life of the mother”. I do not think that any doctor finding himself with a problem regarding a mother and child will stand by and do nothing. As Deputy O'Hanlon said this morning, he would certainly do everything he possibly could to save both and he would not stand back and allow the situation to arise where he could do nothing for either mother or child. I think the Attorney General is talking a lot of rubbish.

The Minister said that he had an open mind about the wording of the amendment. Almost everyone agrees with the principle. The wording is all-important and must be accepted by all sides including representatives of all the Churches in Ireland and the Irish Council of Churches in Belfast. The majority if not all of the Churches of all denominations agree with the present wording and it is only right that the present Government should honour their commitment to continue with the present wording and have this amendment in our Constitution, as they have agreed, by the end of March. Nobody would criticise them overly if it were to go a couple of weeks beyond that. The people, 58 per cent of whom are in favour of this referendum and will vote in favour of the amendment, will not criticise the Government if the referendum should be a few weeks beyond that time. I urge the Government to get the referendum to the people as soon as possible.

It has been said that perhaps the European Parliament or the Court of Human Rights in Europe could at some time put us in a situation where legalised abortion might come to Ireland. Many people say it is not possible that that will happen, but I would like to read a page from the Southern Health Board, County Cork, stating what took place in the European Parliament recently. “As recently as February 10——

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Is it a statement?

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  Yes, it is from a statement from the Southern Health Board, County Hospital, Bantry, County Cork, and it says——

[510]An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  The Chair does not want to be difficult, but could the Deputy please give an identifiable reference? The whole point of giving a reference is that anybody who would want to refer to it could do so.

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  There is a name at the top of this page, Mr. S.C. Baker, MCh, FRCS, County surgeon in Cork.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Is it a letter?

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  It is not a letter.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  If it is an article could we have the name of the article and the date?

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  You are being very difficult, a Cheann Comhairle.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  I assure the Deputy that the Chair is not making difficulties for the sake of making difficulties, but I know I am right in saying that the point of giving a reference——

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  It is just a statement about what happened recently. It refers to a debate in the European Parliament held as recently as 10 and 11 February 1981.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  It is a statement made by Surgeon Baker on——

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  He is explaining what happened in the European parliament and he says——

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): On a point of order, I would like the reference and the date of publication. If the Deputy is quoting she should at least inform the House as to where she got the extract. If she got it from a publication I am sure she knows the publication. If she got it from somebody else she should ask whoever gave her the quotation where it came from.

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  It is not a quotation. It is just a report of a meeting held of the European Parliament.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Is it a statement [511] made by Surgeon Baker in the health board?

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  It is not. It is just a document setting out a situation that happened at a meeting of the European Parliament and it says — as I read it the House will see——

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): On a point of order——

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Wait. I repeat that the point of giving a reference is to enable anybody who wants to check it to do so and therefore it must be an identifiable reference. If the Deputy cannot do that I suggest that she may paraphrase or say that Dr. Baker said——

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  All right, I will paraphrase it as if it was not here. I will say what he says.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  That is more satisfactory.

Mrs. Lemass: Information on Eileen Lemass  Zoom on Eileen Lemass  As recently as February 1981 the European Parliament held a lengthy debate on the position of women in Europe and the Chair was taken by the President, Madam Veil, who herself brought in legislation for abortion in France. So many people were at that meeting, so many women wishing to hear what was being said, that extra chairs had to be brought to the Chamber for this discussion. They listened to a report of an ad hoc committee which recommended that women should have freedom of choice for abortion and stressed that the progress achieved in Europe in this regard is a contribution to the emancipation of women throughout the world. It was recommended that any pressure which can be brought to bear through Community instruments in those matters on those member states where abortion legislation is still unsatisfactory would be justified. It proposed the harmonisation of legislation on abortion in all member states of the EEC on the basis of three principles: women living in the Community should make their own decisions, prosecution for abortion should cease [512] and the voluntary termination of pregnancy should be free.

That that type of situation obtains so close to us as in the EEC of which we are a member is very alarming. Pressure could be brought on this country to legalise abortion and the only safe, secure and positive way to ensure that it would never happen is to enshrine the provision in our Constitution. The people have a right to enshrine that in the Constitution and there should be no ambiguity whatever about the fact that they have that right. The opportunity to exercise it should be given to them as quickly as possible without all this argument, back-tracking and uncertainty taking place at the moment. The Taoiseach agreed with Fianna Fáil's wording of the amendment. He gave his full commitment to it. We have given our full commitment to supporting it and it is very sad that the Taoiseach and the Minister for Justice should change their minds on this issue. I accept their statement that they are fully committed to the referendum. I cannot see why they cannot still be committed to the wording.

Mr. L.T. Cosgrave: Information on Liam T. Cosgrave  Zoom on Liam T. Cosgrave  If the Bill before the House is approved by both Houses of the Oireachtas it will give the people an opportunity to vote on it in a referendum to enshrine in the Constitution protection for the unborn child, which is not specifically referred to in the Constitution at the moment. There has been much talk about the specific wording produced by the previous Government prior to the general election and the change of Government. It has been suggested that there may be some doubts in relation to the wording. If there are it is important that we establish this at an early stage, that we change the wording if necessary or we proceed as heretofore.

The Minister for Justice indicated some reservations about it, both in the House and outside it. He is obviously concerned that any wording placed before the people is watertight. I know the previous Minister for Health and the Opposition party are also concerned that any wording which goes before the people is watertight. That is why the Minister for Justice has invited comments [513] from all the various interested people, the main Opposition party and the various other groupings who are concerned that a referendum should be held, to discuss this matter. It is important, if there are any doubts, that we establish these at an early stage. Every person has his or her own opinion in this regard and while the present wording might be regarded as sufficiently adequate by 99 out of 100 courts there might be one court where it might not be adequate. We have obviously to think far ahead because if this change is enacted by the people it will remain part of the Constitution until it is changed by the people.

We are, as indicated by the commitment given by the Fine Gael Party prior to the election going ahead, and having introduced the Bill in the House, it is intended to hold the referendum at the earliest possible date. As most people know, legislation has to be discussed and passed through both Houses of the Oireachtas. A certain time has to elapse before a referendum is held in the case of a constitutional Bill like this. I assure Opposition Members and people outside the House of our party's commitment in this regard. If it goes past 31 March as long as we adhere to the referendum, as long as we keep to the principle of the referendum and as long as there are sufficient safeguards in whatever wording is decided on, that will count at the end of the day.

I am very glad that our Leader recognised that the unborn were not given enough protection in the Constitution. This was also recognised by the Leader of the Opposition. Both have a commitment in this regard to see that enough protection is given in the Constitution to the unborn. The Constitution gives protection to the life of children and adults but it does not give any specific protection to the life of the unborn child. That is the reason why both of them were committed to enshrining in the Constitution a specific protection for the unborn child. It is only by having such an amendment that a case will not arise some time in the future when some legislation might be overturned by a court. It is most unlikely that the present Supreme Court would [514] overturn some legislation but at some time in the future it is certainly a possibility. What seemed unthinkable 15 or 20 years ago has now unfortunately become a fact in other countries and abortion on demand and killing the unborn child literally at will have become part of the make-up of various countries. I hope this is not something which will happen here.

Abortion could become legalised here in two ways. It could become legalised by the Supreme Court rendering present legislation unconstitutional, allowing certain loopholes and eventually allowing abortion in certain cases initially and finally on demand, as has happened in other countries. The other way abortion could become legalised is if both Houses of the Oireachtas were to legalise it. This might seem unlikely and I suppose today it might seem impossible to many people but if the unlikely, particularly in politics, is possible it could happen. I hope, if there has to be a change in the wording and when the Legislature are looking at any possible substitution, that both those avenues for the introduction of abortion will be closed. I hope if the referendum is passed by the people it will ensure that if abortion is ever to become available here that we will have to go back to the people and get their consent to have abortion legalised. While it is most unlikely that the Legislature would legalise abortion it is possible. Both avenues I have referred to have to be taken into account in framing any wording which will prevent abortion.

This debate has been going on for a long time. I hope from now on there will be a consensus of opinion among the various interested parties and across the political parties because this is a matter which transcends all the political parties. There may be some people in the various political parties who feel that this referendum is not necessary. I hope the two main political parties — I know there are members of the Labour Party who are also committed — are committed to holding this referendum. If any difficulties arise we can all get down and discuss them. It is important that we unite in the face of certain people outside who are doing everything in their power to prevent [515] this referendum taking place.

We might divide into two categories the anti-amendment people. First, there are those who, while opposed to abortion, do not consider the amendment necessary. They have put forward various reasons for this, but I would not agree necessarily with everything they say. There are others who, while claiming to be anti-abortion, are pro-abortion. These people should be exposed for what they are. They know that they will not get anywhere by going on a pro-abortion platform so their attitude is to introduce various elements into the issue to confuse it. They are introducing an element of subtle qualification in an attempt to prevent the referendum from taking place and they are engaging in all sorts of delaying tactics to this end. I should like to mention the coverage that has been given in the media to that sort of campaign especially in one national newspaper who have adopted a total anti-amendment campaign. This paper has carried most unbalanced journalism in regard to this whole issue. We might well ask whether the people concerned with that paper have at heart the legitimate interest of the Irish people. They are trying to dictate both to the Government and to the Opposition and to convince us that in some way a referendum of the kind proposed is in some way undemocratic. If we are not to be guided by the ballot box, how are we to proceed?

It is interesting to note how abortion has come about in various countries. In some of these places the concept of abortion would probably have been unthinkable 20 years ago; but in various ways, whether by legislation or by court rulings, abortion is now legal in many places. There are people who will say that this could never happen here, but unfortunately the position is that it could happen and possibly will happen if we do not push ahead with this legislation.

The anti-amendment campaign people have used tremendous resources and influences at various levels in their efforts to have the referendum postponed. One of the reasons they have put forward in support of their case is the cost of the [516] referendum. I should hate to think that we are beginning to equate the preservation of human rights with monetary considerations. While recognising that much new thinking is required in the whole area of sex education, we must also spend money in helping people who become pregnant but who do not wish to have a child. When we have put this legislation through we must concentrate on providing services for women who find themselves in such difficult situations. We cannot close our eyes to the problem.

It has been said that this legislation would not prevent girls from going to England to seek abortions. While that may be true, we must ensure that we will not have abortion here. Another charge that has been made in regard to the amendment is that it is sectarian. The saving of human life and prevention of the killing of the unborn are not the prerogative of any one religious group. They are a human race issue. The killing of unborn babies is to be deplored.

The Bill is designed to give effect to a commitment given by this party. Again, I assure Members of the Opposition that our party are committed to holding the referendum at the earliest date possible. It is important that we listen first to any doubts that may be expressed about the wording of the Bill. Then, if there is a problem, we must deal with it; but the referendum must go ahead so as to ensure the right to life of the unborn child.

The likelihood of legislation being introduced here to provide for abortion may seem remote but we only have to think back on the situation of the past 18 months when hung Dáils were the order of the day and when various pressure groups tried to influence the Government of the day, and perhaps did so, in relation to other matters. However, I should like to think that, in regard to the issue before us, any pressure that might be applied by any group holding the balance of power would be resisted. Regardless of what wording may emerge at the end of the day, it must be watertight in regard to the purpose of the legislation — the prevention of abortion whether by way of a Supreme Court judgment or by way of legislation enacted here.

[517] I look forward to the Bill being approved by the House and to the holding of the referendum at the earliest date possible. Some of those who are opposed to the amendment are the very people who seem to be continuously advocating peace and the avoidance of war in the interest of the preservation of human life. What could be more basic than a measure to preserve human life from the beginning?

Dr. Ormonde: Information on Donal Ormonde  Zoom on Donal Ormonde  In recent years there has been a welcome and a growing tendency in our courts to place special emphasis on individual rights and personal freedom. However welcome this trend, society and the State have an obligation to intervene in areas of potential conflict — for example, in cases where individuals in the exercise of their rights might be endangering the rights of their fellows. It is such an area of potential conflict that is envisaged and provided for in the Bill before us. In this measure we are inviting the electorate to accord to the unborn child a status which many presume is enjoyed already by the unborn. The wording of the amendment reflects as accurately as possible the clear wish of the overwhelming majority of our people and has been framed after wide consultation with leading and legal experts.

A number of doctors have levelled criticism at the amendment and have referred to it as an unwelcome intrusion into medical ethics. On the contrary, this legislation will act as an effective guarantor of the centuries-old ethical tradition which acknowledges the inviolability of human life from the moment of conception, a standard abandoned so conveniently elsewhere but which at least this country must preserve. It will not be enough for us simply to put on record by way of constitutional amendment the inviolability of the unborn child.

As a matter of urgency we must accept the challenge which follows from our decision, that of offering an acceptable option to the many thousands of women who each year travel to the United Kingdom seeking abortions. At present at least one in every two women faced with [518] the prospect of single parenthood, opts instead for termination in the United Kingdom. A clear commitment is needed to mobilise all the available sources and services to alleviating in so far as possible the complex social and other pressures which force an increasing number of our women to seek such a drastic remedy.

I have a major fear that this Government now intend to go back on their commitment to proceed with the referendum on the pro-life amendment. It now appears as if this war of words and the involvement of both the Attorney General and the Director of Public Prosecutions is a deliberate smokescreen used by the Government to confuse and upset the people in the hope that this amendment will simply go away. I want to refer to the intervention of the Director of Public Prosecutions in this issue. This is a grave matter and particularly distressing because I believe he does not have a function in this matter and that it is outside his area of responsibility.

Under section 2 (4) of the Prosecution of Offences Act, 1974, the Director of Public Prosecutions is defined as a civil servant in the civil service of the State. Under section 3 of the Act which deals with the functions of the director, it is stated in subsection (3) that nothing in this section shall affect the functions of the Attorney General in relation to any question as to the validity of any law having regard to the provisions of the Constitution. It is quite clear, therefore, that the director as a civil servant has no business interfering publicly in a matter of political controversy which is furthermore a constitutional matter in which the Attorney General has the sole right to advise the Government as the law officer appointed for this purpose under the Constitution. If the Taoiseach was a party to this being done by the director, then it shows a fundamental misconception of the Constitution on his part.

Leas-Cheann Comhairle, let me assure you and the Government that Fianna Fáil do not intend to let this amendment die like the many thousands of unborn children who are dying every day. In November 1982, shortly before Fianna Fáil left [519] office, we tabled the following amendment:

The State acknowledges the right of the unborn and, with due regard to the equal right of the mother, guarantees in its law to respect and, as far as practicable, by its laws to defend and vindicate that right.

This formula was widely accepted by all concerned as the most satisfactory solution to a complex problem. To the best of my knowledge the legal brains on all sides found the wording most acceptable. The Taoiseach on a number of occasions endorsed the wording and was committed to putting the amendment with this wording to the country by 31 March, saying that before he had endorsed the wording he had taken legal advice on it. Do we now presume that that legal advice which he availed of at that time, was not that of the present Attorney General? Must we presume, therefore, that the Taoiseach has a number of legal advisers who are giving him conflicting views? How can the Taoiseach have done such an about-turn on this issue? Can it be that the pressure are so great from within his own party and from his Coalition partners that he is no longer master of his own destiny?

What is this amendment all about? The 1861 Offences Against the Person Act deals inter alia with abortion (a) where a drug, for example, is self-administered and (b) where a drug or appliance is used by another person. In both instances the intent to procure an abortion is essential while, in addition, in the first case, where a drug or appliance is self-administered, it is necessary also that the person be pregnant at the material time. The 1861 Act could be set aside in three ways: first, by Act of the Oireachtas; second, by its being determined to be repugnant to the Constitution by the Supreme Court; and third, by decision of the Court of Human Rights in Strasbourg.

An amendment to the Constitution conferring rights on and protection of the unborn would protect the 1861 Act. Nothing more is intended. Fears have been expressed that it would be used to [520] prevent the prescription and use of certain forms of contraceptives and that in some way repressive action would be taken against certain clinics. Again I say this is not the intention and, indeed, I doubt if such action would be possible.

In connection with the interuterine contraceptive device — IUCD — for example, while there is a large volume of medical opinion in favour of the view that it acts as an abortifacient, there is considerable doubt as to the precise mode of action. It would appear to me that in any criminal proceedings the onus would be on the State to prove criminal intent, something which clearly is not possible. In the case of the so-called “morning after pill”, it would have to be established that at the time of taking the pill the woman was pregnant, believed herself to be so, and used the pill for the purpose of abortion, none of which in my view could be established in a court of law.

Concerning the wording, as far as I can gather the objections by the Attorney General have been raised against the words “unborn” and “equal rights”. “Unborn” can only mean human life from conception or fertilisation to birth, at whatever stage, and I believe the confusion raised by the Attorney General is continued in this. One could add the words “from conception” or “from fertilisation” but that would raise a furore from the users of the morning-after pill and the IUCD. It could then be said that the amendment was sectarian and so on.

The second problem in relation to the wording appears to be “equal rights”. This has always been the case under national law. In 1931 Pope Pius XI emphasised that both lives are equally sacred and this principle has always been applied from the medical ethics aspect. I believe the Attorney General's views are erroneous. My understanding is that Deputy Kelly finds the wording of the Bill satisfactory and he surely is the constitutional expert in the Government party. I do not see many Members in the House to refute that. I believe the introduction of the remarks questioning the words “equal rights” is divisive and just a red herring across the trail to confuse [521] the issue. What is wanted here is a constitutional amendment to protect the 1861 Act — nothing more — nothing less.

Fianna Fáil are totally committed to this amendment. We too, have taken legal advice and the situation is that the wording as contained now in the Bill is the most acceptable under the circumstances. There is no doubt that the amendment is needed because as the law stands now there is no specific protection for the unborn child. The amendment will not, as has been suggested by the Government, change the present legal position in regard to abortion. It will give essential reinforcement to existing law and will ensure that any future decision to legalise abortion in Ireland can be made only by the democratic vote of the majority at another referendum.

May I appeal to the Taoiseach, the Minister for Justice and the Government to let the wording stand, to let the referendum go ahead and allow the people to decide for themselves on this major issue? Please do not now try to cloud the issue and confuse the people. We need this amendment; our people are entitled to this protection. The Government will not be forgiven by the electorate if they once again do an about-turn on one of their pre-election commitments. The Government and the Minister for Justice have our assurance of full support for the amendment using the present wording.

Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  The previous speaker and proponents of this amendment to the Constitution have said that very many abortions are taking place at present in the UK. We all know that that is so, but if it is so, it is certainly not because our law permits abortion in any way; it does not. It prohibits it quite clearly and unequivocally. I understand that the cost of holding a referendum is about £1 million and the object of that exercise is alleged to be that it is necessary to introduce certainty into the law prohibiting abortion. However, irrespective of the formula of words chosen, whether as now before us or in a different form, the reverse effect, in fact, will be achieved. Our law is already quite certain, is fixed and has stood the test of time since 1861, [522] a period of over 120 years. No one to my knowledge has ever seen fit to challenge that law and, as far as I know, no individual person in the entire State has indicated his or her intention of even attempting to challenge the law.

If a writ or a plenary summons to challenge the existing law were to issue tomorrow morning, it would take over a year to achieve a High Court hearing and even longer again a Supreme Court hearing. The very earliest such a challenge could take place, if issued at all, to be determined by the Supreme Court, would be about the end of 1985. Yet, such were the pressures brought to bear by a small group and such was the response of the leaders of this country that a commitment was given to have legislation completed and a referendum introduced to bring this issue into our Constitution by 31 March 1983. That was a remarkable achievement by a small pressure group and, I am sorry to have to say, a poor comment on the leaderships that responded and deferred to it in the way that they did. Deputy Kelly touched on this aspect when he suggested that in the run up to a general election the political parties should not receive representations. I do not agree. It would be better if the parties received the representations, but showed enough backbone to resist, or defer, pressures in appropriate cases like this one, rather than bend supine in the fear — whether real or, more likely, imagined — of loss of a few votes.

Let us assume for a moment that some person did proceed to issue a writ and challenge the law, what would our Supreme Court likely decide? Would they decide, or might they, that the de Valera Constitution of 1937 permitted legalised abortion? Is it seriously contended that that is what our Supreme Court and High Court judges would determine? Deputy Kelly is a renowned constitutional lawyer and he put it this way, that there was not the slightest chance of it happening. As a practising lawyer for over 25 years, knowing the members of the Supreme Court as I do and having read many of their judgements, I would put it even more strongly. The [523] very idea that our Supreme Court judges would interpret that the Constitution of 1937 permitted legalised abortion is utterly preposterous.

To carry the hypothesis to its ultimate, let us assume for a moment that, by dint of some wild aberration, our Supreme Court judges did find for abortion, would not then be the appropriate time for Dáil Éireann to bring in remedial legislation? I find it quite remarkable, at a time of unprecedented economic stress, unemployment at an all-time high, industries and factories closing down daily, that so much valuable time in this House and so much effort and thought in the country are being deflected from the immediate, urgent, vital, pressing issues of now. This is a time, as never before, where the collective brains and political ability of this House should be directed to, and working overtime on, preserving what remains of our industrial base and providing useful employment, building houses for people who have no homes and providing support, financial and otherwise, for the thousands of children of deprived homes.

There is much talk here on this Bill of the rights of the unborn. Should we not also spare a thought for the rights of the born? If we did, perhaps many — or, at least, some — of those Irish women who travel to the UK for abortions might not do so if they could be assured here of supportive action, financial and otherwise. We have the remarkable situation that this whole debate is taking place under pressure, with a deadline date, not because there is any pressing, urgent need for a reform of the law on this issue — for abortion already is illegal — not because it would make any difference at all to, or in any way affect, the women who travel to the UK for abortions, for it will change little at all in that regard, not because it will do anything at all to provide supportive services for any of those women who travel to the UK but who might not do so if support were provided for them.

This whole measure is being discussed and debated, not on the basis of any existing facts or existing present situation, [524] legal or otherwise, that now faces the organs of Government here. It is based on a whole series of hypotheses, of things that might happen in the future. The first hypothesis is that some person at some time in the future might be minded to issue a writ to declare the Offences against the Person Act of 1861 unconstitutional. Sixty years have gone past in the State and nobody has done it yet, nobody has indicated that they intend doing it. That is the first hypothesis. The second hypothesis is that at some future date the Supreme Court of the day, perhaps in 20 or 30 years' time, might find that the 1937 Constitution of de Valera permitted abortion. The third hypothesis is that, if both those hypotheses came to pass, each of them more unlikely than the last, at that future hypothetical date, Dáil Éireann, the elected representatives of the Irish people, would fail to bring in the legislation that would thereupon become necessary to organise, put in order and regulate that branch of the law.

We have real enough problems on hands at present without applying our minds to hypothetical ones which are highly unlikely ever to arise and, if they did, when they arose would be the appropriate time to deal with them. Of course, the problems of 20 or 30 years hence would be for Supreme Court judges of another generation. I do not say that Dáil Éireann might not have to think ahead and apply its collective wisdom to what might happen then but, for the problems of 20 years hence, next year would be time enough to tackle, consider and deal with those. And if that situation arose, highly unlikely and improbable as it is, in my view the proper manner in which to deal with this subject would be to enact laws which would be debated and passed here in Dáil Éireann and not by means of constitutional amendment.

This constitutional amendment, if adopted in any form, whether with the existing or any altered words, will initiate a saga that will go on for a long time. In my view it will bring the matter into the ambit of the courts. There will be court cases aplenty on the subject then, something [525] which has been avoided for the last 60 years since this State was founded. The very objective of the exercise is supposed to be to avoid the matter coming for consideration before the courts, something we have successfully achieved for the past 60 years. In my view the reverse effect is quite likely.

The final point I want to make on this subject — but I regard it as no less vital and important than my previous one — is the question of the sectarian nature of introducing an amendment on this subject into our Constitution. The record of successive Governments from both sides of the House, in dealing with the minority religions, has been exemplary. Successive Governments have bent over backwards, beyond the call of duty, to meet the religious requirements, educational and otherwise, of the minority religions. As a member of a minority religion myself, we sometimes have a way of putting it like this — that we do indeed suffer from discrimination but reverse descrimination. By that we mean that facilities are accorded us out of all proportion to the numbers of the minority religions. For that reason, and having regard to the excellent record successive Governments of this State have had in the past in dealing with the minority religions, it would be a great pity if the great fund of goodwill that has been built up over decades would be dissipated by pushing through any constitutional amendment on this issue in the teeth of unease and indeed opposition on the part of the minority religions. They have made their position quite clear, that they do regard the proposal to introduce this subject into the Constitution as sectarian. There is no good saying that they should not, that it is unreasonable, that it is not a good idea. The fact is they do regard it as sectarian and have made their position clear on that. That is sufficient.

I do not need to spell out what will be the reaction to this issue in the North of Ireland. Irish unity is something to which we all aspire. I have no doubt that that cause will have suffered a setback, and for what? For what — because not one but a number of hypotheses are being considered and taken as likely to come [526] about while, in my view, none of these hypotheses has any likelihood whatsoever of ever coming to pass.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  At this stage in the debate it is useful to look at the origins of this constitutional amendment Bill before the House and to consider it in that context. The origins of the constitutional amendment arose around April of 1981 when the pro-life organisation had meetings both with Dr. Garret FitzGerald, the then Leader of the Opposition and with Deputy Haughey, the then Taoiseach. It is fair and accurate to say that at that time the Leaders of both the major political parties in this House accepted in good faith that there was a need for a constitutional amendment. I believe they both correctly perceived that the overwhelming majority of people in this country are opposed to abortion and that, within this House at that stage, there was unanimity on the part of members on all sides of the House that they disagreed with abortion. I believe that unanimity on the part of Members of this House persists to this day. I believe all Members of the Fianna Fáil Party, Fine Gael Party, Labour Party, The Workers' Party and our Independent Deputy, would share the view that they disapprove of abortion, they do not like abortion. Certainly I have not heard any Member of this House of any party at any stage suggest that abortion should be legalised or that the 1861 Offences Against the Person Act should be amended.

Therefore, in April-May 1981 there was a consensus view about abortion that still persists with us. I believe that Deputy Haughey and the present Taoiseach, Dr. FitzGerald, took the view at that time that, with that consensus view, with the existing legislation, it would be a relatively simple matter to frame an amendment of our Constitution which would, in a sense, copperfasten the legal position. I believe it was never anticipated by either of them that there would be any difficulty in finding an appropriate form of wording. It would seem it was an issue on which there was political consensus throughout the country.

But the matter became somewhat [527] more complicated after that. We went into the June 1981 General Election. When that election was over the Attorney General, Mr. Sutherland, discovered there were difficulties in framing the appropriate wording for an amendment of the Constitution. We then had an election in February 1982 and the Fianna Fáil Party returned to power. Deputy Haughey became Taoiseach again and requested two different Attorneys General to prepare a form of wording to be inserted in the Constitution by way of an amendment. It is my belief that both of those Attorneys General, although their periods in office were brief, found it extremely difficult to frame an appropriate form of wording and it is my understanding that four, if not five, possible forms of wording were proposed at various times by both of those gentlemen in order to meet the commitment which had been given to provide for a referendum on this issue.

It certainly became apparent before the February 1982 election that this was not a simple issue, that it was not a simple matter to put a form of wording into the Constitution which would reflect the existing law. It was perceived by different law officers appointed by different Governments that there were considerable difficulties which were never foreseen either by the present Leader of the Opposition or the present Taoiseach. I intend to address myself to some of those difficulties and to the wording of the proposed amendment. Before doing so I wish to look at the legal position and the reasons given for the need to amend the Constitution.

The present law in this area is to be found in sections 58 and 59 of the Offences Against the Person Act, 1861. These provisions have rendered abortion illegal since 1861 and provide for criminal penalties to be attached to those who carry out abortion. The word “abortion” is not used in that legislation but there is far more technical and detailed wording which requires a form of intent to cause a miscarriage and it is a wording quite different from that contained in the proposed amendment.

[528] It has been argued by the proponents of the need for a constitutional amendment that the need arises due to the possibility that one day our Supreme Court might find that one of the sections of the 1861 Act is unconstitutional and might find that there is some form of constitutional right to abortion. That, in essence, is the whole argument for this amendment. It is based on the proposition that at some stage the Supreme Court might find a portion of the 1861 Act to be unconstitutional. It is an Act that has been with us for over 45 years of the lifetime of the present Constitution. It has been with us since 1937 and no person has ever sought a declaration of unconstitutionality in regard to this Act. Whilst I accept that many of those who express the fear that the Supreme Court might act in this way sincerely believe this to be the case, I believe they are doing so without any clear understanding of our legal system or our constitutional law or the type of processes which apply in seeking to have an Act declared unconstitutional. They are expressing their fear without reference to the declared comments of the members of the Supreme Court in this area. It would be understandable if the worries expressed about the immediate need for the constitutional amendment were as a result of members of the Supreme Court, or even of the High Court, having indicated, hinted or suggested that one day they would find that there was some form of constitutional right to abortion. The only judicial comments in this area indicate the exact opposite. They were made originally in a form of litigation to which some people point as justifying the urgency of this amendment.

Only one member of the Supreme Court has ever commented in detail on this issue. These comments were referred to by my constituency colleague, Deputy John Kelly, but it is worth referring to them again. In the McGee case the right to marital privacy was declared which entitled married couples to have access to contraceptives and to plan their families. In that first case in which the Supreme Court declared that this right existed and spelled out what the right to [529] privacy was, Mr. Justice Walsh made it quite clear that the right did not extend to the right to abortion. He spelled it out quite explicitly to ensure that there would be no misunderstanding of the right to marital privacy, yet it is that right to marital privacy which is pointed to by some of those people who propose that this amendment is an immediate and urgent matter.

Even more recently in the case entitled G. versus An Bord Uchtála 1980, Mr. Justice Walsh returned to this theme and stated what he regarded as being the rights of the child, as did other members of the Judiciary. Mr. Justice Walsh stated:

Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child's natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child's natural right to life and all that flows from that right are independent of any right of the parent as such. I wish here to repeat what I said in McGee's Case at p.312 of the report:—“... any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence [530] against the common good but also against the guaranteed personal rights of the human life in question”.

There can be no doubt as to the judicial view of the right to life. There can be no doubt that the only judicial statements made in this area have quite clearly indicated that under our present Constitution the right to life is sacred. While accepting the sincerity of many of those who see the need immediately to insert this amendment in the Constitution, I believe that this opinion is not based on a clear understanding of what our courts have said to date on this issue.

Having referred to the McGee case, in which the right to marital privacy was pronounced by our courts and where the court were equally clear about the right to life, it is argued also that when the Supreme Court in the United States declared there was a right to marital privacy the Supreme Court in later years went on to expand on that right. In doing so the Supreme Court sought to provide, effectively, for a constitutional right to abortion. The fallacy of that rationale is that there is no similarity in the area of children's rights and family rights between our Constitution and the American Constitution. The American Constitution does not have any articles in any way similar or comparable to the family rights contained in Articles 41 and 42 of our Constitution, which rights were used by our courts to discover, interpret and declare the right to marital privacy.

I do not believe there is any possibility that our courts would interpret our Constitutin in a manner that would result in the Offences Against the Person Act, 1861, being declared unconstitutional. Deputy Taylor, and my colleague, Deputy Kelly, referred to the fact that as of now no constitutional proceedings of any nature have been instituted to challenge the constitutional validity of the 1861 Act. That is a point worth making in the context of what I will say later as to how I believe the House should deal with this issue. There are no constitutional proceedings in being. Deputy Taylor referred to the fact that if any such constitutional proceedings were commenced [531] it would take about one year to get them to hearing. Indeed, if any such constitutional proceeding were commenced by anybody it would take a good deal longer than a year for them to come to some sort of finality. If one issues a constitutional case tomorrow morning to challenge the constitutional validity of any legislation it would take a minimum of one year to find its way into the High Court. When it is finally heard in the High Court it will often take the judge who determines the case three or four months to write his judgment. Normally, it takes any constitutional matter at least another year to be determined by the Supreme Court, because if a statute is declared unconstitutional the practice here is that the Attorney General normally appeals against that declaration. I have no doubt that no matter what Government are in power the Attorney General of the day would appeal any High Court decision finding the 1861 Act unconstitutional.

There is no question of any overnight rush to the courts, of judges sitting secretly under candlelight deciding, without letting everybody know in advance or without any prior warning to the Government, that the 1861 Act was about to be declared unconstitutional. The feeling of urgency that exists about the issue, the feeling of the need for us to rush to the polls, is something that should be given careful consideration by all Members. Other than the proponents of the amendment who have made a strong case and lobbied politicians of all parties, as they are entitled to do, I have not heard any legal opinions to convince me of the urgency of rushing to the polls. Indeed, I have not heard a single high law officer of the State, in the persona of the Attorney General, appointed by any Government, Fianna Fáil or Coalition, suggesting that there is an immediate need for a referendum of this nature. I would be interested to learn if Members of the Opposition, who seem to think that there is an immediate need for us to rush to the polls despite the warnings that have been sounded about the difficulties that may be created by the wording of [532] the amendment, know of any high law officer in the State who has suggested at any stage that there is this immediate need or urgency.

Another argument that has been made about the need for urgency on this issue relates to a suggested possibility that the European Court of Human Rights in Strasbourg might at some stage make a decision under the European Convention on Human Rights declaring that there is some type of European human right to abortion. That is as much speculation as is the view of what our Supreme Court might do. At no stage has the European Court ever suggested that they would deliver such a judgment. There is no case before the European Court in which they might do so and, indeed, were a decision of the European Court in that area to cause some annoyance or aggravation to us all, it would not have any binding effect of any nature on our legal system. If the European Court declared any country to be in breach of fundamental human rights, while that would be a judicial proceeding, in real terms it would also be a form of political act. The workings of the European Court and the decisions made by it do not domestically bind any state in its own internal laws. It is up to a state to determine whether they wish to comply with those decisions.

There is very little, if any, possibility of the European Court making such a decision, but if the court did, no matter whether it was part of our ordinary law that abortion was illegal or whether it was part of our Constitution, that decision would not have any influence on us. Under our Constitution there is no possibility that our judiciary would declare the 1861 Act unconstitutional. However, I believe that if the amendment in its present form becomes part of our law — I have no doubt about this — rather than copper-fastening the continuation of the 1861 Act, rather than ensuring that abortion remains a criminal offence it will give rise to a serious and real possibility that the 1861 Act would be found unconstitutional by virtue of the provisions in the amendment before us for inclusion in the Constitution.

I am making that statement, not in an [533] effort to make some political point or to try to support the remarks of the Attorney General, but as a lawyer who has some expertise in this area and as a Member who has had some experience in constitutional actions. The simple view that was taken of this form of wording, before the Attorney General and the Director of Public Prosecutions made their comments, without a detailed examination of the wording being carried was that if one supported this amendment in a referendum one was anti-abortion but if one voted against it one was pro-abortion. That is one of the great ironies of the debate that has taken place so far, although in the last seven days a good deal more realism has been injected into the debate than we have had before. The irony is that I have no doubt, not merely from the interpretation the Attorney General has given but from the other interpretations that can be validly taken from the amendment, that if it in its present form becomes part of our Constitution it will essentially secure a constitutional judgment in the not too distant future requiring the House to enact legislation to permit women to have abortions.

Debate adjourned.


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