An Bille um an gCúigiú Leasú is Fiche ar an mBunreacht (Beatha Dhaonna le linn Toirchis a Chosaint), 2001: An Dara Céim (Atógáil). Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Second Stage (Resumed).

Wednesday, 14 November 2001

Dáil Eireann Debate
Vol. 544 No. 1

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Atairgeadh an cheist: “Go léifear an Bille an Dara hUair anois.”

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Deputy Boylan was in possession and he has eight minutes remaining.

[86]Mr. Boylan: Information on Andrew Boylan  Zoom on Andrew Boylan  I was making a point about sexual abuse of girls, boys and women. The sentence handed down in a case which came to light in this city involving a student and visitor has appalled people. There is no deterrent and this type of activity must be stamped out. Young girls and boys, and people in general, must feel safe going out to socialise. The recent two year sentence is an insult to those who suffered as a result of this crime. I question the mindset of the Judiciary when dealing with these people. The minimum sentence should be ten years with no time off for good behaviour but time added on for bad behaviour. It is important that people feel free. We have a wonderful society and a booming economy. People have more disposable income and wish to enjoy themselves as, of course, they are entitled to do and, in that context, any form of abuse is not acceptable.

It is important that there is support for women who find themselves pregnant and have a difficulty. If there is adequate back-up support, many women in crisis pregnancies might not seek abortion. I believe it is wrong and an element of guilt follows, with which people have to live. If such women or girls were encouraged to continue the pregnancy to full term and found they were not in a position to rear the baby, there are many families who are not blessed with children and who would be glad to adopt that child and provide a good home for him or her. Other families may wish to foster a child. Such arrangements could be made more widely if appropriate support services were available.

In the past, babies born outside of marriage were often given up for adoption, without the mother knowing the subsequent whereabouts of her baby. Children placed in those circumstances subsequently spent their adult years trying to find their real parents. That information should be freely available to them. Why the secrecy? If the mother wanted secrecy, one must also have regard to the feelings of the child or, in due course, the young adult. I know of a young man who had been adopted as a child and only discovered when he grew up that he had a sister, whom he spent many years trying to find. There was a wonderful reunion when they eventually met. The people concerned should have ready access to information to enable them to trace their blood relations. I can understand the position of a mother who feels she has to give up her child for adoption but I do not accept that she can deny the child the right to identify her or any other children she may have.

I have no difficulty with the wording of the amendment, as such, but I am concerned that the background to it is not as clear-cut as it might be. People who have spoken and written to me have raised difficulties as to when life begins. The Government has a responsibility to such people to clarify that issue. I grew up with the belief that life begins at conception but there seems to be another school of thought, which I find unacceptable. For that reason, my party takes the view that we should hasten slowly, rather than rushing into this referendum.

The debate in this House has been of a very [87]high standard and I have no difficulty with the genuine concerns which were reflected in the contributions to the debate from all sides of the House. Out in the public arena, there is a discussion, rather than a debate, in progress. Perhaps we now have a more open society and people are more balanced in their approach. It is important that people are very clear on the issues involved and I hope we will come to a conclusion which will be acceptable to the majority of people.

Minister of State at the Department of Health and Children (Dr. Moffatt): Information on Tom Moffatt  Zoom on Tom Moffatt  I wish to make a few comments on this Bill. So far, the comments on all sides of the House have been constructive, without any gross exaggeration or rancour, compared with what took place in previous debates on this issue in 1983 and 1992. The issue has been debated, on and off, over the past 20 years, thus indicating that we have not resolved the issue of abortion as yet. The current Bill approaches the issue on three different levels – constitutional, legislative and caring, or practical aspects. No legislation or constitutional changes, per se, will resolve the sensitive issue of abortion. Much anxiety has arisen since the 1992 X case which, in the opinion of many people, did not represent best practice in regard to psychiatric care of a pregnant person. All this evolved on account of the suicide issue, which has been the subject of some excellent contributions to this debate, particularly by the Leas-Cheann Comhairle, Dr. O'Hanlon. He cited a great deal of relevant information in regard to suicide in pregnancy. The Irish College of Psychiatrists is of the opinion that suicide is not a major threat in pregnancy and that pregnancy even protects against the very aspect of suicide.

Psychiatrists in the UK and worldwide have also come to the same conclusion. Dr. O'Hanlon cited several references in that regard. It is an easy option, in regard to the threat of suicide, to invoke abortion but the correct approach should be to treat the person who has suicidal thoughts. That is the way forward in terms of best practice in regard to psychiatric care. Undoubtedly, there has been a huge increase in abortion rates, as evidenced by the figures we have from the UK and this demands a new approach on our part. As the Taoiseach has said, we do not have the option of doing nothing – we must deal with the issue. Obstetricians and gynaecologists are unsure of the legal position that pertains in many emergency situations, in regard to the health and well-being of the pregnant patient. The indemnity situation has gone out of hand, particularly for obstetricians and gynaecologists, some of whom are paying £60,000 to £100,000 per annum for indemnity cover in relation to their practices. The proposed legislation sets out an acceptable position with regard to the rights of the mother and the unborn, with no fear or ambiguity regarding the preservation of the life of the mother in certain critical situations, especially from the obstetrical point of view. The College of Obstetricians [88]and Gynaecologists has said it accepts, in general, the views expressed in this Bill.

The definition of abortion is a pragmatic one, which will allow the use of the morning after pill and the intrauterine contraceptive device. This is a very important advance, particularly when facing cases of rape, incest and, especially, uncertainty about the possibility of lapses of mature sexual behaviour.

The advent of the crisis pregnancy agency is a very positive step. I know both sides of the House are claiming credit for this, but it does not matter who initiated this. Even though some people have criticised the fact that not enough money has been given to it and that the amount only represents £1,000 per person that might travel to the UK for an abortion. However, it is a move in the right direction.

It is an area that has much potential, especially in the preventative aspects of abortion. It will lead to better education, better care and will look at the problem in a very sympathetic way. We have the possibility of better counselling, proper medical care and above all it gives rise to the possibility of genetic testing for people who are at risk of abnormalities, whether physical or metabolic in nature. All these issues can be dealt with under this umbrella. This is the most important part that has been introduced to date. Some people have suggested that we have not moved forward from the position in 1983 or 1992. However, even if we move forward with the crisis pregnancy agency, it will be something to our credit.

Society in general has changed in the recent years. We have become more tolerant in our attitudes and this is for the better. Yet, that is not to say that deliberate induced abortion is ever right. Medical ethics demand primum non nocere: whatever we do we must not cause any damage or hurt. There is no place in obstetrical practice to do wrong to a woman or her unborn child. The fact that other jurisdictions may have lower standards or look at these issues in a different way, perhaps in the guise that they may be more humane does not augur well for that society which forgets the right to life of both the mother and the child. That is not to say we can afford to be too judgmental on these issues. Neither does it demand that we should provide the right to choose scenario that many have put forward. This would then be more argumentum ad hominem and would not be a real argument to the issue of abortion per se.

Mothers have the right to information and to travel. This might suggest that we are hypocritical, anti-woman, and two-faced and that we are running away from the issues and not facing up to our obligations. However this is not so. We can only lay down the law with regard to our own jurisdiction. What is done in other jurisdictions is not really our business. As legislators, we have no right to ask obstetricians, gynaecologists, midwives, anaesthetists and others in this country to do something inherently wrong in itself.

We have a problem and people say we should not export it. However, the measures incorporated in this Bill will help to address some of the [89]issues that surround abortion. We have come a long way since 1983 and 1992 with the right to information, the right to travel, the morning after pill and the intrauterine device. Even though it is disputed at the moment, the definition of abortion is more pragmatic. The crisis pregnancy agency, to which I already referred, has great potential. There are major attitudinal changes, which have taken place since 1983 and 1992 when this was previously discussed.

The Department of Social, Community and Family Affairs has played a major part in assisting people in devastating conditions with social problems. The Department of the Environment and Local Government has also played its part with regard to housing for individuals who find themselves in difficult circumstances. We are looking at disabilities in a different mode and we are coming around to addressing these issues in a more pragmatic manner. The Departments of Health and Children and Education and Science have also moved along during that time. We have a better society with regard to how we treat sensitive issues like abortion.

We still have difficulties and they will remain. Developments in human reproduction will give people better control over such matters in the future, without having to resort to abortion as the answer for unexpected hard cases.

The Bill represents the best effort of Government to tackle the problem of abortion and its many faceted complications in a caring and pragmatic manner. I hope the people will support the referendum when it comes about. It is a very difficult matter to deal with and the best efforts of Governments previously have not succeeded in getting it off the agenda. Nevertheless, what is proposed in this Bill is a genuine effort by the Government to move forward and give practical help by way of treating the whole issue.

The crisis pregnancy agency will prove to be very successful. If it prevents a number of people from having abortions, then it will have been a success. Constitutional change per se will not prevent abortion, but what is in this Bill will help to a certain extent. At the same time we are not being too judgmental with mothers who have to take the road to abortion in another jurisdiction. I hope we will provide for them and everybody in a pragmatic and caring fashion.

Mr. McCormack: Information on Pádraic McCormack  Zoom on Pádraic McCormack  Like Deputy Moffatt, I am pleased we are having a very rational debate on the abortion issue now. I am privileged to follow Deputy Moffatt and you a Leas Cheann Comhairle, both eminent doctors and to be joined in the Chamber by Deputy Michael Higgins.

We are now on the Second Stage of the Bill and Members are getting an opportunity to put their concerns and views on the record. To some extent, this is opening up a debate on the proposed legislation. That may serve some purpose in developing a debate outside the House. However, I am surprised at the lack of real debate on this subject, outside the House at this time, despite the fact that people have had the opportunity to study the proposals.

I have had very little communication, contact [90]or correspondence from my constituents on the matter. This could mean one of three things. It could mean the public is satisfied with the proposals. It could mean the public has very little interest in the proposals, or it could mean the public is waiting for the referendum to give its verdict. In other words are they waiting in the long grass? I do not know the answer to that, but there is a great silence out there.

Over the past two years, like other Deputies, I have received about 200 items of correspondence about this issue. This was mainly from people advocating a referendum to ensure constitutional protection for the life of the unborn and I have had some other correspondence on the matter.

Since the Government proposals were announced, we in Fine Gael have studied them seriously and have looked at the problem seriously. Our spokesman prepared a 20-page response seeking clarification on about 30 aspects of the Government's proposals. It is the duty of an opposition to question. We are not here to rubber stamp everything the Government comes up with. We have to examine it and question it and sometimes people do not understand that. We received a reply to our question from the Taoiseach's office which we accepted as a serious attempt to deal with our concerns, but were far from satisfied. We tabled an amendment asking that we do not proceed with the Committee Stage for a period of three months so as to get further clarification of the Bill's legal and other aspects which are causing us concern. I will support that reasonable amendment when it is put to the House at the end of this debate.

About 200 people contacted me on this matter in the past two years and, despite my communicating with all of them to seek their views on this Bill, only six responded and their reactions were mixed. They ranged from complete rejection of the Government's proposals in the belief that they will make matters worse, to seeing them as going some way towards protecting the life of the unborn. I cannot analyse why people are holding their counsel.

Many speakers dealt with the rights of the mother and rightly so. These are adequately dealt with, but the proposals also deal with the right to life of the unborn. The principal proposal attempts to deal with the court ruling in the X case. The removal of the suicide clause is the only reason for this referendum, but the people already decided in the 1992 referendum to retain this constitutional protection, which was then overruled by the Supreme Court. Some people, in the House and outside, interpret this simply and say that there are only two options if a threat of suicide exists – the woman can commit suicide or travel to England for an abortion.

A third option is to give the pregnant woman the support to carry her pregnancy to full term which is important. It can save both the life of the mother, which Dr. O'Hanlon dealt with earlier, and that of the child. Such support in the first instance comes from family and friends. Many in this House have given that support and would do so again if faced with the challenge. There should also be State support. Will the proposed refer[91]endum assist the estimated 6,000 women who go annually to Britain for abortions? The answer is that it will not.

Deputy Gay Mitchell, the Fine Gael spokesman on health, produced a private Member's Bill to assist mothers with crisis pregnancies. Dr. Moffat stated that it has Government support. We do not mind who takes credit for it as it was a genuine move by Fine Gael to address the issue of support for women in these circumstances. Women who experience crisis pregnancies need State support. For too long the State failed to establish proper support structures leaving the work to excellent but over stretched and under resourced voluntary organisations. Fine Gael proposes the establishment of such support through a care of the persons board which would support and facilitate any expectant mother experiencing a crisis pregnancy to bring it to full term. We have a tendency to seek comprehensive solutions to problems and to take no action until we have the magic formula.

Much of the debate is for or against a further constitutional amendment. Fine Gael played its part in the All-party Committee on the Constitution in relation to abortion. It was Fine Gael's input which resulted in the recommendation of a body to support women in crisis pregnancy and unborn children. Whatever the Government's final proposals on abortion are, we still need those support structures. Since the X case a decade ago, too much time was lost instead of establishing these support structures. As a matter of policy, our parliamentary party endorsed the creation of such a body.

No one knows the exact number of Irish women who obtain abortions outside the State, but clearly a significant number do. The media report it at 6,000 while statistics supplied to the Oireachtas committee by the office of national statistics for England and Wales show that in 1971, 578 women normally resident in the Republic had abortions and in 1999, it was estimated at 6,226. Some reports view these as under estimates. We have a responsibility to enact legislation to give whatever support we can to avoid these abortions.

Our Bill contains provisions for a board which should consist of 12 members, with a three year term of office, appointed by the Minister for Health and Children subject to the approval of Dáil Éireann. The Minister shall appoint a chairperson from among its members and the chairman shall at least annually, and when required by the Oireachtas committee appointed by both Houses for that purpose, appear before such a committee to account for the discharge of the board's responsibilities. Its role shall be to take all reasonable steps to ensure that any expectant mother resident in Ireland shall receive every necessary support, including advice, financial support, accommodation and health care to ensure that every assistance is available during a crisis pregnancy.

These are practical steps that our party wants to take and I am sure other parties will support them. The board's role shall be to support, [92]encourage and facilitate any expectant mother to bring her pregnancy to full term. We provide that this should include giving every reasonable assistance to a mother and child or children after the birth of a child or children. Support should also be extended to the expectant mother's family members or other persons connected with her at the board's discretion. Support or assistance from the board shall require the expectant mother's consent.

We are not above having these proposals improved or amended by any Government. Section 7 of our Bill provides that the board may by itself, or with the representative of particular groups or organisations that it considers appropriate, establish schemes to protect and support the expectant mother and her unborn child or children. The board shall have a chief executive who shall account to the Committee of Public Accounts in the normal way for moneys under the board's care. We make such a proposal because we expect the board to be generously funded but it must keep its staffing requirements and overheads to what is absolutely necessary to ensure maximum resources are made available to mothers in a crisis pregnancy.

Our proposal is to provide £50 million for this board over a ten year period. If £5 million per year does not meet the requirements then it can be reviewed by the Oireachtas committee to which the board will report. Fine Gael is committed to social justice. We are trying to bring about a real and practical contribution to addressing this serious problem. We believe the creation of the board as provided for in the Bill we have published will be a real and positive step towards caring for women with crisis pregnancies and their families.

Those are practical steps that can be taken. It is not simplistic to say the Government proposal condemns a woman in a crisis pregnancy to suicide or to go abroad for an abortion. There is a third option. We must all play our part in supporting, as far as practically possible, that third option, whether it be within or outside our families. If the support is forthcoming, I have no doubt that great help can be given to expectant mothers in what is termed “crisis pregnancies”.

There are some questions about the Bill as proposed. Several of our spokespersons have raised those questions. We hope that in the course of this debate we may be able to get answers to the queries we have raised about the legalities or otherwise of sections of what is proposed. As legislators, we want to be very clear that we support or reject Government proposals only after careful consideration and we are not doing it for any political or other ulterior motive. In some instances our motives in this regard may be misunderstood by the electorate. Some people look at this as a black and white issue, one is either for abortion or for the protection of the rights of the unborn. It is not a black and white issue. We do not want to make circumstances any worse than they are at present. In 1992, when the referendum to protect the life of the unborn under the Constitution was ratified, the electorate thought the issue had been closed. The Supreme Court ruled [93]otherwise. If the referendum is passed, do we want to have someone refer this to the Supreme Court?

There are many questions to answer and many questions still to be asked. That is why Fine Gael has proposed what we consider to be a very reasonable amendment. We propose that Committee Stage of this Bill will not proceed for a fixed period until we are able to get answers to the questions which are causing us such grave concerns. I will only touch on some of the questions to be asked. There is a lack of clarity in the proposed regulations and legislation. I want to highlight the 17th Protocol to the Maastricht Treaty and how it will sit if the referendum is approved. The 17th Protocol, inserted by the then Fianna Fáil-PD coalition, stated, “Nothing in the Treaty on the European Union . . . shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.” Article 40.3.3 states, “The 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.” This referendum proposes to insert Articles 40.3.4 and 40.3.5. The Taoiseach has stated that this legislation will have no EU law implications. The Government has changed its opinion on this issue at least two or three times. In the Dáil on October 9 the Taoiseach stated that the change to the Maastricht protocol was probably not necessary. He later stated that a change to the protocol was probably necessary. There are questions hanging over this regarding the EU. There is the issue of a fundamental charter or constitution being drawn up by the EU. There is also the issue of the EU incorporating the European Convention on Human Rights. I understand that some of the case law built up around the convention stresses the right to life of the mother as against the right to life of the unborn. A protocol that cites a particular Article of the Constitution applies only to that section.

There are several questions on this issue, I have asked only one that comes to mind. It is reasonable for Fine Gael to want those questions teased out before we have to decide what we are presenting to the people, or what our attitude will be when it is presented. Are we doing something that will help to protect the lives of the mother and the unborn child? Or are we doing something which might affect those rights more seriously and might leave us in worse circumstances than those that now exist? I do not know what the attitude of the people will be to this referendum. I am not getting much feedback on it. What happens if the proposals are defeated in the referendum? Do we introduce legislation to deal with the effects of the X case? Those are among the serious questions that must be addressed before we can come to a conclusion on what the Government is proposing.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I know that Members are busy with committees and, while I am reluctant to call for it, I think this is an issue on which there should be a quorum present.

[94]Notice taken that 20 Members were not present; House counted and 20 Members being present,

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): Information on Mary Wallace  Zoom on Mary Wallace  I welcome the Government's package of proposals for constitutional and legislative reform in regard to the protection of human life in pregnancy. As someone who campaigned extensively during the 1983 referendum campaign to insert the eighth amendment in the Constitution I am only too aware of how emotive is this important issue.

I fully agree with the Taoiseach that doing nothing is not an option. The only defence against the widespread use of the X case as a basis for social abortion is the ethical consensus in the medical profession and the terms of the 1983 amendment demand a legislative response from the Oireachtas to protect the right to life of the unborn child and the equal right to life of the mother.

It is obvious from talking to people from many different backgrounds in recent years that people are not happy with the current position of abortion in the Constitution. Citizens want something done about this issue. That is why I am delighted with this initiative as it gives all of us an opportunity to amend the Constitution to ensure the right to life of the unborn and to protect the life of the mother.

It is not right that the only defence against the widespread use of the X case as a basis for social abortion is the ethical consensus of the medical profession. The vast majority of people are not comfortable with this position and it puts an unfair burden on the profession. I urge everybody to take this opportunity to put things right and support the Government's proposal for constitutional change.

The outcome of the 1992 referendum left a widespread feeling of unfinished business and the electorate has demanded a response in terms of constitutional or legislative change or both. The Taoiseach's stated position prior to the 1997 general election was that the key element in establishing a national consensus and in creating a workable legal basis for protecting the life of both women and the unborn is to give the people a direct say in resolving that unfinished business. I am delighted for those reasons that the Taoiseach's commitment has been fulfilled and the electorate will be given an opportunity to put things right in the Constitution on this occasion.

The Government's package of proposals has resulted from detailed consultation and consideration since 1997 and could not be described as a knee jerk reaction or as being hastily cobbled together. There has been a lengthy, democratic and inclusive process. The Government established an interdepartmental working group in 1997 whose findings were considered by a Cabinet sub-committee and the process resulted in the publication of a Green Paper in September 1999. The Green Paper, in turn, was referred to the All-Party Committee on the Constitution, chaired by [95]Deputy Brian Lenihan, and there was general agreement during the committee's proceedings. Its report was fair, balanced and of value in educating and informing public opinion.

The Government then established a Cabinet sub-committee to consider the options and to prepare proposals for consideration and the all-party committee reported in November 2000. The outcome of these extensive deliberations has led us to conclude that no single sentence or paragraph can be inserted in the Constitution which by itself would amount to a balanced, effective legal response to the complex medical and legal issues which surround the protection of human life in pregnancy.

I am very much in favour as a result of our proposal to amend the Constitution and to bring in legislation which will allow us to strike a complex balance. There are a few important issues for the electorate, the first of which relates to what the amendment will do. I am satisfied the amendment, which will insert two new subsections in Article 40.3.3 of the Constitution, and the parallel legislation will address the complex issue surrounding the protection of unborn human life. At the same time the amendment ensures that pregnant women will continue to have access to all necessary medical treatment if problems arise in the course of their pregnancy.

It is also important, as the electorate goes to vote, that people understand the relationship between the referendum and the legislation. A key element of the proposal is that the amendment will only be made if the Oireachtas enacts this Bill, as drafted, within six months. This is only right and proper because it is imperative that the people know exactly what they are voting for and when they do so they will be clear on what the legislation will entail.

The Bill is in line with the third option outlined in the all-party committee's report. For the first time in legislation the Bill protects women and the unborn in pregnancy. It accommodates existing medical practice, which safeguards the life of the woman from exposure to real and substantial risk and it gives complete protection to the necessary medical procedures. It protects the life of the unborn in the strongest way and it protects against social abortion. It is important to deal in the debate with issues such as suicide and the right to travel. The Bill provides that the risk of suicide will no longer be grounds for legal abortion in this State. The Government believes that the conclusions in the report of the all-party committee do not support maintenance of the suicide risk as grounds for abortion in Ireland and I fully concur with this view. It should be noted that the risk of suicide has only been advanced as grounds for abortion in cases where the State directly or indirectly attempted to restrict the freedom of the woman to travel. The terms of the new law will protect that freedom to travel as was decreed by the people in the 1992 referendum.

Deputy McCormack spoke about the third [96]option and I agree with him. The Government has also shown its concern for women in crisis pregnancy by the establishment of the new crisis pregnancy agency by the Minister for Health and Children, Deputy Martin. The crisis pregnancy agency will draw up a national strategy to address crisis pregnancy, promote options other than abortion and provide post-abortion services. Crucially, preventative issues concerning education of young people and adults as well as services appropriate to their needs and lifestyles will be addressed.

It is incumbent on all of us to do all in our power to assist women in considering options other than abortion. A woman faced with a crisis pregnancy should be enabled to consider other options carefully and should be assisted before making a decision on the course of action she wishes to take. These are the issues that will be dealt with by the new crisis pregnancy agency.

The proposals for constitutional and legislative change regarding the protection of human life in pregnancy are part of the Government's response to the issue of crisis pregnancy. The crisis pregnancy agency will play a major role in the development of co-ordinated responsive and appropriate services. It is the Government's hope that over time this will reduce the instances of crisis pregnancies among Irish women and give women in this situation the widest possible range of assistance.

We all know that this is one of the most difficult issues that can ever face a person, be it in private or public life. Just because it is a difficult issue does not mean that we should run away from it. The proposals which will be put before the people represent what this Government believes to be a fair reflection of the point of view that abortion should not be permitted in this country but that we must also safeguard medical procedures required to protect the lives of mothers. The legal proposals are supported by the first comprehensive national initiative to help prevent unwanted pregnancies and to support women who find themselves in a crisis pregnancy.

I have never made any secret of the fact that I am a supporter of the pro life movement and that I do not want abortion on demand in this country. I am satisfied that the Government proposals offer very strong protection for the unborn and ensure that social abortion will not be available in Ireland. I welcome the fact that our legislation offers protection to the lives of mothers and at long last a Government of this country has had the foresight to set up an agency to deal with crisis pregnancy.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I have some sympathy for those who are asking for mature, rational, sympathetic and carefully thought out debate. Unfortunately, having been involved in most referenda dealing with matters like this for over a quarter of a century, history is against such an aspiration. The referendum will be bitter and divisive. The degree to which it is so may vary. My hope is like [97]theirs, that it will not be so, but it is likely that it will at least in some places be just that.

I recall just over 25 years ago when I was a Member of the other House being one of the co-signatories to a Bill to abolish the status of illegitimacy. On that occasion the Bill was defeated with only 12 votes in favour. That was in 1974-75. When I made the case for the rights of the child born out of wedlock I was accused by a Senator of the day of being in favour of “socialism under the sheets”. That was the phrase used. The suggestion was that the son of the big farmer in Meath or elsewhere had the right to go to the dogs. It was suggested in the Seanad that he could “sow his wild oats” with total impunity from any consequences of his actions. The real social danger of that time in the 1970s was that the farm would be put in danger by such a child emerging out of the darkness and claiming the rights to property that the other children in the family might have. It was an abject time and it was a despicable kind of debate.

At that time, such children were being sent into institutions which were not invigilated by the Departments of the day and we are now dealing with the consequences of the abandoned and unwanted children. Going back a decade earlier to my county of Clare, a district justice on a bad day would advise someone who had committed a crime that he should go to England. The defending solicitor would stand up and say: “Your Honour, he is going to England tomorrow”. We could get rid of our problems to England.

This is precisely what this proposal does – the difficult case of a woman in the greatest distress, prone to suicide being told this afternoon in the month of November 2001, that she is free to travel. Just as before, the women would be driven into the Magdalen home, just as before the women would be driven from their parish. Now the grounds of being prone to suicide that are accepted in medical practice all around the world will not be recognised in modern, progressive Ireland. The woman is told that she is free to travel. Why? Because the absolutists at home wanted to create a situation where they are able to exercise judgments which I would find difficult to make.

The distinguished public servant, Dr. Whitaker, whom I admire in so many different ways for his contribution to Irish life, chaired the 1996 expert constitutional review group. He considered the issue in detail and came to the conclusion that there was no consensus as to what any amendment of the Constitution should be, that not only should the Government legislate in line with the X case but that it was the only practical possibility that was available.

Now what is happening? We are going to the country to stop a woman prone to suicide from having facilities available to her that were available up to now. In addition, we are refusing to legislate. You, Sir, are chairing a Legislature – this Dáil – and this House has my respect. Is it [98]not an extraordinary situation where the Constitution is to be used as some kind of trailer before the main film? You have a referendum to throw into the Constitution something that may come to be from the Legislature in the future. All those who wrote about constitutions – people like Sartori, the distinguished theorist of constitutions – said that constitutions should have certainty. That principle is violated here. What is happening is that the Government being gutless refuses to legislate in accordance with the X case and, more than that, no member of the medical profession can tell me or has told me that legislation would not suffice to satisfy such medical practice as was taking place. On the contrary, they said if the legislation would only become coterminous with the constitutional provision, then in our far from perfect situation, we would be able to continue. However, the Government has decided to go to the people to ensure that, in the rare cases where a woman is prone to suicide, she will go to England.

I listened carefully to some of the previous speakers who said that what happens in another jurisdiction is none of our business. I have been interested all my life in human rights and defining them universally. What happens in other jurisdictions is our business. For example, it is our business if a pregnant woman in Afghanistan dies because the religious fundamentalists there refuse to allow a male doctor give her assistance. The rights of women everywhere are our business. What happens to women, children and men in any other jurisdiction is our business. In terms of the difficult case, having made a mockery of the Constitution and scandalously distorting the relationship between it and the role of the Legislature, it is typical that some then say it is fine as long as the woman is heading out of the country. There is a notion that this is fine because there are so few cases. If there are so few, why have a referendum? Why not legislate to deal with them?

Ms Fitzgerald: Information on Frances Fitzgerald  Zoom on Frances Fitzgerald  Exactly.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  The answer is that somebody promised someone a referendum. I have been through many referenda and recall the type of letters I received in the past. One of the reasons I called a quorum earlier is that I remember from previous discussions on these matters how wounding and awful it must be for the women involved. A previous referendum on divorce was rejected, not for any social, ethical or republican reasons, but on the basis of property rights. When it fell I remember thinking of all the women who had described their personal circumstances, but received a comprehensive slap in the face. Nevertheless, they had to continue on.

In those debates, and in this one to some extent, one did not hear much about the responsibility of relationships. This aspect is interesting because the people who sent postcards to me are the same people who tried to block sex education [99]in schools. They were in favour of a discussion of relationships in the education system provided it had nothing to do with sex. These people also opposed other moves, such as giving advice to children at risk about what they should do to protect themselves. It must be wonderful to live in a world of certainties where one hardly needs to look at one's body at all and where all relationships are in some etherised space with certainty. In that world everything is black and white.

One should think, however, of how much Irish history would have been different if proper social responsibility had been inculcated in men and women. I remember 1974-75 when I spoke in the Seanad. I recall the strong farmer coming up for a night at the dogs and to impregnate a woman and how upset he would be if he was reminded of the responsibility involved in bringing an unwanted child into the world, a child who would be slapped into an institution that could be described in Dostoevskian terms. This is one of the scandals of republican Ireland. They turned their eyes away, leaving the children there to be abused. When it was uncovered in one report after another they buried the reports and lost the files in the Department. This is the reality of the situation.

This is not a country where all children are cherished equally, where every act that could bring a child into existence could be regarded as one of love. It is not a country which encourages responsibility. Fundamentalist thinking has stood in the way of proper education in schools in the same way as it did regarding the original proposals in the mother and child scheme 50 years ago. This scheme would have protected the mother and child from the moment of pregnancy up to the age of 12 years, but it was shot down by an act of fundamentalism and gutless cowardice and interference by the medical profession.

The Bill is nothing heroic. It is seedy and abject. It arose from a half promise; it was fixed up. The attitude is that it can be thrown into the Constitution because the Constitution does not matter any more. How can anybody who believes in the sovereignty of the division of powers in terms of the balance between the President, the Houses of the Oireachtas and the Administration agree with it? We should remember that not only does it imply that we distrust ourselves and are incapable of legislating, but it suggests that future legislators in the House must have their hands tied because they cannot be trusted either. The result is to put a spancel on the hands of legislators.

If one thinks of legislation in the future in accordance with medical practice or changing scientific opinion, one will have no right to introduce it. Legislators who vote for the Bill that enables this referendum to take place are damaging the integrity of their own profession. The Bill implies that legislators today and in the future cannot be trusted. It also states that women cannot be trusted. It was suggested on the Govern[100]ment benches that a woman would affect proneness to suicide. That tells me much more about the Deputies who said it than it does about women. How many such cases have arisen? Where is the proof for their statement? I was a sociologist for 25 years and know that being prone to suicide is a very serious matter. It can be engaged with professionally; it is not invented. The Taoiseach, in his wisdom and in the little breaks he took apart from soccer, came to the conclusion that allowing the suicide ground would somehow set us down the slippery slope to what he calls social abortion. From where did he get that nonsense? It is another cheap justification for what is, in fact, a seedy exercise.

I welcome the consensus, however late for so many, that we should do everything possible to assist those experiencing what is for them a crisis pregnancy. We agree on this and should not be mealy-mouthed about it. If the Government wants to put resources into that area, I pay tribute to it, the commission which suggested it and everybody involved in it. This is the way forward. It will be good to have an agency that is not censorious. We should remember the assumptions that guided all the practice up to now, such as “the fallen woman.” Such women headed for the laundry and some did not come out again for 20 or 30 years. If their pregnancies went to full term, their children were taken away from them. Holy people – again, wonderful absolutists – said they must not even know where their children had gone and should put them out of their minds. This was the experience in Ireland and it is not over yet. The wounded are all around us.

The suggestion is that a change can be made to the Constitution in relation to legislation that will be passed later. How can the Minister of State square the existing Article 40.3.3º with the two new sections? I am not a lawyer, but, with the greatest respect, they are not consistent with each other. Perhaps the Minister of State could also tell us how the Government arrived at a penalty of 12 years for a woman who takes one of the non-allowed termination procedures and also how it arrived at the other penalties. Who gave the Government that figure? Who suggested there was a benefit in criminalising a woman in this manner? There is nothing republican about that move.

There are other minor points in the context of the sloppy way the legislation is drafted. One presumes from the text that it does not only apply to doctors who are registered medical practitioners. It appears it will not apply at all to non-registered medical practitioners, which is interesting. I want to refer to the suggestion by the Minister of State, Deputy Moffatt, that what happens in another jurisdiction does not matter. That was de Valera's view before the Commission on Emigration, 1948 to 1951, was set up. Prior to its establishment, de Valera comprehensively ignored Irish people who were forced to go to England. What happens in other jurisdictions is our business. What right has the Minister, Deputy Moffatt, to tell Irish citizens [101]they must travel to another jurisdiction in conditions of total uncertainty, over which they have no control, to seek a resolution of their problems?

I find the absence of trust at the heart of this proposal very interesting – an absence of trust in a woman who is likely to lie and say she is inclined towards suicide, an absence of trust in the Legislature or current or future legislators, an absence of trust in doctors and an absence of trust in the Constitution. Doctors and medical practitioners made their views clear. They said “legislate and get on with it”. That is what a real Government would have done. This Government, however, did the hucksters deal which meant it had to have the brand name of the absolutists on its actions. I sincerely hope these advocates will preface all their public comment on this issue by saying they were always in favour of helping women in these situations. I will then be able to look them in the eye and tell them that is untrue.

Institutions were packed with children who were abandoned to conditions which the Government of the day would not monitor. Why? Because it was more moral and worthy to choose not to know than to become engaged or involved. Men and women need a commitment to responsibility in their relationships. A woman undergoing a very distressing and difficult period needs compassion. She needs to be able to listen to a doctor's advice and to have all the options made available to her. She does not need to be told that some of the options are only available at the very earliest stages and, even following an act of violence, will get her 12 years in jail. Do not insult my intelligence by suggesting there is anything wonderfully caring about that.

The Government has come up with this little seedy sideways arrangement because it is too gutless to legislate for this matter. Members of the public will have a long time to consider this issue because there will be no rush to put this to the people other than from the fundamentalist wing of Fianna Fáil who will thump their breasts and operate like political mullahs throughout the country. The public, which is very decent in regard to these issues, has moved on, if the experience of my clinics is anything to go by, and this will show in the referendum.

Members of this House must sometimes stand up for certain issues because they are personally important to them. I respect people who hold a different view from me on this issue and distinguish between them and some of the people I have spoken about. I respect the views of people whose construction of the moment at which life begins, for example, leads them to a set of conclusions which they must follow in their politics. Unfortunately, previous campaigns were characterised by people who sought to impose their certainties in a situation which requires sensitivity and respect for complexity. I would not have the courage, which most theologians have lacked but which the Government obviously has, to define so precisely the moment of implantation from [102]which protection will begin and after which certain courses of action will be allowed or disallowed.

Minister of State at the Department of Health and Children (Ms Hanafin): Information on Mary Hanafin  Zoom on Mary Hanafin  I support the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, for three main reasons. First, it represents a serious attempt to come to grips with a very complex and sensitive issue in a forthright manner which confronts the real problems everyone agrees exist. We are not running away from these problems, nor are we seeking to make political capital out of them. Second, the Bill represents the culmination of an exemplary process of participatory democracy with consultation of the widest kind ever undertaken over several years which offered a variety of opportunities to people of all shades of opinion to have their views entered into the deliberative process. Everyone has taken the process seriously and it is now our turn, as legislators, to do likewise. People rightly expect this of us. Third, the Bill is based on a sustained effort to identify and build on the areas of consensus in the medical profession, among psychiatrists and in the general public.

This proposal represents an effort in good faith to address the difficult questions raised by crisis pregnancy and the unsatisfactory aftermath of the X case rulings. Given the sensitive nature of this issue, I hope the debate on this Bill will not be characterised by political rancour. We should give each other the space necessary to express our differing points of view and I hope the reasoned argument and temperate tone which, for the most part, has been adopted in this House will continue outside it. The challenge for Oireachtas Members is to talk through our differences on this vital issue with mutual respect with a view to working together to find real and practical solutions to the problems associated with crisis pregnancy.

As legislators, we have a grave obligation to underpin in law the constitutional guarantees given in Article 40.3.3º which states: “The 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.” This article sets legislators a difficult challenge, namely, to enact laws which give real legal effect to the guarantees of protection for the mother and the unborn. While we may not relish the prospect of addressing these issues, we were not elected to this House merely to do that which is easy or pleasant. We have a job to do and the people who elected us want us to do it even where, indeed especially where, it is difficult.

Oireachtas Members will not forget the passage of the X case rulings in which a member of the Supreme Court excoriated the Oireachtas for failing to enact the laws called for by Article 40.3.3º. This issue is unfinished business and this [103]Bill tackles the most difficult aspect of it, namely, finding a formula of words which, on the one hand, safeguards the lawfulness of essential medical treatment needed to preserve the life of the mother which unavoidably results in the death of the unborn while, on the other hand, making abortion unlawful. I support the Bill because I believe it makes a genuine, imaginative and original effort to do just that. The wording has achieved the right balance and it is time for us as legislators to grasp the nettle and finish the unfinished business of Article 40.3.3º by enacting a law which finds the right balance between the legal protection of the mother and the unborn.

When the Taoiseach undertook to refer this issue to the people following a process of consultation, nobody could have foreseen the extent of the public's participation in the process. Tens of thousands of submissions were made by experts and ordinary people from all walks of life, reflecting a huge range of different approaches. The extent of the public's participation in the process of consultation sent the very important message to this House that they consider this to be a matter of utmost importance and demand that we treat it with responsibility and gravity.

In other countries, abortion has been introduced by the courts or by Parliament, with little or no public participation in the debate. As was stated at the Oireachtas hearings on this issue, nothing has taken place anywhere in the world comparable to the process of consultation in Ireland. It is a sign of the healthy and vigorous state of Irish democracy.

A crisis pregnancy is a crisis for two reasons, because a woman needs considerable help and support to cope with it if she is to feel able to have her child and because having an abortion is a terrible option for a woman. If abortion were not such a serious matter, she would not dread having to undergo it. Foreign commentators who have spoken to people in Ireland about this issue have remarked on the unanimity of those on both sides who believe that abortion is a terribly difficult choice. This is an important part of the consensus in Ireland. There is almost universal agreement here that abortion is a terrible option and that we have failed a woman in a fundamental way if she feels she has no option but to have an abortion. We have abandoned such women.

The positive side of the consensus is the broad public support for the establishment of a crisis pregnancy agency. The agency will deliver a wide range of practical supports so that women facing crisis pregnancy feel they have real and positive alternatives to abortion. When calls are made for abortion as a way of confronting the reality of crisis pregnancy, we may forget to reflect on the enormity of the practice of abortion in other countries. Abortion on demand inevitably follows from the introduction of abortion. In Britain, abortion is legal up to 24 weeks and up to birth in cases of foetal disability.

Ireland has the advantage of being able to look [104]to other jurisdictions where abortion has been introduced in recent decades. Having surveyed the effects of these policies, can we really say that crisis pregnancy is confronted in a manner that addresses the needs of women with unexpected pregnancies and respects the right to life of the unborn child? Recent figures show that 6,000 or perhaps close to 7,000 Irish women seek abortions in Britain, which is a tragically high figure, although low in British or EU terms. There is every reason to be optimistic about the prospects of slowing or reversing this trend.

A study by Evelyn Mahon of Trinity College Dublin into crisis pregnancy identified a number of problem areas that prompt women to seek abortion. By addressing these problems, we can give women real alternatives to abortion. As it becomes ever more widely perceived that these supports are in place and are adequate, an increasing number of women will choose to avail of them.

We need to keep in mind what makes abortion such a uniquely sensitive issue. The reason it is so terrible for a woman is that it involves her in the loss of the unborn life she is carrying. If another life were not involved, the choice would not be so fraught, with the risk of emotional hurt and harm. As legislators, we should approach the issue with maturity and responsibility. Article 40.3.3º places on us the obligation of devising a law that protects “the right to life of the unborn”, “with due regard to the equal right to life of the mother”. Our task has been made more difficult by the X case judgment which restricted the protection offered to the unborn and ruled that a threat of suicide grounded a right to abortion without medical evidence. It falls to us as legislators to take the next step in redressing the legal situation left by that judgment.

The abortion right created in the X case judgment has no time limit, meaning that abortion is allowable up to and during birth. No medical evidence of any kind is required. The threat of suicide triggers a right to abortion, effectively facilitating abortion on demand. Nobody who shares the broad consensus identified at the oral hearings can stand over such a situation with their hand on their heart. The Government's proposal is an honest effort to find a meaningful and workable solution to the issue, after exhaustive deliberations. I ask people to recognise the situation that exists and I ask them to support fully this proposal.

The oral hearings heard expert evidence from a number of psychiatrists who made it clear that abortion is not indicated medically and psychiatrically in cases of depression and suicidal inclination. A Finnish study was quoted, which showed a significantly high incidence of suicide among those who had an abortion compared with those who had given birth. The study looked at women of child-bearing age who committed suicide. Specifically, it compared the number of women who committed suicide after having a baby and the number of women who did so after [105]having an abortion. It was found that the number of women who committed suicide after having a child was half the number of women of child-bearing age without a child who did so. The number of women who committed suicide after having an abortion was almost six times the number of those who had given birth. Having a baby was strongly linked to a lower rate of suicide and having an abortion was strongly linked with a significantly higher rate of suicide. As legislators, we should not disregard this expert testimony as we have a clear and compelling obligation to take it on board.

With all other Members, I have compassion and sympathy with women who feel that the only alternative to going through a crisis pregnancy is suicide. Equally, I believe that taking the life of the unborn is not the solution to this problem. I am satisfied that the removal of the suicide ground in the Government's proposal is in line with the consensus of psychiatric evidence presented at the oral hearings. It is the right way to deal with this element of the rulings in the X case.

The most difficult task facing the drafters of this proposal was to strike a balance between banning abortion and safeguarding the lawful availability of the medical treatment needed to preserve the mother's life, which may unavoidably lead to the death of the unborn. The balance has been successfully reached. The turning point in the process was a letter from the Institute of Obstetricians and Gynaecologists, submitted to the all-party committee in response to a request from Deputy Brian Lenihan. For the first time, the letter articulated the consensus among obstetricians and gynaecologists concerning the most difficult medical conditions that impact on pregnancy.

Article 40.3.3º of the Constitution was passed by the people, to whom the final say concerning questions of national policy rests, according to Article 6 of the Constitution. Article 40.3.3º requires the Oireachtas to enact laws to embody the equal right to life of the mother and the unborn, as far as practicable. The Constitution contains the two-patient model of pregnancy that has always informed the ethos of Irish medicine. A doctor treating a pregnant woman has not one but two patients, as he has to look out for both mother and baby. Article 40.3.3º provides a secure legal foundation for current ethical medical practice.

Unlike British abortion law, which makes abortion a crime and defines medical treatment where the unborn life is lost as a form of abortion, the 25th amendment of the Constitution will make legal history, by distinguishing between abortion and medical treatment where the baby's life is lost as a result of treatment needed to save the mother's life. The central passage in the letter from the Institute of Obstetricians and Gynaecologists is the template for the approach that followed in the Government's proposal. The institute saw a fundamental difference between [106]abortion carried out with the intention of taking the life of the baby, for example, as social abortion, and the unavoidable death of the baby, resulting from essential treatment to protect the life of the mother. The proposed constitutional amendment is based on the fundamental difference between abortion and treatment mentioned in the letter sent by the obstetricians and gynaecologists.

The Government's proposal does not redefine the beginning of life. It has nothing to say about life prior to implantation or treatment of the human embryo. These stages of human existence remain protected by Article 40.3.3º and this measure does not affect that. The passage of this Bill will not prevent measures which seek to protect unborn life at earlier stages from being introduced in the future. Legislation in relation to embryo research may be introduced, for example. It is important we acknowledge that this wording draws a legal line between abortion and medical treatment to protect the life of the mother, unavoidably resulting in the death of the unborn, for the first time. At the same time, it reverses the legal effects of the X ruling, which lessened the protection which the people wanted Article 40.3.3º to give to the unborn.

To restore the proper degree of protection to the unborn while at the same time protecting the life of the mother, the X ruling needed to be reversed. This Bill's proposed amendment does this in two stages. It excludes the threat of suicide as a ground for abortion in line with the psychiatrist's evidence presented at the oral hearings and it obliges the doctor, when working to preserve the life of the mother, to have regard also to the duty to preserve the life of the unborn, as far as practicable. It is because it manages to do all these things at the same time that I am confident that it will win the approval of the people as an honest attempt to put right the legal situation left in the wake of the 1992 Supreme Court ruling.

This legislation and proposed amendment is unique in that it refers legislation for support in the Constitution to the people. It refers it to the people who voted in 1992 and 1993. They are entitled to the opportunity to give their direct voice to this proposal which displays the sensitive, understanding and compassionate response required from all of us.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  I share the views expressed by the Taoiseach that we must strive to reduce the incidence of crisis pregnancies. I agree with him that the Constitution and the law are only part of the picture and that education, advice, care and compassion are often more important. I also share the view that it is essential that any debate on this issue should be conducted in a reasonable, calm and structured way so as to avoid division.

Deputy Jim O'Keeffe represented our party on the all-party committee of the Houses of the Oireachtas on the issue of abortion. The Fine Gael proposal to protect women in crisis preg[107]nancies has been accepted by all parties in the House. I thank Deputy O'Keeffe and Deputy Gay Mitchell who, in Private Members' time, brought forward a Bill to ensure that an agency would be established to assist women in crisis pregnancies. The Minister for Health and Children, Deputy Martin, has set up such an agency and I hope that Ms Olive Braiden and her staff will be successful. It is of more practical compassionate import to assist women who feel that, for one reason or other, they cannot carry a pregnancy to full term than to be involved in many of the controversial issues debated inside and outside the House.

It is against this background that Fine Gael has moved a reasoned amendment the main purpose of which is to give the Government additional time to reconsider the very complex issues raised, to give it the opportunity to bring forward clarification and to remove uncertainties. When the proposal was announced the Taoiseach wrote to me and said that he would provide any additional information or clarification I sought. I took up this offer and the Taoiseach replied to a series of questions I put to him, and I thank him for that. While these replies were helpful the Taoiseach will not be surprised to hear that his responses raise almost as many questions again.

The topic we are dealing with is complex. It has already, in our generation, engaged the best and brightest advice available to us in this country and indeed in other jurisdictions also. It is fair to say that no one has yet found a solution which commands widespread consensus, support and respect. So far in this debate the one thing that can be said about this proposal is that it has not yet established or commanded such support or respect.

I have some personal experience of this. I spoke on Second Stage of the 1983 amendment debate as the then Minister for Justice. I very specifically drew attention to the ambiguous nature of the eighth amendment. I indicated that it would have unforeseen and unforeseeable consequences. While there were those who disagreed with and criticised this view, experience indicates that what I said proved correct. I give precisely the same warning regarding this legislation. It is ambiguous and uncertain and its results are unforeseeable. It creates a new category of hybrid 'constitutional legislation'. It does violence to the fundamental balance between the institutions of Government and the courts as laid down not only under the 1937 Constitution but also under our first Constitution. This proposal is built on a foundation of corrosive mistrust.

The Dáil cannot be trusted so a Bill enacted by the Dáil must be enshrined in the Constitution so that it cannot be amended in this House by reference to the people. That is basically a vote of mistrust in the Dáil itself. The courts cannot be trusted either so this legislation has to be enshrined in the Constitution so that the traditional protection which the Supreme Court gives [108]to legislation which it deems to be in accordance with the Constitution is also removed. I suggest also that the medium and long-term proposal suggests that the people themselves may not be trusted in certain circumstances.

I do not believe that in the foreseeable future a substantive majority will ever favour the introduction of legalised abortion. I believe that views in the medical profession are substantially against the introduction of legalised abortion. I refer not only to the medical profession but also to those engaged in nursing and other health professionals. I fail to see from where the threat to introduce legalised abortion in this jurisdiction is coming?

My main objection to the proposal is that it is riddled with uncertainty. I will examine this from the standpoint addressed by many members of the pro-life movement. The classical pro-life position protects life from the point of conception. This legislation studiously and consciously ignores the entire area of conception from fertilisation to implantation in the womb. As the Minister for Health and Children said at the launch of the proposal “The proposals have no relevance to the unborn outside the womb.”

It has always been accepted, even by opponents of Article 40.3.3º of the Constitution, that the protection afforded by it is from the moment of conception. There is no definition of unborn in the Constitution, but no one has ever cast doubt on the proposition that the intention of 40.3.3º is to protect life from conception. The definition of abortion in the Bill before the House means “the intentional destruction by any means of unborn human life after implantation in the womb of the woman”. Therefore, the protection under this proposed act given to the unborn is from implantation, not from conception. This, it seems, sets up a conflict between two subsections of the new Article 40 of the Constitution and this conflict may only be resolved by a decision, in due course, of the Supreme Court.

On one hand, Article 40.3.3º protects life from the moment of conception. The Minister of State, Deputy Hanafin, repeated that and said that protection would not be removed. At the same time this Bill will only vindicate that right from the time of implantation. It seems that is putting a contradiction into Article 40 and the Supreme Court of the day in the future will adjudicate on that. Frankly, I cannot predict what the consequence of that adjudication will be. It surely opens a vista of uncertainty greater than the vista of uncertainty to which I brought the attention of the House when the amendment of 1983 was put before the House

There is a misunderstanding about the role of the Supreme Court in respect of the proposals before the House. Because legislation is being enshrined in the Constitution the Supreme Court cannot intervene to deem it unconstitutional. This cannot be referred to the Supreme Court by the President in accordance with the provisions of Article 29, but the fact that the Supreme Court is [109]not in a position to strike down the legislation on constitutional grounds does not mean that it is not free subsequently to interpret it in just the same way as it would interpret any other section of the Constitution. This Bill, if the referendum is passed by the people, will become an integral part of Article 40 of the Constitution and be subject to the full scrutiny of the Supreme Court on a case stated, on any issue which runs from those contained in Article 40.

The justification for the Government's rather odd definition of abortion seems to be to save the use of the IUD and morning after pill from legal challenge. Medical dictionaries define abortion in terms of the termination of a pregnancy before term. It is never defined in terms of the termination of a pregnancy after conception or after implantation. The same is true of normal parlance. One thinks of abortion as the termination of a pregnancy before the birth of the child – before the child goes to term.

Éamon Ó Cuív: Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  That is a surprising definition of abortion.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  Any medical dictionary gives the definition of abortion as the termination of a pregnancy in advance of the pregnancy going to term.

Éamon Ó Cuív: Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  In that case a Caesarean section is an abortion.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  Abortion is the termination of a pregnancy in advance of the pregnancy going to term.

Éamon Ó Cuív: Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  In that case a Caesarean section is a termination.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  I am not giving way.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Minister of State will have an opportunity to make a contribution.

Éamon Ó Cuív: Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  I am just trying to clarify matters.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  I think when I said “termination” the Minister of State thought I said “determination.”

Éamon Ó Cuív: Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  To terminate means to end. A terminus is at the end of a bus route.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  That is right.

Éamon Ó Cuív: Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  The termination of a pregnancy is the end of a pregnancy.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  The termination of a pregnancy by artificial means is an abortion because it terminates before a pregnancy has gone to term.

[110]Éamon Ó Cuív: Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  A Caesarean section is an artificial end of a pregnancy.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  We are not talking about Caesarean sections.

Éamon Ó Cuív: Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  It is a termination.

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Please allow Deputy Noonan to continue without interruption.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  I know where the Minister of State comes from and that I am making him uncomfortable.

Mr. J. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  Do we know where he is going? How will he vote on this?

An Leas-Cheann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  The Minister of State must allow Deputy Noonan to make his contribution without interruption. He will have an opportunity to respond shortly. Deputy Noonan to continue without interruption, please.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  The Government's definition is an odd one. This oddity is explained in the press statements by the Government when the proposals were announced. The Government justifies it in an attempt to save the use of IUDs and the morning after pill from legal challenge.

As a result of events yesterday, this exercise may have been unnecessary. Yesterday the Irish Medicines Board took decisions that will result in approval of the sale of Levonelle, a type of morning after pill. According to a spokesperson for the IMB the decision was made “in consultation with” the Institute of Obstetricians and Gynaecolgists and a senior counsel who examined the matter for the board. The IMB refused to sanction this product about six months ago, but has done so now on the grounds that it is a contraceptive rather that an abortifacient.

The Institute of Obstetricians and Gynaecolgists seems to have no ethical problem with this decision. The institute advised the IMB that it was appropriate to sanction this in due course for sale in Ireland. The eminent legal counsel retained by the IMB is of the view that the use of Levonelle is in accordance with Article 40.3.3 of the Constitution. Why, therefore, does the Government believe that it needs to include a non-medical and decidedly odd definition of abortion in this Bill to save the use of the morning after pill when it is under no threat from either the medical profession or legal opinion?

There are, of course, chemical abortifacients which act after implantation. It is possible to envisage a case being stated which would go all the way to the Supreme Court on the use of these products, and it is impossible to predict with any certainty how a Supreme Court might decide on whether such products acting in or around or shortly after the time of implantation would be legal in this jurisdiction. This shows the level of uncertainty that emerges when one examines these proposals.

[111]The proposed Bill will allow a medical practitioner to terminate a pregnancy if he forms “a reasonable opinion” that the termination is necessary to “prevent a real and substantial risk of the loss of a woman's life other than by self destruction.” If a medical practitioner were to terminate a pregnancy for any other reason, he would be liable to the criminal penalties under the Bill. It is not the criminal sanctions, however, which will primarily regulate the grounds on which terminations will be carried out by medical practitioners, it is the ethical code of the Medical Council which will regulate this in practice. Medical practitioners who transgress this code may be removed from the medical register. We know of examples where they have been so removed.

I have the highest respect for the medical profession and its code of practice. It has served us well in both medical and ethical matters. We know, however, from divisions within the council earlier this year that its code of practice may change. It has changed in the last 12 months and could change again in the future. This adds a further uncertainty to the proposal, because the grounds for termination are founded on a code of practice which may change and without reference to the Oireachtas or the people. It can be done internally within the Medical Council.

The X case has become central to this debate. I have reread the judgments in the case and the House may be interested to note that, at least, one Supreme Court judge, Mr. Justice McCarthy, suggested that the real and substantial risk to the life of a mother which would permit termination of pregnancy under Article 40.3.3 need not be an immediate risk. Mr. Justice Hamilton, the Chief Justice, had a different view. He said the risk had to be immediate, but Mr. Justice McCarthy stated clearly that it need not be.

If a medical practitioner on the enactment of this legislation were to form a reasonable opinion that a risk to the life of a mother was real and substantial, though not immediate, could not a future Supreme Court uphold that decision and would not this provide for abortion on a much wider basis than envisaged by the Government or anyone else in this House? I do not exaggerate the position when I say that what one Supreme Court judge might state in a judgment in one set of circumstances could easily become the majority view in another set of circumstances in a subsequent Supreme Court decision by the same or different individuals. It is this kind of unforeseen circumstance leading to a decision of the Supreme Court which has caused difficulty in the past. This is what happened in the X case, to the surprise of the strong supporters of the amendment of 1983.

It is not a sentence or a phrase, but a whole Bill that is now being grafted on to the Constitution, and the grounds on which the Supreme Court can adjudicate have been significantly widened and increased. I defy any Minister to state [112]with certainty what the consequences of this in all circumstances may be.

Deputy Gay Mitchell who is taking this debate on behalf of Fine Gael has argued very strongly that the powers vested in Ministers to change the manner in which the Bill operates create further uncertainty. Places where terminations may take place may be designated from time to time and the obligation to keep records may be altered by ministerial order. I agree with what he says and have nothing to add. However, taken with all the other uncertainties and ambiguities, this is another serious flaw in the proposal. A Minister may change the circumstances in which terminations may take place, but if the House seeks to amend the legislation, even if a technical flaw is discovered, it must go to the people.

I cannot summarise the ambiguities behind the Bill any better than to quote the Taoiseach's reply to some of my questions:

It is not the Government's intention to resolve the ongoing ethical debate as to whether procedures referred to in section 1(2) of the envisaged legislation amount to legal abortion or to termination. It is not the Government's intention to define what the term “unborn” means in the Constitution. It is not the Government's intention to define the point at which a “distinct human person comes into existence.”

The Taoiseach rightly says that all these issues are the subject of philosophical, moral and theological discourse, but they are not only the subject of such discourse, they are also the subject of legal discourse and central to what a Supreme Court in the future will or may decide. It is not possible to predict now how it may deal with these issues. The ambiguities, doubts and grey areas will cause us as much difficulty, emotional conflict and anxiety in the future as was caused by the X case and the C case.

In presenting the Government's proposal the Taoiseach made much of the fact that this was, yet again, an attempt to deal with the consequences of the Supreme Court judgment in the X case. I appreciate fully the legal implications of that judgment, but it is important to bring a sense of reality to bear on the situation. In the nine years since the Supreme Court case the one thing that can be said with certainty is that the prediction that the X case would open the floodgates to abortion was incorrect. The X case was followed by the C case, there may have been others, but if there were, I have not heard of them.

In dealing with the ambiguity of these proposals the Government has resolutely faced in both directions as to whether the proposal brought forward is reconcilable with Protocol 17 of the Maastricht treaty. The protocol provides: “Nothing in the Treaty of the European Union, nor in the treaties establishing the European Communities or the treaties or Acts modifying or supplementing these treaties, shall effect the application in Ireland of Article 40.3.3º of the [113]Constitution of Ireland.” Clearly, the protocol does not restrict Ireland's power unilaterally to amend Article 40.3.3º, but that is not my point. However, in the third edition of The Irish Constitution by J. M. Kelly, Gerard Hogan points out: “It is by no means clear that such unilateral amendment would automatically obtain the benefit of the immunity from EC law provided by the protocol as it is arguable that the reference to Article 40.3.3º in the protocol is a reference to that provision as it stood on 7 February 1992, the date on which the treaty on the European Union was signed.”

It is easy to envisage a conflict emerging between European and Irish law in this area. We know that abortion has been defined as a service under Article 60 of the treaty. What would be the situation if an effort is made to prosecute a person selling the contraceptive RU486 from outside this jurisdiction to consumers within this jurisdiction? I use the word “consumer” not to make light of the issue, but because it has been defined as a service and that is the parlance in which it will be dealt with in Europe. Is this form of contraception intended to be banned or not under the legislation and if it is to be banned, how will the Government ensure such cross-border sales within the European Union can be effectively prohibited?

I do not know if the House is aware, but I understand it is possible to access points of sale of contraceptive RU486 on the Internet and to purchase such chemical contraceptives with a credit card. Does the Government intend to take steps to prohibit the importation of contraceptive RU486 when this Bill is enacted? If it does, has it worked out its defence to a challenge, which could go as far as the European Court of Justice? I do not know what is the Government's intention, but this illustrates the point that it has not clarified the inter-relationship between its proposal and the protocol to the Maastricht treaty. This adds further uncertainty to the proposal.

I spare the Taoiseach the question of what precisely is the state of European law in relation to fundamental rights which may emerge in the introduction of the Charter of Fundamental Rights, now the subject matter of discussion. How would effect be given to rights to life, to health and protection to the rights of mothers and children by the European Court of Justice in the context of a more general human rights jurisdiction? Perhaps the Taoiseach will address this aspect in due course.

If a differentiation is being made between conception and implantation, a series of issues arise in relation to IVF treatment and embryo and stem cell research. If, on the one hand, the Government maintains that Article 40.3.3º still protects human life from conception, that gives rise to one set of circumstances, but if, on the other, the protection is only going to be vindicated from implantation, we have another set of circumstances, which, in terms of IVF treatment, [114]embryo and stem cell research, will put existing practice on its head.

Ultimately, we could have a far more unsatisfactory situation than the one we have today. There will be greater uncertainty and ambiguity. Fine Gael is trying to deal with this issue reasonably and moderately because we do not want division. We are asking the Government to give itself more time – another three months – to resolve the difficulties which have been brought to its attention, including by many whom the Government expected to support the referendum. I have outlined the main ambiguities and drawn attention to possible uncertain and unforeseeable consequences, whether coming from the courts, the Medical Council or the European Union.

We have much experience on this issue and know the traps and dangers of ambiguity and unforeseen consequences. The Minister should accept the reasoned amendment by the Fine Gael Party when this reading is put to a vote, either tonight or next week. The Government should give itself the time to resolve the issue. If it intends to return to the House with a fuller proposal, it should, at least, give itself time to remove the uncertainties, ambiguities and unforeseen circumstances obvious to those who analyse and think about it for any reasonable length of time.

Minister of State at the Department of Agriculture, Food and Rural Development (Éamon Ó Cuív): Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  Tá áthas orm go bhfuil deis agam labhairt sa díospóireacht fíor-thábhachtach seo. Iarracht macánta é seo déileáil le fadhb atá ann le fada an lá ach nach bhfuil réiteach sásúil faighte uirthi fós.

D'éist mé go cúramach leis an méid a bhí le rá ag an Teachta Noonan agus caithfidh mé a rá nach bhféadfainn teacht le cuid mhaith dá raibh le rá aige. Thosaigh sé ag úsáid foclóra tar éis go mbíodh muintir a pháirtí ag magadh fúinne agus foclóirí. Ach is léir, nuair a bhreatnaigh sé sa bhfoclóir nár bhreathnaigh sé ar ciall na bhfocal a bhí ann.

Bhí sé ag caint ar éiginnteacht. Sa saol seo níl tada cinnte. Ní féidir le haon Dáil nó le haon phairlimint rudaí a achtú go bhfuil céad faoin gcéad cinnteacht ag baint leo. Feicimid é sin gach uile lá. Ach ní stopann sé sin muid ag tabhairt isteach leasaithe bunreachta nó athraithe dlí ar an iliomad ceisteanna. Má chruthaítear níos maille nach bhfuil siad ceart, bíonn orainn iad a leasú arís. Ach níl aon amhras orm gur cuma céard a thabharfaí ar aghaidh faoin gceist seo go bhfaighfí éiginnteacht ann.

Tá ceist an-shimplí roimh phobal na hÉireann. Sé sin, an dteastaíonn uathu go leanfaidh an cleachtas leighis sa tír mar atá sé, nó an dteastaíonn uathu go mbeidh ginmhilleadh ar fáil sa tír mar atá sé ar fáil i dtíortha eile. Rogha an-shimplí é sin agus sin an rogha go dteastaíonn ón bpobal go gcuirfear os a gcomhair. Nuair a chuirfear os a gcomhair é beidh orainn, pobal na hÉireann [115]faoin mBunreacht atá againn, glacadh lena gcinneadh.

Mar atá cursaí i láthair na huaire tá dhá rud ag teacht salach ar a chéile. Ar an dtaobh amháin tá breithiúnas na Cúirte Uachtaraigh sa gcás seo agus ar an dtaobh eile tá an cleachtas leighis laethúil atá sa tír. Ní maith an rud é go mbeadh an dá rud sin díreach contráilte dá chéile.

Táimid ag caint, ar an gcéad dul síos faoi mháithreacha agus an brú a bhíonn orthu nuair a bhíonn siad ag súil le leanbh gan coinne. Tuigimid uilig nach cás éasca é sin do mhná agus go gcaithfear gach uile fhóirithint, cúnamh agus tacaíocht a thabhairt do mhná sa gcás sin. Sin an fáth go bhfuil áisíneach speisialta dá bhunú chun déileáil le cásanna mar seo. Táimid ag caint freisin, ar ndóigh, ar an ngin gan bhreith san mbroinn. Mar go chreidim go bhfuil an beatha tábhachtach ón am a gintear í go bás nádúrtha, creidim go bhfuil sé tábhachtach go ndéantar í a cosaint. Tá mé in aghaidh marú agus tógáil beatha gan chúis. Baineann sin le gach cinéal gnó den chineál sin. Cuireann sé íontas orm go minic go bhfuil sé liobrálach bheith in aghaidh phíonós an bháis agus go bhfuil sé caomhnach bheith ag iarraidh an leanbh sa mbroinn a chosaint. Is aisteach an seasamh é sin agus bíonn sé deacair orm é a thuiscint. Cé tá níos neamh-chiontaí ná leanbh sa mbroinn. Ag an am céanna, níl aithne agam ar éinne gur cás leis cás an linbh sa mbroinn nach cás leis chomh maith cás na máithreacha. Déanann an leasú seo iarracht é sin a chur ina cheart.

Deputy Noonan raised many questions which no doubt should be teased out fully on Committee and Report Stages. It is a difficult issue. Crisis pregnancies cause great stress and mothers expecting a child in such a situation are under great pressure. The issue is how we as a society think it is best to address such cases.

There seems to be a fundamental difference between the ruling of the Supreme Court in the X case and actual medical practice. This has persisted for some time and we would be in abrogation of our duty if we did not try to reconcile them one way or another. The proposal on which the people will adjudicate is an honest attempt so they can decide whether they want to preserve current medical practice and make sure the Constitution and the law match the practice or to introduce a medical practice which would inevitably lead to the abortion regimes we see in other countries. At its starkest that is the proposition which will be put to the people and it will be up to them to decide. Various details have been raised and no doubt they will be teased out on the floor of the House, as they should be, but I am happy this is a comprehensive and honest attempt to crystallise the issue.

Deputy Noonan queried the mechanism being used, and I agree it is an unusual mechanism to use in the Constitution. However, in the circumstances of the debate over the past ten years it is reasonable as time and again we were told this matter could not be put in a crystal clear manner [116]to the people in the form of a three or four line amendment to the Constitution. The people desire to be given a choice and to be as clear as possible in such a complicated issue in terms of what they are choosing. Therefore, the approach, novel though it is, is good and reasonable in the circumstances.

I was interested to hear Deputy Noonan say we should put the matter back further. I have not seen an issue given more comprehensive debate, thought, time and consultation, particularly since the Government came to power. There are obviously fundamental differences of opinion on the issue, and I recognise them and accept they are dearly held by people who have differing views. They will not be reconciled and all we can do on the two sides of that fundamental difference of opinion is accept the will of the people. The circle cannot be squared between those who think the medical regime we have is the right one and those who believe that an abortion regime similar to that which pertains in many other countries should be introduced here.

Other issues will have to be tackled in future, including that of the unborn outside the womb, but they are matters for another day and I understand they are currently being examined. I do not think it necessary to deal with those issues ahead of the discussions and consultations taking place on them. They are causing great concern and debate in this and other jurisdictions.

At times I am puzzled by the use of terminology. It is difficult because of the huge level of emotion to get involved in a debate about words and terminology. One of the great problems of the debate was that many meanings were given to the word “abortion”– some people include in its definition spontaneous abortion while others include medical treatments which most doctors would not consider to be abortion – and from a legal point of view it was necessary to define abortion. The use of the term “termination” also causes great confusion. Deputy Noonan was very interested in dictionary definitions, and to me “to terminate” means to finish, to complete.

I once asked an eminent gynaecologist whether there was any particular medical terminology for “termination” and he said “No”. I eventually found out that the word “termination” was lifted from a British Act of Parliament and introduced in common parlance here without having its origin explained.

While I do not wish to be facetious, the Opposition has been making great play of small points and possible ambiguities while itself using huge ambiguities. Every pregnancy terminates, and many are terminated by way of medical intervention before the natural completion of the gestation period. Therefore, the word “termination” on its own does not explain and is an obfuscation of what the debate is about. The Bill deals clearly with this issue. I have been accused of many things during this debate but I have not heard anyone say that if the mother's life could not be [117]saved by some means – an ectopic pregnancy is a good example – other than by the removal of the foetus, the pregnancy should not finish by way of medical intervention. However, the difference arises if a pregnancy is terminated and the unborn is viable. This legislation puts the obligation on the medical practitioner to try to save and sustain the baby.

To my layman's way of thinking, this is the fundamental difference between abortion as we know it throughout the world and current medical practice in this country. At all times all medical practitioners here make sure the life of the mother is sustained but, as far as practicable in all circumstances, they do so with the dual purpose of trying to ensure that the life of the unborn is also sustained. While abortion as we know it in common terms is about the deliberate destruction of the unborn, the legislation before us seeks to get away from this loose terminology and arrive at a clear definition so that these two fundamental differences are recognised.

I recall a number of years ago a question being asked in the Dáil by a then Opposition Deputy in regard to maternal deaths as a result of pregnancy in Ireland compared to other European Union countries. One thing that became clear, aside from deaths caused while abortions were being carried out, was that, thanks be to God, pregnant women in Ireland were safer than in other European Union countries. No one in Ireland who cares about this issue would put a woman's life unnecessarily at risk. An objective of all of us is to honestly say this is the safest country not just in Europe but in the world for a woman to be expecting a child, and that is something towards which we all work and aspire. It seems from the figures given that there is no medical evidence to show that the introduction of social abortion in any way moves us from that point. The opposite is the case.

I was fascinated to hear Deputy Noonan refer to EU law and the protocol to the treaty because I raised that issue to the consternation of my colleagues in the parliamentary party when I read the protocol as protecting Article 40.3.3WP extended char 6,36 as it was, and, therefore, in the event of a further referendum perhaps not covering the situation. Many Opposition Members at the time thought I was losing the run of myself. These people would not listen to the point I was trying to make and were quick to brand me as a whole lot of things. However, when the Government of the day, led by Deputy Albert Reynolds, went to the European Union and got the solemn declaration, which is mentioned in the Taoiseach's reply to Deputy Noonan, I was satisfied – I am still satisfied – to trust the member states of the European Union in that undertaking that whatever we decide on this issue will be respected by the European institutions. I am absolutely amazed that almost ten years later those who scoff use this as another reason it is not a good proposal. I am still willing to accept their good faith on that issue.

After ten years it is about time to take our [118]courage in our hands in this House and go to the people, after what has been a long period of consultation, with what is a very comprehensive, balanced and good proposal. There are those who do not favour it because they would prefer a different regime. I cannot understand why these people do not favour holding a referendum or why they cannot come up with a better proposal after all this time. As I said at the beginning, for the first time since the X case the people of Ireland will get a clear choice, that is, to vote for the preservation of current medical practice in Ireland or to vote against this proposition for the ruling given in the X case, which would, despite what Deputy Noonan says, inevitably lead to the introduction of social abortion similar to that which pertains in other European countries. The choice is stark. It should be put to the people and I look forward to the issue being decided by the people in the new year.

Mr. Naughten: Information on Denis Naughten  Zoom on Denis Naughten  I welcome the opportunity to speak in this debate. I want to focus on section 1(1) of the Bill on the definition of abortion. Abortion is defined in the legislation as terminating life after implantation rather than conception and that will lead to huge ethical problems in the not too distant future. The publication in February 2001 of the draft sequence of the human genome has set in motion a new area of genetic research which will have far-reaching implications. This milestone in scientific research brings with it huge potential to treat genetic disorders but also leads to complex ethical questions. This knowledge of the genetic make-up of human beings has implications for society's concepts of race, equality, disability and social responsibility. To date, the emotive debate surrounding this area of research has focused on human reproduction and, specifically, on assisted pregnancy and cloning. There is no legislative framework in this country to regulate either of these two areas, with only minimum guidance under the Irish Medical Council guidelines.

The question of whether the constitutional right to life, under article 40.3.3WP extended char 6,36 provides protection in the area of assisted reproduction has not been answered. However, following the publication of the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, any protection which may have prevailed in this area is removed, with the redefinition of the commencement of life as following implantation rather than conception itself. With this redefinition of life, there is now an urgent need to establish a regulatory framework in this area. Across the European Union, legislation ranges from the UK situation, where the Human Fertilisation and Embryology Authority regulates and licenses research and clinical practice in genetic technology involving embryos. The UK situation allows research on embryos and the creation of embryos for scientific research purposes under licence.

This situation contrasts with the position in [119]Austria and Germany where legislation is extremely restrictive. In Germany, embryo protection regulations are among the strictest in the world, forbidding research that harms the embryo or the production of embryos for any purpose other than to start a pregnancy. However, human embryo stem cell lines produced in other countries may be imported for research in Germany.

While there are contrasting views on the level of embryo regulation throughout the EU, each country believes that this research must be regulated. It would be irresponsible to enact this Bill without reference to this background as this would lead to huge ethical problems in the near future. In Ireland, an ethical quandary currently surrounds the fate of unused embryos for use in in vitro fertilisation – IVF – programmes but there are other elements which must also be considered in relation to assisted reproduction. Assisted human reproduction or in vitro fertilisation, as it is commonly called, has been practised successfully in Ireland for many years. Shortly after the technology became available, clinics attached to maternity units were set up in some hospitals. Infertile couples in this country were as anxious to avail of the treatment as those in other countries. Many more clinics have been established in recent years, some of which are associated with clinics in the UK. There is no Irish legislation to control the establishment of such clinics or to regulate the procedures currently carried out in them. Senator Henry introduced a Private Members' Bill in the Seanad to put such regulation in place but, regrettably, the Government voted it down.

Genetic information has vast potential to affect reproductive choice. Among the practices associated with genetics and reproduction are IVF programmes, embryo freezing, pre-implantation genetic diagnosis – PGD – enhancement gene therapy and cloning. Enhancement gene therapy has the ability to manipulate genes to influence the characteristics of a baby and this has given rise to as much public disquiet as cloning. Again, in Ireland there is no legislation either prohibiting or regulating genetics-related reproductive practices. The only regulation is under the voluntary guidelines of the IMO, which contains a general statement that gene manipulation with the aim of improvement of health may be ethical, while the creation of embryos for experimental purposes would be professional misconduct. The lack of legislation in this regard has caused considerable concern for Ministers for Health for some years. The Medical Council guidelines are insufficient because they have no legal standing and many people involved in assisted human reproduction are not medical practitioners. They are either physiologists or other members of the scientific community who are not covered by those guidelines.

IVF programmes, artificial insemination by anonymous donors and embryo freezing are currently practised in Ireland. Advances in genetic [120]knowledge means that IVF programmes may allow the selection of embryos before they are implanted in the womb, which is called PGD. This raises the prospect of even fertile couples, where there is a risk passing on defective genes, deciding to opt for IVF to remove this risk. PGD also allows the possibility of selecting the sex of a foetus before it is implanted into the womb. In the UK, sex selection is banned except when justified for medical reasons.

The other element of research is cloning. Concerns have been raised by the cloning of animals and, no doubt, most people have heard of Dolly the sheep. There are two distinct types of cloning, reproductive cloning and therapeutic cloning. Human reproductive cloning involves creating genetically identical foetuses, while therapeutic cloning involves cloning human embryo cells under two weeks old for the purposes of research into diseases such as Parkinson's disease, cancer, strokes, heart disease etc. Much of the revulsion to human cloning is based on the notion of human dignity and treating human life in an instrumental manner. The current state of scientific advances is such that cloning is extremely hazardous, with a success rate of between 3% and 5%. In Ireland, there is no regulation prohibiting or controlling either types of cloning.

This is in contrast to most European states which have enacted legislation banning human reproductive cloning. In certain countries, such as Germany and Spain, an attempt at human cloning is a criminal offence. In Britain, cloning is regulated under the Human Fertilisation and Embryology Act, 1990. Although there is no explicit ban on cloning in that legislation, it requires a licence from the Human Fertilisation and Embryology Authority which has indicated that no such licence would be granted. Various international measures have been taken to outlaw reproductive cloning. Article 11 of the Universal Declaration on the Human Genome and Human Rights states: “Practices which are contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted.”

The European Parliament has passed a resolution calling on member states and the UN to implement a legally binding universal ban on human cloning. The European Parliament, in its resolution on human cloning, considers that there is no difference between cloning for therapeutic purposes and cloning for the purposes of reproduction and that the relaxation of the current ban will lead to pressure of further developments in embryo production and usage. Such therapeutic cloning irreversibly crosses a boundary in research norms and is contrary to public policy as adopted by the European Union.

The European Parliament urged that maximum effort be aimed at therapies using stem cells taken from adult subjects. This is an area of research which has been developed for some years and has had some positive elements to it. National and Union authorities should ensure that the ban on patenting or cloning human beings is reaffirmed [121]and that rules are adopted to that end. Again, we have no Irish laws on any of those matters, contrary to the policy stated by the European Parliament. For many years the United States has been torn apart by arguments about abortion. Anyone who has read up on that debate will be extremely conscious of how heated it has been. Abortion clinics have been bombed and there have been other violent actions by various fundamental organisations there. However, that paled into insignificance when compared with the debate held in the US this summer on a more complicated series of questions regarding stem cell research. This debate, which has taken up much of the time of the Congress and Senate, has covered the ethical aspects of stem cell research and whether it should be funded by the US Government.

President Bush spent much of his summer agonising over whether to allow federal money to support research into stem cells that have been extracted from embryos. The House of Representatives voted for a Bill that would ban all forms of human cloning. Stem cells can be encouraged to grow into any sort of cell and thus prove invaluable in helping to find cures to diseases such as Parkinson's and Alzheimer's. Given that stem cells can be manipulated into any organ in the body, they form an extremely useful research tool.

The US regulatory regime is in a complete mess. The US Government's only source of control is through the money it spends in funding research programmes. This gives considerable clout to industry. Its reluctance to spend money on stem cell research in the United States has persuaded many American scientists to carry out their research in the more liberal regime that exists in the United Kingdom.

This still leaves scientists free to do pretty much what they want provided they use private money. The current lack of a regulatory framework means that a similar situation pertains here. The only regulation that exists relates to the Medical Council. As you, a Leas-Cheann Comhairle, know quite well, most of this research is carried out by scientists who do not have to abide by the guidelines set down by the Irish Medical Council or any other equivalent body. Furthermore, none of these scientists, either during their education or professional practice, have to address the issue of the ethical implications of research they do. It is not part of their training and it is a matter for Government to lay down the legislation and regulations to govern the research they carry out.

In the US, due to the lack of regulations, private industry has carried out an immense amount of research with serious ethical implications. The same thing could in theory happen here and the protection which was available under the Constitution will now be removed under this legislation given the new definition of abortion.

In the United States, one cult is trying to clone [122]humans. A company recently announced plans to harvest embryos. Another company is offering a service to couples whereby they can choose the sex of their child – the list goes on.

Everyone agrees that this area is a mess without a legislative framework. We have the most lax system in the European Union because we have not been prepared to tackle the issue. To date, the only protection against the potential abuse of embryos has been under article 40.3.3WP extended char 6,36 of the Constitution. Even the legal interpretation of that protection has been in doubt for some time. There is no doubt that the legislation as it now stands, if passed, will remove that semblance of protection. The Government should take due consideration of that point before proceeding further with this legislation. I can guarantee that within 12 months of this legislation being passed, voted on by the people and written into the Constitution, there will be an even bigger lobby raising questions and looking for further legislation in the area of cloning and human reproduction.

The protection of embryos, stem cell research, the use of stem cells for genetic manipulation and what we decide to do with the frozen embryos or zygotes which are stored in the Rotunda Hospital in Dublin are all open for debate. This debate will be at least as heated as the abortion debates here have been in the past. For years politicians in the United States knew on which side of the divide they were in the abortion debate. However, many of them do not know where to turn on this area because it is not a black and white issue. It is a grey area that will lead to huge complications.

I am disappointed this is not being addressed by the Government through this legislation. It is a fundamental issue and to go ahead with the legislation without putting that protection or regulation in place is irresponsible, and it would be irresponsible for this House to approve that legislation.

I therefore support my party's position that the passing of Second Stage be postponed until these very real issues, raised by me and my party leader, Deputy Noonan, are addressed by the Government. What we are doing is opening a further can of worms that will not lead to the solution that this Government expects.

Cuireadh an díospóireacht ar athló.

Debate adjourned.


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