An Bille um an Ochtú Leasú ar an mBunreacht, 1982: An Coiste. Eighth Amendment of the Constitution Bill, 1982: Committee Stage.

Wednesday, 18 May 1983

Seanad Eireann Debate
Vol. 100 No. 9

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[933]An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  In order to avoid duplication of the debate it is suggested that the Schedule be taken before the section. Is that agreed to?

Professor Dooge: Information on James CI Dooge  Zoom on James CI Dooge  That is a sensible proposal. Certainly, we must avoid duplication of exactly the same debate. Since the heart of the Bill is in the Schedule, if we did discuss the Schedule first and went back to the section it would allow for a more rational form of debate.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  Tairgim leasú Uimh. 1:

Ar leathanach 5, tar éis líne 21, an Sceideal seo a leanas a chur isteach:

3º Ní cead aon ní dá bhfuil sa Bhunreacht seo a agairt chun aon fhoráil de dhlí a chur ó bhail ná a fhágáil gan feidhm ná éifeacht ar an ábhar go dtoirmisceann sí ginmhilleadh.

3º Nothing in this Constitution shall be invoked to invalidate or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.”.

I move amendment No. 1:

In page 4, after line 20, to insert the following Schedule:

3º Ní cead aon ní dá bhfuil sa Bhunreacht seo a agairt chun aon fhoráil de dhlí a chur ó bhail ná a fhágáil gan feidhm ná éifeacht ar an ábhar go dtoirmisceann sí ginmhilleadh.

3º Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.”.

There has been a certain amount of cynicism expressed to me about the motives I had for putting down this amendment. On several occasions it was suggested to me that this was a mischievous motive with the distinct intention of embarrassing the Fine Gael Party. That is not strictly true. The motive in putting down this amendment was to encourage the Fine Gael Party, to give them the opportunity to debate their own wording in the Seanad which they had debated in the Dáil and which, I understand, they had voted for at a Parliamentary Party meeting.

I am very surprised at the degree of encouragement which they needed. It astounded me that with a working majority in this House they were not prepared to put down this amendment which they undoubtedly could have carried through this House, which they were prepared to put to the Dáil and over which they were prepared to put the country to so much trouble and expense. I, like many of the independents here, do not approve of any such amendment to the Constitution as we have had put before us but I have to accept the fact that last week Seanad Éireann in its wisdom decided to pass the principle of the Bill on Second Stage. It should be pointed out for the record of this House that the wording passed last week was approved of by less than one-third of Seanad Éireann. There were 18 votes in favour out of a total of 60 Members. Nevertheless, it has been approved of in principle and that is something which we have to accept.

However bad the legislation is, as this undoubtedly is, it can be improved at this stage. The wording which we have before us in this amendment is undoubtedly the lesser of two evils. I will come to the reasons for that in a few minutes. This lesser of two evils is also acceptable to a majority of the Members of this House. With some regret I would be prepared to [935] accept the lesser of two evils rather than the very bad wording which we have in front of us.

I understood that the Fine Gael quarrel with this amendment has never been with the principle of an amendment to the Constitution which was mine. The Fine Gael quarrel has always been with the wording and that is why this amendment was put down on Committee Stage by the Fine Gael Party in the Dáil. At various stages the wording which was passed last week was described as having serious defects by the Minister and as being dangerous by another member of the Cabinet. The wording was voted on by the Fine Gael Party I understand — I am open to correction — by approximately 2 to 1 at their parliamentary party meeting. Senators, I gather, attend such a parliamentary party meeting. I should like to know what has changed since that meeting. I should like to know why the wording in the Bill is now acceptable and why the Fine Gael Party are going to renege on their own one and abandon it.

The advantages of the wording I put down are twofold. One is that it undoubtedly avoids the multiple interpretations which the other wording, the Fianna Fáil wording, which we passed last week has. Undoubtedly, it is far simpler wording, it is much easier to understand and it will be much easier to explain to the people when it is put to a referendum. It will be very difficult to explain the wording which we passed last week to the people because nobody seems to understand it at the moment, least of all the people who proposed it.

The second advantage of this wording, the Fine Gael wording which I have down today, is that it surely fulfils the main demands of the PLAC and SPUC groups that the Supreme Court cannot rule the 1861 Act, or any other Act prohibiting abortion, unconstitutional. That was their demand. I do not approve of giving in to any of their demands but if we are going to give in to their demands we might as well say that this is part of that procedure, this is what it has done.

The great disadvantage as far as I can see with what I am proposing today is [936] that it actually agrees to leave a major responsible decision in the hands of those who are elected to make such decisions. It is an extraordinary thing that the elected representatives of the people of this country cannot, apparently, be trusted to legislate on such an important thing as this. It is a disgraceful reflection on our parliamentary representatives that such a delicate issue as abortion is not something with which parliamentary representatives can be trusted.

The Fianna Fáil amendment quite patently and quite openly says that no future Government, no future Dáil and no future Seanad can be trusted in this way. I do not want to go through the defects in the wording because they have been gone through at such length before except very briefly to speak on the two major counts. The expression ‘the unborn’ is undoubtedly an ambiguous one because it leaves too much to interpretation by the courts and, undoubtedly, the courts will be brought into this eventually. The question which will undoubtedly be asked is where life begins, and it will be open to the courts certainly to interpret life as beginning from the moment of fertilisation. If so this will undoubtedly have the effect of making illegal inter-uterine devices, the Progesterone Only Pill and morning after pills. That is the fact. If the Supreme Court interprets in that way that would be the effect of it. Some of these pills are the only pills, some of these devices are the only devices, which women in certain categories can use. Their use of them would then become illegal. The new treatment of the fallopian tube will become illegal as well although this very modern treatment increases the chances of a woman successfully becoming pregnant in the future.

The other very ambiguous and difficult phrase in the Fianna Fáil constitutional amendment which I wish to eliminate is the phrase, due regard to the equal right to life of the mother. We have had no explanation of that in the Seanad at all. I do not believe anybody can say what equal right of one life or another life is. I do not believe there is any such thing. The effect of that probably will be, if it is [937] to be strictly and correctly interpreted, that several operations which are currently being practised to protect the life of the mother to the cost of the child, which lead to the death of the foetus, will become illegal as well. There are several operations obviously being practised in which the life of the mother is given priority.

I do not know what “with due regard” means. It has not been explained to me properly. It is an arbitrary and unclear phrase. I should like to quote a couple of eminent people on this. The Attorney General in his statement of 16 February said that if a doctor was faced with the choice of terminating the life of one, which will be the choice many doctors will have, at the cost of saving the life of another, then the correct course for the doctor, strictly speaking, would be, in his view, to do absolutely nothing. The Taoiseach rightly drew attention to the dangers of this clause.

Nobody so well articulated the defects in the Bill as the Minister for Justice in his speech to the Dáil on 27 April 1983 and, without intending to embarrass the Minister, I should like to quote a part of his speech as reported at column 2006, volume 10, of the Dáil Official Report for 27 April 1983:

There remains the important question: what is wrong with the existing wording? Deputies are, of course, already by now well aware of what has been in the public press and of the fact that, on the best legal advice available to us, the existing wording has serious defects.

Briefly, those defects are twofold: first, that the expression “the unborn” is very ambiguous; second, that the reference to the equal rights of the mother is insufficient to guarantee that operations necessary to save the life of the mother but resulting in the death of the foetus may continue.

On the first point, it is scarcely necessary to say that objection is not being raised simply on the basis that there is a certain degree of ambiguity. Some ambiguity is probably inescapable — language is not a precise instrument. [938] The criticism in this case is the extent of the ambiguity, a criticism which is strengthened by the fact that it was obviously accepted in order to avoid argument.

On the second point, I would like the record to show very clearly what is being said by way of criticism — and what is not being said. It is not being said that the wording would be held to make the operations in question unlawful. Nobody could say with certainty what interpretation a court might put on the words. What is being said is that, on the ordinary meaning of words, that should be the interpretation and that therefore there must be a definite risk.

Now the position in which we find ourselves is that I am sponsoring this amendment and, in effect, the Opposition are sponsoring the existing wording. I have sought to answer the questions that arise on my side. If we are to have a reasoned debate, somebody on the Opposition side should, I suggest, undertake to answer the serious questions that arise on their wording.

I agree with that. I would like to hear from the Opposition today about that. The Minister continued:

It has been said that no court, unless absolutely compelled to do so, would put such a construction on the words, given the fact that these operations are in accordance with long-established practice; and that it cannot be contended that the courts would be compelled to do so since an interpretation more favourable to the mother is at least an option open to them.

My questions are these. First, is it not the case, clearly and beyond any argument, that those particular operations, legitimate and necessary though they are, protect the life of the mother in a manner that in some cases must lead to the death of the foetus and that, in other cases, puts that life at serious risk? Does it not follow that, while the death of the foetus is certainly not intended, in the ordinary meaning of the word “intended”, it is nevertheless a fact that, since the death [939] of the foetus is a foreseen and even certain consequence, the action being taken gives priority to the mother's right to life? Now — and this is the crunch question — if the intention is, as no doubt it is, that these operations are not to be unlawful, why does the draft not say so? Why does the text use language that its sponsors hope will be interpreted in a particular way by the Supreme Court but avoids expressing that intention with the kind of clarity which is attainable? I should like to make it quite clear that I accept that all concerned hope, and indeed may feel confident, that that is the interpretation that the courts would opt for. But the question remains: why does the text not say what its sponsors intend?

I do not know what the thinking behind the choice of these words was. The wording was, as we know, chosen by the former Government. I have already explained to the House that the records available to me do not contain any analysis or any background information that would throw light on it. I suggest that it is up to somebody on the Opposition side to clarify it, even if only so that in future years somebody may be able to read the record and find the answer.

That is self-explanatory. That explains the real dangers of the possible interpretations by the court and the real dangers which were felt by the Fine Gael Party about this amendment and about the wording of it.

It is not right for us in this House to say that the courts can and will interpret such an amendment in a certain way because we do not know in which way they will interpret it. There are one or two other things which the courts could also do. They could possibly, by injunction, stop women leaving this country to have abortions. They could prohibit the sale of certain contraceptives. They could stop various doctors or family planning clinics from informing women about abortion facilities abroad.

Behind the wording I am putting down [940] have been the Minister for Justice, the Attorney General — I presume they still are — the Taoiseach, the majority of the Cabinet and the majority of the Fine Gael Parliamentary Party. I congratulate them on their ingenuity in producing this wording originally which they promoted. I look forward to seeing them vote for their own wording this afternoon. I cannot envisage a situation where a party put the country through the sort of agony which this party have put it through, the contortions through such hypocritical soul-searching which they put it through, the expense, the traumatic confusion which was necessary to put the change of wording and then to accept the other wording, the Fianna Fáil wording. They admitted the serious defects in the Bill before us but then refused to defeat such a Bill in Seanad Éireann. I cannot believe that any governing party can do this. Fine Gael, if they do not vote for their own form of wording, infinitely preferable, bear an unforgivable responsibility if they are deliberately to allow — this is what they would be doing — a bad Bill with serious and unforeseeable defects to proceed and blindly recommend a “no” in the referendum. I do not know if this goes through, and if the attitude they are taking proceeds, what sort of a Government we have.

Minister for Justice (Mr. Noonan,: Information on Michael Noonan  Zoom on Michael Noonan  Limerick East): While I fully agree that the amendment proposed by Senator Shane Ross represents an improvement on the existing text I cannot recommend its acceptance. Senators will be aware that I moved an identical amendment on Committee Stage in the Dáil. They will also know that on a division it was defeated by a margin of 87 votes to 65. Given the margin of that defeat it would be unrealistic to expect that should this amendment now be accepted by the Seanad it would subsequently be agreed by the Dáil. The only practical effect the adoption of this amendment would have would be to delay the passage of the Bill and the holding of the referendum. In my view that would not be in the public interest. Accordingly, I cannot recommend the amendment.

[941]Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  I cannot support the amendment. I was glad to hear Senator Ross say that his motives in putting down this amendment were not strictly mischievous; perhaps they were not even mischievous at all.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  Perhaps they were.

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  In any event, it is before us now and we have to deal with the amendment as we find it. What we have to have regard to in this matter is that there is a great deal of concern among people in regard to this question. Even though some Members may not share that concern, or may not accept that there is any danger in the situation as it exists at present nevertheless there is a great deal of concern. There are many people who feel that this Bill is necessary and we should not fall into the trap of thinking that we are making the decision in this House or that we should make a final decision. I have no doubt at all that at this stage, having regard to the very strong feelings that have been shown throughout the country, the only way to deal with this matter is to have a referendum and allow the people to express their feelings.

There are two ways in which people are concerned about the situation as it exists at present in regard to the position that would exist if a Bill had not been introduced. They are concerned that the Oireachtas might introduce a Bill that would repeal the 1861 Act, or water it down in such a way as to be less rigid, less strict, than it is at present. People are also concerned that the Supreme Court might come to a decision that that Bill or a similar Bill was unconstitutional.

The amendment introduced by Senator Ross goes some way towards dealing with one of these fears but goes no way at all in dealing with the other. The amendment would not prevent the Oireachtas from repealing the 1861 Act or from introducing some kind of Bill which would be less strict in regard to abortion than the law as it stands. From that point of view merely to bring a Bill [942] before the people, to have a referendum which would deal with one aspect of this problem and not the other, would go only half way as far as many people are concerned. If we are going to have the cost of a referendum, which many people have expressed concern about, then certainly we should have a referendum which deals with this matter as clearly as possible.

If we were not to deal with the danger that a future Oireachtas might introduce a Bill which would repeal the 1861 Act or would not be as strict as the present law, we would not be meeting the problem that is before us.

As stated on many previous occasions, Senator Ross repeated that this is showing a lack of confidence in the Oireachtas, but on the other hand that is what the Constitution is there for. Many of the Articles in the Constitution dealing with fundamental rights are there specifically to prevent the Oireachtas from doing things that would interfere with fundamental rights. The Constitution can be interpreted as being a document which expresses lack of confidence in the Oireachtas because it quite specifically provides that the Oireachtas may not do certain things or may not interfere with fundamental rights. That is what the Constitution is there to do. What this Bill is doing is saying that in case there is any doubt about it we want to ensure that the right to life of the unborn is a fundamental right, it should be included in the fundamental rights in the Constitution and consequently the Oireachtas may not interfere with that fundamental right. To ignore that aspect of this problem and not to bring it before the people would be bringing only one half of this problem forward for consideration.

It is right to say that the people in the long run are entitled to do anything they like and the people may say in four, five or ten years time that we believe that abortion should be permitted in certain circumstances. What this would do would be to say that this is such an important matter that if the people want to change their minds in future about the importance of the life of the unborn, then they must not be able to do it by a quick Bill [943] going through the Oireachtas, perhaps in a situation in which a Government are under pressure or transitory emergency. If the people want to take a different line on abortion they must do it in a formal way by having an amendment to the Constitution. To accept the change proposed by Senator Ross would not deal fully with the problem. It would be absurd to have a referendum and only deal with one half of the problem.

The second matter dealt with to a considerable extent by this amendment is the question of the possible interpretation of the existing law by the Supreme Court. The amendment states that “Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion”. That goes a long way to deal with this problem but it does it in a rather objectionable way. There have been criticisms of this Bill on the grounds that it shows lack of confidence in the Supreme Court; that it prevents the Supreme Court from coming to its own decision in its own way, and upholding the Constitution, and so on. But it must be said that the original wording merely sets down a principle. It says that the State acknowledges the right to life of the unborn 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.

Having set down that principle, the Bill then allows the Supreme Court to interpret it in its own way. This amendment before us states:

Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.

This in a sense is telling the Supreme Court, not inviting them, to interpret it: “No matter what you think of the Constitution, no matter what you think of the overall effect of the Constitution and the principles of the Constitution, we are telling you that you may not come to the conclusion that you would like to because [944] we are telling you you may not find that any law prohibiting abortion is contrary to the Constitution”.

This seems to be a much more brutal approach to the Supreme Court than the Bill as it stands. This is telling them quite blankly that they may not do something, no matter what they think the principles of the Constitution are or no matter what they would feel to be the proper interpretation of the Constitution. Whereas I agree that the amendment before us probably caters for the fear which some people may have that the Supreme Court would interpret the law in a way which would make the 1861 Act or some other Act unconstitutional, it is doing it in a way which is much more objectionable than the original wording of this Bill.

I do not propose to follow some of the hares which Senator Ross has raised in this matter in regard to the medical question. These were all discussed at great length in the Second Stage debate. There are some people who have fears from that point of view, but there is a wealth of medical and legal opinion that the kind of results referred to by Senator Ross are quite unreal and that this Bill would not give rise to any difficulties of that nature. I categorically reject the suggestion that this wording is better because the wording in the Bill is uncertain and so on. Putting down that amendment, or putting forward that motion on Second Stage, was probably a good way of opposing the Second Stage, of hanging the Opposition to the Bill. I spoke on it on Second Stage and I am quite happy that the wording in the Bill is by no means uncertain. It states a principle: “With due regard to the equal rights of the life of the mother...” The mother and the unborn child would have equal rights. Then it goes on to say what guarantees are given. The wording of the guarantees is exactly the same as that in the guarantees already in the Constitution about other matters.

To say that this is unclear, uncertain and so on, is just not true. The fact that many people in the House do not agree with the Bill and the wording is quite acceptable, but the argument that the wording is unclear and uncertain does not [945] stand up to close examination. Consequently, I say that the wording in the Bill is quite adequate, the best possible in all the circumstances. Of course it may not be so clear-cut that it will never have to be interpreted in the Supreme Court. There is no such thing as certainty in that sense. On many occasions the wording of Bills vis-a-vis the Constitution has been discussed and debated in the Supreme Court at great length. There is no absolute certainty about words or phrases in this regard. This may go before the Supreme Court. Some people may say it is not clear, some may say that it does not state the position, that it does not give the guarantees and so on in a way that nobody could challenge. But there is practically no Act and no Article of the Constitution that from time to time has not been discussed in the Supreme Court in an effort to find out exactly what was meant by it and to get an interpretation.

No wording could be absolutely so clear that it could not be challenged, but in my view the wording that is here is as near to perfection as could be got. It is a wording that was fully accepted by the Fianna Fáil Party, the Fine Gael Party and by many other people in the country who are concerned about this subject. I am quite satisfied that it is the best possible wording that could be obtained in all the circumstances. From that point of view as well as from the other points of view that I have mentioned the amendment proposed by Senator Ross should not be accepted by this House.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I must first confess to having had an extraordinary feeling of astonishment as I listened to such a distinguished Senator as Senator Ryan making the speech he has just made. In the course of it he suggested, for example, that the Constitution is something that need not be certain. This, to me, is an extraordinary suggestion and I am sure he will agree with me if I say that the one place where I have looked for certain statements in relation to guarantees of any kind has been in the Constitution rather than in the published formal body of law.

There are certain questions to be [946] answered and one wonders will they ever be answered if they are not answered now, at this Stage of the Bill. To reflect on the choices that have been offered in the speeches that have been made on this Third Stage so far, it has been suggested that the people will have an answer that we have been afraid to give in this Chamber and in the other Chamber, that maybe the questions will be avoided altogether and that maybe we will wait until some medical practitioner or some woman will go to the courts for an answer to a question that we were afraid to give. I begin to wonder about what stage of democracy we are at at present when we seek to avoid answering questions that I submit must be answered this afternoon in this House.

One cannot slide away from the phrase “the unborn”. What is meant by the unborn? Do I wait for Senator Ross on this Committee Stage, as he is entitled to, to define it for me, or maybe it is not Senator Ross's function to define it? Perhaps it is the Minister's function to define “the unborn”. We have just heard from Senator Eoin Ryan that he does not intend to tell us very much about “the unborn” except that for him and his party it is a satisfactory term and a satisfactory amendment. We move on from this word “unborn”, which is in the text of the Bill that will go to the people. In case I may not have the opportunity again, may I give its version in Irish, “ceart na mbeo gan breith”. What is meant by the phrase “ceart na mbeo gan breith”?

The reason for the need for definition is not academic. We do not want to define these phrases for our own semantic or intellectual satisfaction. This has precise implications potentially on the lives of the people. One wonders will the questions that arise be answered by any side before we vote on the amendment to the Bill and before this afternoon is out.

If we pass this Bill will the Minister explain and clarify to our doctors which of the two equal rights to life is to be preferred in cases of life threatening pregnancies? There seems to be an implication from the discussion so far that we can finish the discussion in the Dáil and Seanad without an answer to that question, [947] but the debate can continue during the time that it will, if it was conducted publicly, and in that atmosphere an answer to the question might be generated. I wonder how responsible that is. We have had evidence presented to us that those who are faced with taking decisions involving the potential interpretation of this language are not happy. We are going to say that we will release the terms of this referendum on the people, who have the final choice.

I would like to say a word about that for a moment. What we are saying is that we do not possess within the Dáil and Seanad either the capacity or the moral will to give an answer to questions that we are insisting on the public answering. That attitude to the public is scandalous. I also think it is insensitive and inhumane. It is dangerous in all sorts of ways, particularly to the lives of those affected.

Questions that must be answered this afternoon then, going on from the question of which of the two equal rights referred to is to be preferred in the case of a threatened pregnancy, involving the circumstance that we know is possible, although it is rare, for an ectopic pregnancy or a cancerous uterus to proceed to full term and to produce a live baby. Will Irish doctors now be prohibited from terminating such pregnancies once this amendment is passed?

I believe that we should not evade these questions. Answers should be given to these questions and they should be given this afternoon. It is not good enough for the people who have shared the victory of having their version or their words go to the people rather than another set of words, to sit there mutely and say that there is no responsibility to answer this question. I am not setting up a standard I have for myself, or that I might suggest other people have not, but it is important that these questions be answered before this Committee Stage is finished.

What about another circumstance? If it is, as I believe it is, almost universal medical practice in this country to terminate the pregnancy, in order to save the life, of a woman who is haemorrhaging [948] will the Minister or the representative of the party who want to have the words that are to go to the country for a referendum please clarify whether doctors may continue to treat such women, or will such a termination be prohibited, thus leading to the cause of the death of the mother and the child, from bleeding to death?

Thirdly, in the case of a cancer in the pregnant woman, will the Minister, or again, the person who has chosen to sponsor the alternative words that will go to the country for putting into the Constitution, please clarify whether doctors will be prevented from treating a pregnant woman, a woman who has breast cancer, for example, who may have the possibility of radiation treatment? Or will such treatment be made impossible out of deference to the new right to life of the unborn when such drugs would kill the foetus? Will doctors be obliged to refuse to give treatment to pregnant women in any circumstances or in none? Indications are, from the speeches I have heard this afternoon, that we should sit here as legislators, more advantaged, most of us, than the majority of the population, with more opportunities to get answers to these questions, more opportunities to listen to the careful arguments that have been offered to us, and pretend that these are not real questions at all and that the general public is in a better position to answer all these questions than we are.

I want to put a fourth question which I think is important. It was raised in the debate in the other House, it was raised here, and in the public debate. It is, what is the effect of passing a Bill like this and an amendment to a Constitution like this in relation to some existing contraceptive practices? We are entitled, apparently, to no answers at all. Why? Because it all began as something that would strike a vulgar political moral chord. If the Third Stage of this Bill finishes without answers to these questions that I have posed, it will be perfectly clear to me that what is happening is that questions that affect the lives of women, questions that affect therapeutic practice, that affect the practice of medicine and the application of future scientific and therapeutic possibilities [949] in relation to women's welfare, will have been placed second to political opportunism.

It is too easy to say that you can just get rid of it like this. I do not intend to co-operate in that exercise, I am sorry to tell you, from a procedural point of view. I insist as an elected Member of this Seanad that those who want either the Bill or the amendment must address themselves to the language they use. Where did you find the term “unborn”? Where did you go up to find its Irish version “na mbeo gan breith”? We are entitled to hear an answer to those questions.

I will move on to the next line, the unborn: I insist that we have it defined this evening. The equal right of the mother: what balance is suggested between the right given to the unborn and the right of the mother? Is it an innovation, is there a change, what are the implications of it, what would be the consequences of it?

The third line of the Schedule states “guarantees in its laws to respect, and as far as practicable...”. What is the meaning of the word “practicable”? How does that word “practicable” refer to the new relationships between the life of the mother and the life of the born, as indicated in existing practice? The Schedule states “and by its laws to defend and vindicate that right”. What is the meaning of “vindicate”? What strategies are suggested? We have heard during the debate the phrase, “It is as good a set of words as we could get, as near to perfection as can be got.”. “A deliberate and formal way” was another phrase used in a different context. I am in some difficulty. I have been invited just simply to accept in a general response that one form of words is perfectly acceptable and that the amendment moved by Senator Ross is something that addresses itself to “half the problem”. That, I think, was the phrase used. This problem was not defined in terms of what the original purpose of the amendment was addressed to.

I want to conclude by saying that I believe what we need this afternoon is to hear an answer to these questions before [950] we make a decision on this Stage of the Bill.

Dr. O'Donoghue: Information on Martin O'Donoghue  Zoom on Martin O'Donoghue  I am not quite sure what the procedure is at this Stage but I take it that in Committee we may contribute more than once should the necessity arise.

An Leas-Chathaoirleach:  Yes.

Dr. O'Donoghue: Information on Martin O'Donoghue  Zoom on Martin O'Donoghue  At this Stage I would like to make one or two points. Firstly, I want to make it clear that I could not support the amendment moved by Senator Ross for reasons the Minister has outlined. Since the wording of that nature has already been rejected by a substantial majority in Dáil Éireann I do not see that we would be making much progress by sending back to the Dáil the form of words which had already been rejected by them. At the same time, as I indicated last week when speaking on Second Stage, as far as possible the Seanad should use its time and energies to see if it can bring about some form of wording which would be more generally acceptable both inside and outside the House.

Looking beyond today, or next week, or whenever the legislation is dealt with in this Chamber, if we were to proceed with the wording as presently contained, we would seem to be in a position where we would be going to the country with a very half-hearted, indeed potentially divisive, campaign with the largest party on the Government side having already publicly signalled that they were not happy with the form of words put before the people and that they had serious reservations about it. We should be trying to dispose of these doubts, reservations and difficulties so far as we humanly can. If we can do that and if we can provide some amendments, additions, adjustments, or improvements, that would help to bring the parties together, would not that be a more satisfactory way to discharge our responsibilities? Not being a lawyer I do not pretend to be able to offer precise formulae in these matters, but having listened to a number of the contributions on Second Stage and having read both the Dáil and Seanad debates [951]— as I was not able to be physically present — it seems that the parties have set out to do two things, and Senator Ryan touched on them a few minutes ago: firstly, to make some form of pro-life statement and, secondly, to deal with the question of whether abortion could ever come about simply by legislation and not through constitutional amendment.

I wonder if we can find a set of words which meets those two requirements. I was trying to jot down various possible wordings as I was listening to these contributions and the sort of thing I was coming up with was along the lines: “The State acknowledges the right to life of the unborn child”. Here is one of the questions I would like to have clarified. I used the word “child” because it is a word that is used in everyday language. We speak of a mother with child, of expectant mothers, we speak of a woman expecting a child and so forth. Are there some particular legal, medical or other reasons why we cannot use normal everyday language when we speak about the “unborn child” if we want to, rather than about the “unborn”, which I gather some people have objected to on the grounds that it could refer to any form of unborn creature or form of life. Assuming we can resolve the addition or omission of the word “child”, I take it that that part of the statement meets the first requirement — that is, “that the State acknowledges the right to life of the unborn”. Is it “unborn child” or not?

As regards the second part, it seems that the objection to the amendment centres around the argument that it would only prohibit abortion with the legislation as it stands, but there would be nothing to prevent a future Government from introducing legislation that would permit abortion. If so, why do we not deal with that fear by having a different form of words? Having made a statement along the lines of acknowledging the right to life of the unborn, could we not use some form of words such as: “and affirm that any proposed legislation which would facilitate abortion is in conflict with this right”. Does that meet the [952] situation in layman's language? This is where I would be interested to hear the views of Members in this House, because it seems that some form of words of that nature meets the second requirement. It would say that “any proposed legislation which would facilitate abortion would be in conflict with the right to life of the unborn”. We would therefore have met the two requirements that, as I understand it, are at the heart of this campaign.

I will remain to hear the arguments whether it is necessary to make any reference to the right of the mother in this section of the Constitution, because, as I understand it, the rights of the mother have already been established in other sections of the Constitution. Do we need to introduce the risk of possible debates in the courts or elsewhere about the appropriateness of various forms of medical practice? As I see it, if we have the shortest form of words dealing with the two matters in the campaign we leave aside the question of medical practice. In other words, medical practice can presumably continue as it is, and I have no doubt that medical practice has developed and changed quite a lot since the original legislation referring to abortion was introduced in 1861. Equally, I presume it has developed in various ways in the 40-plus years since the 1937 Constitution was introduced. Presumably medical practice can develop with the growing knowledge about human life and the treatments of various illnesses and so forth. I take it that there have been various developments over the years and they have been able to come about without cutting across the rights of mothers or unborn children, as understood up to now and, therefore, presumably could continue in the future if we have a statement of a general nature in the Constitution. What we should have in the Constitution is something which deals with legislation because that was at the heart of the debate.

I am not pretending that the type of words I am suggesting can meet all the difficulties, I do not know, but I offer them as the reaction of one interested Member to the various contributions that have been made. It may well be that there [953] are other possible forms of words which could deal with the two matters. I agree with what Senator Ryan said and with what I understand to be the position of most Members both in the Seanad and in the Dáil, namely, that we should have some words which deal with the pro-life aspect and some words which would rule out the possibility of simple legislation to facilitate abortion. If we could agree on a set of words that appear to deal with these two issues which could command some broader basis of support, could we send them to the Dáil with a reasonable prospect that they would be acceptable there also? Then we would be able to go before the people in a much happier situation when we would have a broad basis of support and consensus on the wording of the constitutional amendment and thus avoid the dangers that appear to be growing of any referendum campaign degenerating into a form of political party squabble, or running the risk of various forms of sectarian allegations being made? It would be most unfortunate if either of those tendencies were to develop. I do not think constitutional amendments should be party political matters or be allowed to develop in a sectarian way. It has always been the purpose, aim and achievement of the various parties to deal with constitutional matters on the basis of broad support and understanding. Surely we can live up to the efforts of our predecessors by continuing to bring about that broad basis of support when dealing with this matter also?

As I previously indicated, we should be trying to clarify the forms of words which might be used and put before the people. Otherwise I do not see how we can go out of this House and claim that we have fully discharged our obligations as Senators. I would like to feel that other Members share these sentiments and, therefore, that we would work constructively to see how we can bring about some resolution to the unfortunate impasse that exists at present.

An Leas-Chathaoirleach:  In case there is confusion, the Minister has the constitutional right to come in at any time.

[954]Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): Senator Higgins asked somebody to answer particular questions. As I explained in the Dáil, I was not in a position to answer particular questions and I put the questions, which Senator Ross has now read into the record here, to Deputy Woods, Opposition spokesman on Justice and former Minister for Health. In the term of office of the previous Government the amendment was the responsibility of the Department of Health and it was transferred to the Department of Justice shortly after I became Minister. I had hoped that Deputy Woods, as a former Minister for Health, would have been able to clarify the points raised by Senator Higgins, and would have been able to answer the questions I put to him. But those questions remained unanswered. Maybe somebody in the Opposition Party today — perhaps Senator Ryan or Senator Lanigan — could help Senator Higgins.

Senator O'Donoghue offered an alternative. One of the criticisms made of the word “unborn” was that it is an adjective and the words “child” or “person” or “human being” might be put with it. However, there would still be an ambiguity depending on one's perception of words. Some people would see the words “unborn child” as giving protection at the point of fertilisation. Others would see that protection extending from implantation, and others would consider that word “child” to mean having the qualities which would be necessary for viability, but that does not remove the ambiguity. One person can see one particular word having a very tight meaning, whereas another person with an equally genuine attitude can see it as a looser term. To some perceptions yes, it would improve the situation and to the perception of other people it would not and a court would still be required subsequently to decide from what point precisely the protection extended.

Senator O'Donoghue suggested that coupled with that an accompanying phrase could be that “any legislation which would facilitate abortion would be at variance with this provision”, or something [955] along those lines. If the initial phrase was absolutely tight enough to give protection from the point of fertilisation the subsequent phrase would not be needed, or if we were sure from whence the point of protection extended, there would not be any point in having the qualifying phrase, because if there was a protection given to the life of the unborn child and that were defined, then we would know what the protection was and obviously that would tie a Legislature, because if abortion was legislated for subsequently it would be at variance with that provision. Therefore that would not be required.

On the question of balancing the rights of mother and child, there is the right to life of the citizen in the Constitution and obviously that includes mothers as well as other citizens but, again, if we simply had a statement giving a right to life to the unborn child and did not attempt to allow for current medical practice by some form of subsequent or subsidiary phrase, we would be leaving it open to the courts to balance the existing right of the citizen in the Constitution with the new right which we would be giving to the unborn child. Maybe that would be a way of doing it, but we would not be establishing a situation where the Supreme Court would not have a major role. We would be saying we will put a right to life of the unborn child into the Constitution, that a right to life of all citizens exists already and that in cases — as at times in current medical practice — where there appears to be a conflict, it would be up to the courts to decide. I felt I needed to make a comment on those points because while what the Senator says is interesting, for those reasons it does not help the situation, and I would not advise that an amendment along those lines should go back to the Dáil. I doubt that it would have a prospect of acceptance.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  The position of various Members concerning the amendment proposed by Senator Ross is certainly difficult for outsiders to understand. The position was well summed up by Senator [956] O'Donoghue when he identified the problem as being not whether this is the perfect amendment but whether this amendment has any prospects of ultimate success. If we are really interested in improving what will go to the people, if we consider it should be improved, as Senator O'Donoghue has suggested, we should be considering the various options open to us rather than sending back as a sop to our consciences something which the Dáil has decisively rejected when there is not the slightest indication that the Dáil has changed its mind on the topic.

It is in the spirit of examining the text in the Schedule of the proposed amendment and expressing our comments on that text, and if necessary considering further amendments, that we should be going rather than rehashing the Dáil debate which might be very good for our individual egos but which will not change in one iota what will eventually go to the people. I must be realistic enough to accept that ultimately what is going to go to the people is what the majority of the Dáil want. Our approach in the Seanad should be to try to create the atmosphere in which there would be a voluntary and spontaneous indication from the other House that there was a change of mind and that we would proceed on this matter on an all party and non-political basis. That is what we should be trying to achieve by our contributions because that is the only way in which we can retrieve the dangerous situation which has been amply demonstrated by the depth of the contributions which were made on Second Stage in this House.

It is altogether unreasonable for Senator Higgins to demand from the House answers to the questions he posed because there is nobody in this House who can give him those answers. The Minister has attempted to deal with some of the problems and I am going to attempt to deal with some of them myself. I am sure all people will attempt to deal with them and give their best interpretation, but nobody can definitely say what the meaning of this amendment to the Constitution, or any other amendment to the Constitution is because that is not our [957] job. All we can do is to give our opinion and put it into the record, but ultimately the interpretation is open to the Supreme Court, whether we like it or not. That, inevitably, is the situation.

The Minister has been critical of other people for not giving us their point of view and I share that criticism. I look forward to contributions from the other side of this House, from the second biggest party in this House, concerning their interpretation of the key words and phrases in this Schedule. But while I look forward to their contributions and we are entitled to expect that they would give us those contributions we must also be realistic enough to realise — and I do not think Senator Higgins was — that even if we got those explanations from every Member of this House, they still would not, and could not, be definitive. The interpretation of the Constitution is not the role of Seanad Éireann or the role of the Oireachtas, it is the role of the Supreme Court. We should recognise that in passing any amendment to the Constitution, an amendment which has nothing to do with life or abortions at all, we are still incapable of saying exactly what that means, because that interpretation is not a matter for us, it is a matter for the Supreme Court. We should individually give our interpretation so that we can adequately inform our own minds and the minds of our colleagues and then we can arrive at our decision, and subsequently the people can arrive at their decision. There is no mechanism on any amendment to the Constitution whereby the people can be certain to the last degree about what they are voting for. I believe very strongly that this should not go to the people in the present form but I recognise that those who are looking for complete certainty, are looking for something which is completely unobtainable.

The view that there is something objectionable to tying the hands of the Legislature is wrong. I think there is nothing objectionable to tying the hands of the Legislature in this or any other matter. Those who deny the right to tie the hands of the Legislature fail to recognise that we live not just in a democracy but in a [958] constitutional democracy. They have failed to appreciate that our type of democracy is fundamentally different from that of our ancestors. They are, if I might say so, in the tradition of the Irish Parliamentary Party, not in the tradition of the Irish Republic. They believe and what they are really saying is that Legislatures should not be tied, they should be capable of passing and free to pass laws as and when they think fit in a manner similar to the power and freedom which the Houses of Parliament of the United Kingdom have. They fail to recognise that ours is a constitutional democracy which is moulded more on the style of the United States of America, where there are fundamental rights which no State or federal legislature has a right to overrule. What is wrong is that people have failed to recognise the transition we made by the adoption of the Constitution in 1937, and they are not yet accepting the fact that we are no longer in a parliamentary democracy, but in a constitutional parliamentary democracy. There is a fundamental difference.

I do not feel slighted in any way by the people taking unto themselves power to exclude certain areas of laws from the consideration of the Oireachtas. I do not take that as a personal insult either on myself or on the other House, at present or in future. It is part of our structure and a part of which we can be justly proud. Those who have that as their fundamental objection to the words contained in the Schedule are mistaken. I do not think they are inheritors of the tradition of Sinn Féin, but inheritors of the tradition of the Irish Parliamentary Party. Basically, they are middle-class liberal type people who have gained most out of the safeguards written into the Constitution. It is extraordinary that those who are gaining most by it now, and have gained most by it in the past, still fail to recognise that there is a legitimate area where constitutional law overrides parliamentary democracy.

The questions posed by Senator O'Donoghue have been really fundamental. I would like to congratulate him on his open-minded approach, because it is a right approach. There is no point in [959] rehashing what goes on in the Dáil. That is not what we are here for. Instead, we should have a fresh look at it and arrive at our own conclusion: even if the conclusion is the same as that arrived at in the Dáil at least we can look at it from a different point of view. Senator O'Donoghue raised an important point about the use of the word “unborn”. The Minister has dealt with that point but not surprisingly he missed the point of the danger of the use of the word “unborn”. It is not only that it does not have a tag to it — it does not say “unborn child”, “unborn person”. There are two possible objections to it. One is that it does not qualify anything. It does not say “child” or “person” and, secondly, it does not identify the stage at which it comes into operation. It does not say “unborn” the first week after fertilisation nor does it say what type of unborn person or unborn child it refers to. There is a difficulty there and there is no point denying it. Later in my contribution I will say what I think it should mean as distinct from what I think it actually means, because it is important that we place on record what we believe. In view of the fact that it will eventually go outside our control, we should place on record the way we believe the High Court and then the Supreme Court should interpret it, and I propose to do that, even though in doing so one cannot be sure that that interpretation will be possible.

The other point is the reference to the mother. The Minister has dealt with that very fairly. If one leaves out completely all references to the mother and just say the “life of the unborn” you have a classical confrontation situation between one part of the Constitution and the other. That gives rise to very serious difficulties, indeed. We are, rightly, looking for an amendment — if such an amendment is capable of being drafted — which will protect the rights of the unborn children. We are, however, doing so without really having to come to grips with the situation of what even we ourselves mean by the unborn.

Here is where the major criticism of [960] the Fianna Fáil Party must come in. They have deliberately left it vague and have avoided nailing their colours to the mast on this particular point and that is where the difficulty comes in. Even if they do spell out what they mean, while there is no guarantee that that is the interpretation which will be put on it by the High Court and ultimately by the Supreme Court, it would certainly help substantially in ensuring that whatever problems are there would be overcome if it were on the record of the House that a substantial majority of people who had voted in favour of this believed it to mean X. That would be a very substantial addition to the ultimate consideration of the meaning of this referendum, if and when it comes before the High Court and the Supreme Court.

The real problem is that all we have had are a few individuals saying what it means and they are the people who voted against it. There has been total silence from those who are voting for it. One of the legitimate avenues of investigation for a lawyer appearing in any action before the High Court or the Supreme Court is to get behind the statute itself to what the Legislature meant. I am not saying that it is conclusive, but it is very often done to find out what was in the mind of the Legislature at the time. Very often that is easy because a Minister makes a definitive statement on Second Stage saying what the Government's view on the subject is. On Committee Stage the Opposition either agree or disagree with that, and the majority rule.

Here, however, we have a situation where only the Minister has gone to the trouble of defining what it is and he was against it. Those who were in favour of it have not defined it at all. There is no method by which the will of the majority of the Oireachtas can be ascertained and that can be very dangerous. For that reason, while we cannot expect that their contribution would be definitive and would meet the very exacting standard requested of it by Senator Higgins, nevertheless, we are entitled to ask the Fianna Fáil Party what they mean, so that it is on the record of the House and it should very definitely have been on the record [961] of the Dáil because something on the record of the Dáil would be a lot more valuable than something on the record of the Seanad.

I cannot say what “unborn” means. I read with interest the opinion of the Attorney General. His is not the interpretation that I would have put on it. That does not mean that the Attorney General is wrong because on a significant number of occasions when I am asked to advise I do so incorrectly. The reality is that I am very often wrong.

An Leas-Chathaoirleach:  You are very honest, Senator.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  In a significant number of cases when one is asked to advise, one gets it wrong. I do not know, therefore, whether I am right or the Attorney General but if I consider a significant lawyer or a significant body of legal opinion holds a different viewpoint from mine I must take it into account and that is the danger. I know what I want “unborn” to mean. In saying this, I do not want to overstate the case. I do not want to say that this is what it actually means. At the present time, in the present state of legal and medical knowledge in so far as I have been able to ascertain them, I want the law to protect the unborn after fertilisation and after implantation. I do believe that it may be and probably is morally wrong that I or anybody else should deliberately interfere with a fertilised ovum for the purpose of preventing a continuation of pregnancy after fertilisation, but before implantation. However. I do not believe that it is an area in which the law should act and that is where the difference comes in. It is an area in which each person must make his or her own moral decision. My moral decision would be, in ordinary circumstances, not to interfere after fertilisation and before implantation. I do not believe that that grey area is a period of time in which it is reasonable to expect that the law would have effect. It is important that we consider the significance of this. Senator Bulbulia here last week mentioned a written answer in the British House of Commons given in Hansard on 10 May, column 238 [962] for which I am indebted to the Minister. It is important that it be read into the record of this House:

Dr. Hampson asked the Attorney-General (of the United Kingdom) how many complaints have been received, either by himself or by the Director of Public Prosecutions, which relate to the supply of what is commonly called the “morning-after pill”; and whether he proposes to institute criminal proceedings in connection with any of the complaints.

The answer of the Attorney-General, which is a sensible legal answer distinguishing, as it is important to do, between the legal and moral, is as follows:

One complaint has been made direct to my Department and three to the Director of Public Prosecutions. Each complaint alleges that the supply and administration of such post-coital medication contravenes sections 58 and 59 of the Offences Against the Person Act 1861 and that a woman using such medication may commit an offence under section 58 of the Act.

Such pills are intended to be taken by women following unprotected intercourse to inhibit implantation in the womb of any fertilised ovum. The sole question for resolution therefore is whether the prevention of the implantation constitutes the procuring of a miscarriage within the meaning of sections 58 and 59 of the Offences Against the Person Act 1861. The principles relating to the interpretation of statutes require that the words of a statute be given the meaning which they bore at the time the statute was passed. Further, since the words were used in a general statute, they are prima facie presumed to be used in their popular, ordinary or natural sense.

In this context it is important to bear in mind that a failure to implant is something which may occur in the manner described above or quite spontaneously. Indeed in a significant proportion of cases the fertilised ovum is lost either prior to implantation or at [963] the next menstruation. It is clear that, used in its ordinary sense, the word “miscarriage” is not apt to describe a failure to implant — whether spontaneously or not. Likewise, the phrase “procure a miscarriage” cannot be construed to include the prevention of implantation. Whatever the state of medical knowledge in the 19th century, the ordinary use of the word “miscarriage” relating to interference at a stage of pre-natal development later than implantation.

In the light of the above I have come to the conclusion that this form of post-coital treatment does not constitute a criminal offence within either sections 58 or 59 of the offences against the Persons Act 1861. No proceedings are to be instituted.

As I understand it, it is with that type of explanation in mind that I define the type of interpretation of the word “unborn” which I would like to see.

The other area which has given rise to problems is the question of the equal right of the mother. The Minister has indicated why it is important that if you are getting into this area of defining this thing within the Constitution you cannot leave the right of the mother totally unstated. He has made the point that you are setting up a very serious conflict which could be decided in any one of a large variety of ways if you do not refer to the matter at all within the same section of the Constitution.

There should be no change in the present relationship between the mother and child. In life-threatening situations to the mother this should be interpreted in such a way as to permit action which preserves the life of the mother. That is the way in which I think it should be interpreted. I cannot, of course, guarantee that that will happen. While, as I said at the outset, I am in favour of a constitutional amendment in this area, it has not really been shown to me that a constitutional amendment can be drafted which meets the strict criteria of what should be in the Constitution. Therein lies the problem.

One other point I would like to refer [964] to is that in the amendment proposed by Senator Ross, the addition of something which prohibits the introduction of a law on abortion brings you back to defining what an abortion is and unless you do it in a lengthy schedule, you are leaving it completely open to the Supreme Court to define what an abortion is. The problem about using a term like abortion in the Constitution is that it demands interpretation. While guidance can be given by the Legislature, that interpretation is a matter for the courts and therein lies the problem.

That really is the fundamental problem with this form of wording. No matter how much I might say what I would like the interpretation to be, no matter how much other people might say and even if the majority who carried it in the Dáil had unanimously decided what the interpretation should be, there is no guarantee that that is the actual interpretation which would ultimately be upheld by the court. I am certainly interested in any new form of words. Senator Ross will not mind my saying so, because, I say it in a spirit of friendship, but his amendment is the lazy way out. It is just doing what somebody else did. People may think that they can improve on it — but to me it is an almost impossible situation without a joint committee or something like that. To repeat the words that have already been rejected by the Dáil is a lazy way out.

It is extraordinary that of all the people who are against what I shall call the Fianna Fáil words only we have tried to change them — nobody else. No others who have made fine speeches have tried to change them. Only we tried to change them and failed, but at least we tried. I am very anxious to see how other people will try to change them and to see other amendments which will hopefully get hearty support. If an amendment were put down which had the support of all sides of this House, then we would be making real progress and nobody would be more enthusiastic than I in sending it back to the Dáil.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  We are practically on Committee Stage talking about the wording [965] of an amendment. Quite clearly, the meaning of an amendment in such a painful, difficult and distressing area as the question of the relationship between a distressed mother and her unborn child is an area which, more than anything else, calls for compassion, understanding, sympathy, a willingness to listen to alternative views. Indeed, the comment could well be addressed to myself. Some of the remarks I made on Second Stage perhaps in certain cases lacked compassion towards certain groups but at least the groups I was talking about possess a considerable capacity to defend themselves, as I may well discover at the next election. That does not get away from the unfortunate fact that we, a predominantly male Legislature, are sitting here for varying motives — mostly fairly high I suspect, though not universally — making a political football out of the guilt and pain of thousands of Irishwomen over the last 10 years. That is what we are doing, because it has to be said over and over again that even those who most passionately support the original wording as proposed by the outgoing Fianna Fáil Government have accepted that it will not make one whit of difference to the right to life as they would assert it of the 5,000 or so unborn children who are aborted of Irish mothers in Britain every year.

There are interpretations of that wording which would suggest differently but that does not in any way get us away from the fact that it will make no difference. In the context of the fact that it is accepted that it will make no difference in those circumstances, I would appeal particularly to those who are the original authors of this wording to stand up and say what they mean by these words, what they understand them to mean. I do not expect infallibility from them. I do not expect infallibility from anybody and I suspect that if I shout that too loudly that will be another reason for my disbarment from the Church of which I am a proud and active member. The definition of infallibility that my Church holds is one that anybody could accept because it really cannot be proved wrong, not as regards the Church leader and God. [966] Therefore, no third party is going to enter the argument. That is easily dispensed with. I do not want infallible interpretations from my colleagues in Fianna Fáil and I address them as my colleagues. Indeed, there is a section in Fine Gael which has been known to suggest in private until recently that I was a secret Fianna Fáil supporter. It is a suggestion that Fianna Fáil in particular would be happy to disown, at least in recent weeks.

Fianna Fáil have an obligation to women, to Irish society and, in particular, to themselves and their tradition, to explain what they believe this wording means. I suspect that different members of Fianna Fáil take different interpretations of it. I suspect that some of them know that it is a particularly difficult wording to understand. It is wrong, it is a cop-out to suggest that we should leave it to the courts to decide. If all our legislation could be drafted like that then we would hardly have any need for parliamentary draftsmen. We could throw together whatever convenient form of words first came to our minds and leave it to the courts to tell us what it really meant. It is not good enough. We are supposed to decide what legislation means, not the courts. The courts should be an area of last resort when there are difficulties but I would hope that difficulties would be unanticipated difficulties. When difficulties are anticipated, a legislature should deal with those difficulties rather than anticipating numerous and admitted difficulties and leaving them to somebody else to solve. That appears to be what we are doing.

The consequence of this sort of conflict is, first of all, to increase the guilt of those who had the misfortune to have to travel to Britain; secondly, to propagandise and propagate the existence of referral clinics and, thirdly, to produce the most incredible conflict in Irish society. I received a letter from a priest friend of mine — and I emphasise the word friend — who said that because of my reported pronouncements a week or a fortnight ago, he could no longer countenance my speaking at a meeting under the auspices of the Catholic Church. My hurt is my own affair, but the fact that something [967] which is supposed to be a positive assertion of life can produce that sort of conflict between friends ought to give pause to those who see it as simply a lily pure attempt to assert something positive which nobody in this House will dispute — that life is something positive and should be vindicated and defended. If the consequence of your attempt to vindicate life is to produce that sort of conflict between good people — at least one person in that friendship was good; I will not speak for myself — then there should be real cause for concern.

I am somewhat amused, though it hurts an awful lot, at the suggestion that a Supreme Court which ruled that it is proper for the State to legislate on the sexual activity of people in private is somehow suddenly going to rule that women have a right to an abortion. The mind boggles that the same Supreme Court which can rule about sexual activities in private between adults as being a matter for public concern is now, or somewhere in the foreseeable future, going to rule on an issue like abortion in favour of an absolute right to privacy. There may well be an argument, but I have not heard it. I am still confused by all this but, as one who has defended himself as being pro-life in the way that I would defend the pro-life philosophy, I am extremely worried by the interpretation and the remarks of the Director of Public Prosecutions with respect to the official wording now before us.

My understanding is that the DPP said that he would have greater difficulty in instituting prosecutions under the 1861 Act if this amendment were incorporated in the Constitution. I tried to discuss this with people, particularly people in Fianna Fáil, and they have shrugged it off as just an opinion. If it were I who said that, or the Minister for Justice, or indeed the Attorney General, it might be true. The trouble with the opinion of the DPP is that his opinion is what decides who should be prosecuted under various items of legislation.

I do not want abortion to come into this country by a back door. I do not want us to legislate for or against abortion until [968] such time as we are prepared to take the full comprehensive responsibility for the social conditions which produce unwanted pregnancies, the attitudes to sexuality which produce unwanted pregnancies et cetera. I want somebody, preferably everybody in Fianna Fáil, to explain to me what they propose to do about the clear and explicit warning from the Director of Public Prosecutions that his capacity to protect the unborn under the terms of the 1861 Act will be inhibited if this amendment is entered into the Constitution. Let them not shrug it away and say it is just an opinion, and it is only the DPP. As far as I know, he is a relatively young man and is liable to be DPP for at least another 20 years. Perhaps Senator O'Leary or the Minister can confirm the age of the DPP, but it is not at issue. What is at issue is that he has stated that he will have considerable difficulty in prosecuting under the terms of the amendment. Somebody in this House, somebody who defends this wording, has an obligation to me and to other people inside and outside this House to explain away that fact — not a theory, not something that awaits a Supreme Court interpretation, but the fact that the present Director of Public Prosecutions feels that he will have greater difficulty in enacting prosecutions under the 1861 Act if this amendment goes into law. That is the problem with the wording.

With all due respect to my friend Senator Ross, there is a certain political motive in what he is doing. We will forgive him on this occasion — at least I shall forgive him.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  Will forgive him but will not vote for him.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Perhaps I am more generous than Senator O'Leary is.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  I have a vote for Senator O'Leary but he does not have a vote for me.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  The mind still boggles at the prospect of our present Supreme Court or any future Supreme Court ruling that any laws on abortion were unconbuli [969] stitutional. Nevertheless, at least the amendment has the virtue of being specific, simple and straightforward. I am not prepared to get involved in the enormous complexities of drafting alternative wordings which are similar in thrust to what is called the positive pro-life wording. I dispute both terms, but that is what it is called.

I wish somebody would give me an example outside the relationship between the unborn child and its mother, where the parallel between direct and indirect killing exists. Is there any area in relationship between two human beings outside the relationship between the mother and the unborn where some action which is necessary to protect the life of one person has the indirect consequence of killing another person and where that is justified in law? What I am saying, in fact, is that the relationship between the mother and the unborn child is unique. It cannot be compared with any other situation. It is not one that can be based on the normal legal interpretation of the meaning of words, because there are no other areas of life with which it can, in fact, be compared. Therefore, to try to put into the Constitution a clause or a provision which does what the proponents of this amendment want it to do without writing in either caveats or qualifications makes the whole thing even more confused and will do more harm than good to the objective which everybody claims to have in mind, that is, the protection of the unborn.

It is of course an interesting comment on this whole issue of the protection of the unborn that when Senator Robb and I put down a long motion in the last Seanad calling for a whole series of rights for mothers of unborn children and for the unborn, positive rights in the areas of support, housing, welfare and so on, this House did not discuss it and the media ignored it. Apparently, constitutional amendments are news but attempts to provide within the framework of the State services, positive support, encouragement and aid are not newsworthy. Conflict is newsworthy and agreement is not.

In conclusion, I just want to put on the [970] record for the benefit particularly of Fianna Fáil who have a commitment to the first official language, the extraordinary differences between the Irish and the English versions. I speak as a layman and perhaps the Minister can alleviate my confusion. The Irish version reads, “damhaíonn an Stát ceart na mbeo gan breith...” As Senator Higgins pointed out, the English version refers to the right to life of the unborn. The Irish version talks of “ceart na mbeo gan breith”. Who told the drafters of this Bill — Fianna Fáil must answer this for me — that the Irish and the English versions mean exactly the same? Let us remember that ultimately it is the version in Irish which is the definitive version and not the English version. Wherever there is a doubt, it is the Irish version that counts and if we were to be precise we should be discussing first and foremost the Irish version of this amendment.

The Irish version continues, “ag féachaint go cuí do chomhcheart na máthar chun a beatha, ráthaíonn sé gan cur isteach lena dhlíthe”. The English version guarantees in its laws to respect... whereas the Irish version says, “ráthaionn sé gan cur isteach”, guarantees not to interfere or something like that would be my layman's translation. Is there any difference between “ráthaíonn sé gan cur isteach” which means guarantees not to interfere and the English version which is, guarantees in its laws to respect... It is not the way I would translate the word “respect” but I am not a linguist and I am definitely not a parliamentary draftsman. The subsection ends with the words, “ráthaíonn fós an ceart sin a chosaint is a shuíomh lena dlíthe sa mhéid gur féidir é”. The words, “sa mhéid gur féidir é” in my reasonably fluent though anything but intellectual knowledge of the Irish language, means as far as is possible. I would never have understood the phrase in Irish “Is féidir rud éigin a dhéanamh” to mean it is practicable. It would mean it was possible.

I do not want to be playing around with words but if we are going to talk, as we must, about the meaning of individual words in this amendment I as a voter, if not as a Senator, am entitled to know [971] from those who drafted this amendment what those words mean precisely. I am entitled to know, the people of Ireland are entitled to know and people with alternative views on the merits of this amendment, in principle and in detail as the case may be are entitled to know.

Senator O'Leary was chasing a little bit of a red herring about definitive answers. I have never got a definite answer to anything in the English language. It can be done to some extent in engineering but not in relation to the meaning of words. We are not talking about definitive answers but we are entitled to know the minds of those who would tell us that this is a simple proposition that could easily be accepted. I would like to know what they mean by the Irish language version because that is the definitive version.

I regret entirely and very deeply the attitude of Fianna Fáil to this amendment all through this debate. They have not participated in the debate. They have not argued their case. They have simply said, “what we have said is right, therefore we support it”. The people are entitled to expect better from Fianna Fáil than that. Their traditions are better than that. Their history is better than that and in particular their capacity to withstand untoward clerical pressure has always been one of their better qualities. I regret, therefore, that they seem, to have decided to duck, to accept a wording, ignore the debate and try to push the wording through without really telling us what it means. If they believe that this amendment is the appropriate one, that is their entitlement and I admire them for it but I wish they would tell me precisely what they think it means because the people are entitled to know. Until they do, much as I object to the principles behind this amendment, because the whole thing is meaningless, I would have no option but to support Senator Ross's amendment.

Mr. Noonan: Information on Michael Noonan  Zoom on Michael Noonan  (Limerick East): I was very interested in Senator Brendan Ryan's contribution. He is quite correct in saying that in situations where there is [972] conflict, the Irish version takes precedence. It might be a matter of opinion whether “na mbeo gan breith” is an absolutely direct translation of “the unborn”. As regards the other aspects of the point he raises, Article 40.3.1º states that:

The State guarantees in its laws to respect, and, as far as is practicable, by its laws to defend and vindicate the personal rights of the citizen.

The Irish version of that is:

Ráthaíonn an Stát gan cur isteach lena dlíthe ar chearta pearsanta aon saoránaigh, agus ráthaíonn fós na cearta sin a chosain is a shuíomh lena dlíthe sa mhéid gur féidir é.

The draftsman in actual fact took the language from the existing provisions in the Constitution. If there is no conflict between the Irish version and the English version in 40.3.1º, there is no conflict in the words before the House. I take the point that it is quite arguable whether na mbeo gan breith has exactly the same meaning as has the English version.

Mr. A. O'Brien: Information on Andy OBrien  Zoom on Andy OBrien  My view is that while we can appreciate that Members of the House on all sides, like the people in the country in general, are pro-life and anti-abortion, the fact is that they continue to argue about the meaning of different phrases. It does not reflect great credit on this House that we cannot come together and work towards achieving a wording that would be acceptable to everybody. I do not believe that any Member in this House is in favour of abortion. They are all pro-life and what they want to see done and what the people want to see done is a provision written into the Constitution that is pro-life and anti-abortion. What they would want to see further is the fact that an Article of the Constitution would mean that if in some years to come, the Oireachtas did favour abortion, it could not become legal without a referendum at that time. That is what I honestly believe the people want. We are spending day after day and week after week arguing as to whether this wording meets the [973] purpose we want or whether the other wording meets that purpose. People will come to the conclusion that Members of this House and Members of the other House are more anxious about preserving the political identity of the parties than they are about making an honest effort to get a wording that will meet with the approval of the Members of the Oireachtas and of the members of the public.

Even at this late stage it is time that the Leaders of the parties in this House apply themselves to the task of examining the prospect of having a wording that would meet with the agreement of the Members of the House and that could be put before the people so that they would have an opportunity of expressing their views on it without having to think also of party identity. As matters stand, people will be advised to support one form of wording by the workers of one political party and to oppose it by the workers of another political party.

People who are in great difficulty as to the perception of the wording before them but with no difficulty at all in their mind as to what they would like to see done, will forget about the major issue before them in order to preserve party identity and party membership. In so far as we in this House would be responsible for bringing about that sort of situation, we would be playing a most unworthy role. I would dearly like to see an honest attempt made in this House at forming an all-party committee who would work objectively towards getting a wording that would be acceptable to everyone. We should get rid of endeavouring to maintain party allegiances and quibbling over the meaning of words when the fundamental idea behind this is the same in all our minds. It is a tragedy of this situation that we have allowed ourselves to be walked into such a predicament.

Mr. Ferris: Information on Michael Ferris  Zoom on Michael Ferris  As the debate continues, there is no doubt in anybody's mind that the public are becoming more confused about what most of us regarded initially as fundamental, something that we could support in principle. We are now at a stage in this debate when we are either [974] subjected to pressures because we know the other House will not act in accordance with our wishes or we are subjected to pressures from outside influences while still in the process of trying to carry out our constitutional function of ensuring that the words, if there are words, would be as definitive as possible and that they would state without any doubt what is in our minds as legislators so that the Supreme Court, if and when it would be called on to make a decision, would at least have the benefit of the views of the legislators to hand and therefore be able to make a decision along the lines which we intended.

I am very concerned that the only possible way that amendments can be made to this Schedule is by changing the words. Because there was a lot of ambiguity and uncertainty about the wording, we felt as a group — and gained a lot of support from both sides of the House for our view — that these words were not fit to be put to the people in a referendum. I have not changed that view and I am now faced as a legislator with trying to alter the words as distinct from sending them back to another committee, a move with which I would agree in principle, but this Schedule cannot be amended in this way except that we would agree at all-party level not to proceed to the next Stage in the Seanad and allow time for that particular evolution to take place. As leader of my own group in the House, I would be agreeable to that kind of format. I put that suggestion to my colleagues on the other side of the House who have put wording in front of us. Fine Gael, in fairness to them, have put other words before us but we are faced with the words that got the majority decision in the Dáil.

Senator Eoin Ryan, for whose contributions I always have the greatest admiration, has said so far as he is concerned, there is nothing wrong with an amendment to the Constitution which is vague, which comprises words which are vague and which can be re-interpreted in different ways by the Supreme Court at some future date. I would question that philosophy on the basis that while it might be all right in other sections of the Constitution when we are talking about [975] the rights of citizens who are already born, but when there is a question of a life at stake, whether it be the life of the unborn or of the mother, I question the credibility of having an amendment to the Constitution which could allow different interpretations.

I may be naive in thinking that one can be definitive in this area. I hope we could be but where there are doubts and where there are lives at stake we have an obligation to ensure that the wording is changed and for that reason I would support Senator Ross's amendment. At least it makes a difference. It makes an effort to have wording that is specific and ensures that the Constitution will defend the right to life in that it will disallow abortion. We should not leave in any doubt the area of debate in terms of the life of the unborn child or the important right of the mother, apart from whatever may be the outcome of the referendum.

Most medical practitioners declare their intention to have the right to the mother enshrined. As far as they are concerned that is a supreme right. But this amendment does not specify that the mother has a supreme right. Even in accepted medical practices in this country which are allowed under the 1861 Act there is no definitive right for the mother. It does not even talk about abortion. It talks about miscarriage. The wording here leaves an area of doubt and could lead to the opposite to what the pro-life amendment people are about. We have an obligation as legislators at this eleventh hour to slow up the process. We should not adopt the attitude that because this amendment was passed in the other House or because politically it does not suit some people to discuss it further, we should leave the matter at that. We have an obligation to slow up the procedure to allow time for an all party agreement. The people are totally confused and this is why Senator Higgins has asked so many questions. Not alone is he asking them for himself but he is asking them on behalf of the people he represents. I am asking them on behalf of the people I represent, the people who look to me to be as definitive as possible [976] when they ask when I think life begins. I give them what I consider to be the proper interpretation. But will that be the interpretation given by those who will be making the decisions in future or will it be somebody else's personal interpretation and will that be different from mine, from what I would like the interpretation to be? When the ovum is fertilised, is that a life? Is the life in the fallopian tube a life although it cannot continue into fruition and be born because it will endanger its own life and the life of the mother?

Implantation has been mentioned. We heard Senator Robb last week confirm that you can have pregnancies without implantation in the inner part of the uterus. So what are we talking about when we talk about the unborn life? What are we talking about when we talk about due regard to the equal right of the mother? Has the mother a supreme right in some instances or has she only an equal right and in that equal right situation who will decide what life is to be saved? This is a very serious matter. If these words go to the people and are carried in a referendum whether by a minority vote of the country in a majority situation or in any other way, I am concerned that the interpretation put on it afterwards by legal people may be different from what is intended if the life of a mother is lost in certain circumstances. Who can then change the provision? Will it need a further constitutional amendment or will an Act of the Oireachtas be sufficient to ensure that the wrong interpretation cannot be put on the amendment? There are questions to be answered and for that reason any effort to change the wording must be welcomed because at least if we are being definitive we are helping the situation. I would have no objection whatever to allowing plenty of time to elapse so that the Leaders of the parties could get together and see if there is a consensus between all of us to improve the wording and still achieve the objective of those of us who defend the life of the unborn, who do abhor abortion and who have no fundamental objection to have the Constitution say so. Those of us who have those views would certainly [977] agree to having discussions along those lines but in the interim period until such other words come before me I can only vote for the wording that I in conscience consider to be the better one and for that reason I support Senator Ross.

Mrs. McGuinness: Information on Catherine McGuinness  Zoom on Catherine McGuinness  First, I should explain clearly why I intend to vote in favour of Senator Ross's amendment. It has been quite clear from everything I have said up to now that I am totally opposed to amending the Constitution in this direction. Therefore I do not particularly want either the wording suggested by Senator Ross or any other wording. At the same time, given the choice of deciding which wording there should be I consider that the wording which is suggested in Senator Ross's amendment, and let us be quite clear about it, the wording which the Government proposed in the Dáil is preferable to the wording which is now before the House.

The reason for this was clearly stated in the last statement of the Standing Committee of the General Synod of the Church of Ireland and which has received considerable support in the Synod which is sitting this week and which is the reflection of the Church of Ireland opinion on this matter. What was stated there was as published in the Gazette of April 15:

We also repeat that in our opinion a proposed amendment to the Constitution will not alter the human situation as it exists in the country, contribute to its amelioration, or promote a responsible and informed attitude to the issue of abortion.

From the outset of this debate we have expressed grave doubt about the wisdom of using constitutional prohibitions as a means of dealing with complex moral and social problems. This is still our opinion and as events have unfolded it would seem that these doubts have been well founded.

However, given that a referendum is to be held, a responsibility devolves on all citizens to play a full and constructive part in expressing their views on it wordings. In commenting on both wordings we recognise that attempts [978] have been made to take account of the complexity of the subject and of the views publicly expressed by our own and other Churches. We would also express our appreciation for having been included in the general consultations held by successive Governments.

Furthermore, many members of the Church of Ireland who valued the earlier statements by the Standing Committee of the General Synod will wish to have our views on the situation created by the alternative wording proposed for the amendment.

This is the wording that is in Senator Ross's amendment. The statement continues:

We consider that the proposed wording protects the existing legal position on abortion from being challenged in the courts as unconstitutional. The onus for legislating in this area remains vested in the Oireachtas which we perceive as proper order in our democracy. We consider this to be preferable to an amendment, the wording of which, it has been suggested, might lead to the necessity of interpretation by the courts.

It is quite obvious from what has been said today that interpretation by the courts will be the only way in which we would understand what this present wording is supposed to mean.

It is very important when we look at the alternative wording that the wording proposed by Senator Ross leaves a certain amount of freedom of action with the Oireachtas while at the same time meeting what was supposed to be the position of the people who proposed the pro-life amendment. This is what they said they wanted. They said they wanted to prevent the Supreme Court having freedom and being prevented from making the Offences Against the Person Act unconstitutional. They are offered this. What do they do? They say they prefer this wording with the “unborn” and the “equal” and so on which is going to require considerable interpretation from the Supreme Court that they totally distrusted in their previous statements and [979] were about to leap into all sorts of radical interpretations which would negative the Offences Against the Person Act. I find this kind of position very difficult to interpret unless I interpret it simply in the light of sheer dishonesty.

With regard to the wording which is being proposed by Senator Ross, it is at least preferable to a wording which no one of us, the Minister, Senator Ryan, Senator O'Leary or Senator Higgins seems to have an idea of what it means. I do not mean just a vague doubt about the edges of the interpretation but a basic fundamental doubt about what it means. At the risk of being described as a middle-class liberal, which is probably what I am, I would also disagree with Senator O'Leary about the ineffectiveness of sending the wording back to the Dáil. In this House we have the right to send legislation back to the Dáil. That is our constitutional function if we wish to use it. Quite a number of Members of Senator O'Leary's party perhaps would have been of the same opinion but perhaps they were overruled by other members of their own party. I do not feel that this is a sop to our consciences or if it is, at least we show we have consciences. Presumably the Members of Fine Gael are in agreement with their own Taoiseach in seeing the enormous dangers of this wording but just to sit there and do nothing about it which is in effect to ensure that this amendment passes with the wording proposed in the Bill is to act contrary to their own consciences. That is a great deal worse than providing what might be described as a sop to our consciences in sending it back.

If the Seanad rejects this wording it will have a psychological effect in the country. It will have an important effect on public opinion because it is not just a question of individual Senators' consciences. Even if it was, I am proud to say that I have a conscience and I am perfectly prepared to vote in accordance with my conscience. I am not prepared to accept that people should sit and do nothing and see something that their consciences abhor being passed into our legislation.

[980] The Minister cannot get out of it as he has tried to do this afternoon by blaming Deputy Woods or by blaming Fianna Fáil. Certainly Fianna Fáil have a certain responsibility in having proposed this wording in the first place but they are now the Opposition. They are not the Government. The Government are the people who are bringing this Bill before the House. They have the responsibility. If they are going to sit idly by and see the amendment passed, it is their responsibility and not the responsibility of Fianna Fáil who are a minority in this House and who could be defeated if the Government wanted to defeat them. By their decision to abstain, the Fine Gael Party are putting this wording through — the wording which they themselves objected to. The only honourable exception on Second Stage to this was Senator Bulbulia who is prepared to accept the logic of her own position and see that if she objected to the wording she must take the action of voting against it. All credit to her for doing so and for the extremely able speech with which she put her position.

Senator O'Leary says that Senator Michael D. Higgins is wrong in seeking answers to questions about definitions. He says that nobody in this House can give him these answers; that is not our job; it is inevitable that the Supreme Court must interpret the Constitution. Yes, of course it is inevitable that the Supreme Court interprets the Constitution but that is not the same as saying that we as legislators should bring in a form of wording that we simply have no idea what it means and where there is such crucial doubt about what the wording means. Interpretation of the Constitution by the court surely should be a kind of interpretation of the wording that brings out the narrow shadings of what it means, that fills out the details of what it means, or, perhaps, extends what it means as in the times when the Supreme Court said that there are unenumerated rights in the Constitution and announced certain of those rights. It does not get us off the hook as legislators. It does not allow us to say that we are throwing this piece of legislation to you, as people, and [981] to you, as a Supreme Court, and saying we do not know what it means, nobody in this House knows what it means, the Minister does not know what it means and he cannot find out from Dr. Michael Woods what it means.

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  I know what it means.

Mrs. McGuinness: Information on Catherine McGuinness  Zoom on Catherine McGuinness  Senator Ryan says he knows what it means but he must be, I think, in the company of the Archangel Gabriel alone if he knows exactly what it means.

I cannot see that we have not the responsibility to try to get a kind of wording which will at least give us a general idea of what the basis is in which we are moving and which will leave only the fine shadings of the interpretation to the Supreme Court. It is because of this that I will completely go along with Senator Ferris and other Senators, who have suggested that the last stages of the Bill should be delayed to allow an all-party committee or, indeed, a commission with expert members, to try to reach at least an agreed wording which would allow some kind of proper understanding of what it means. Indeed, both Senator Brendan Ryan and myself endeavoured to put in amendments which would allow precisely for this but we were told that our amendments were out of order, which no doubt, technically, they were. Nevertheless, that showed that we shared with Senator Ferris the view that it would be a constructive and good idea to refer this matter to an all-party committee, try and take it out of the area that it has now fallen into where it has become a creature of party politics and also an uninterpretable proposal.

I assume we will have a further opportunity on Committee Stage of discussing the actual wording of the Schedule but I should like to point out one or two things about the definitional aspect. First of all, when we are saying that we are establishing a right to life of the unborn child in the Constitution it is important that we are not putting this in the last Articles of the Constitution which are not justifiable by the courts. We are putting it into the part of the Constitution where people are [982] able to take legal action to vindicate their rights, the same part of the Constitution which will allow them to, say, vindicate the live citizen's right to life, their right to freedom of expression, their right to freedom of association, their right to freedom to practice their religion, and so on, all matters which have been litigated before the courts. Therefore, if we are establishing this right it is very important for us to look ahead and see who will be litigating this, who will be claiming this right before the courts. If we establish a constitutional right which can be vindicated by litigation we must envisage that it will happen. Clearly the unborn child itself cannot claim its own rights. In the situation which we envisage it seems hardly likely that it will be the mother who will be claiming the rights so that we must envisage the situation where a third party of some kind will claim these rights. There is, of course, ample precedent for third parties claiming rights in, for instance, the habeas corpus action. Even in the present situation where children are involved there are quite frequently habeas corpus actions taken to deal with the custody of children. This happened frequently prior to the passing of the Guardianship of Infants Act in 1964 because there was no other way of dealing with it. It is now happening much more frequently than it did in the years since 1964 because, as was forecast by some of us in the Seanad debates on the Courts Act, 1981, the removal of the custody jurisdiction from the High Court has created very considerable problems. Now when people want to deal quickly with the matter of a child being snatched or whatever they cannot use the Guardianship of Infants Act in the High Court and are going back to use habeas corpus. Therefore, habeas corpus shows that these actions, of course, are not taken by the children; they are taken by third parties of some sort, not necessarily by the children, sometimes by the parents, sometimes by the grandparents or third parties of other kinds. It is quite clear that third parties can take actions.

Who would we envisage taking an action under this right? Surely people who seem to have a vested interest in [983] trying to prevent women from getting abortions. Here, we may find a clue as to why the pro-amendment people are so devoted to the present wording. Their public statements, and the analysis of the position made by some of their leading lawyers, show quite clearly that it is their intention to do the kind of thing that has been tried by similar movements in England, and in America, by taking actions in the court either to try to prevent women from getting abortions abroad or elsewhere or, alternatively, to try to prevent bodies from giving any advice which not only has to do directly with actually procuring an abortion but which may have to do with the kinds of contraception which these groups consider to be tantamount to abortion, in other words, the IUD, the low dose pill and the morning after pill. They readily envisage actions being taken by third parties to try to stop either this kind of advice being given or, in a certain situation, trying to prevent a woman who intended to go to England to have an abortion from doing so. If this sort of action is taken in the case of the individual woman even with the quickest way the courts can deal with it properly it still would delay matters to such an extent that any form of therapeutic abortion would be highly dangerous either for the mother and, certainly, in cases where the mother's life or health was threatened it would get past the stage when it could be dealt with safely. This would be a very neat way of preventing it. It would also be a very neat way of dealing with the kinds of organisations which the pro-amendment people object to. I suggest that before we pass this wording we consider exactly what is going to come of it.

Secondly, in relation to the definitional question as regards unborn and equal rights, particularly the two matters mentioned by Senator Higgins, we should have more opportunity to deal with this when we deal with the Schedule on Committee Stage. With regard to the amendment at least it has the advantage that it leaves out the unborn and equal rights difficulties that occur in the present wording. There is no doubt that there is a [984] severe disagreement between people as to how to define the unborn, whether it is called unborn child or what. I am not so worried about the fact that it does not mention child but the fact of when does this life start. It is clear that there are certain doctors who say categorically that it is a scientific fact that life begins at fertilisation, and certain lawyers will say the same thing. There are plenty of others who disagree profoundly with this and say that it is not a scientific fact, that human life does not necessarily begin then, that they will take, certainly medically speaking, the time of implantation as being the crucial time because the life is simply not viable before it implants, particularly because of the fact that there is such a large natural wastage of fertilised ova which the Constitution simply cannot protect.

Therefore it is also important in connection with those various forms of contraception which act between the time of fertilisation and the time of implantation — if that is the way they act — for us to know what we mean by unborn. I do not think it is good enough to say that we do not know. We could go also to the situation where, as the common law always held throughout the centuries, the unborn child only became protectable, only became a human life at the time of quickening which is about the fifth month of pregnancy, at the time when a child moves. To those who use anti-abortion arguments which are based on the meeting between the Blessed Virgin and Elizabeth, the mother of John the Baptist, and who say the babe leapt in her womb, I should say that anybody who has had a baby will know perfectly well that all babies leap in the womb but they do not do so until about the fifth month. That was the common law position, that the unborn child was only a life in being when it reached the stage of quickening. We cannot actually tell whether the Supreme Court will interpret it in that way or in the fertilisation way or in the implantation way and I do not think it is good enough to say we will pass this legislation and take no responsibility for what actually happens.

The Irish version suggests the word [985]“beo”, alive. What is alive? How does one define alive in the same way? With regard to the question of equal rights, perhaps, as Senator O'Leary has said, we should be in the business of suggesting alternative wording. It has been suggested to me by one or two sources that we could at least ameliorate this by suggesting the prior right of the mother rather than the equal right of the mother. I find it very difficult to imagine any husband and family who would not support the idea of the prior right of the mother to life rather than the equal right. While certain doctors seem to be totally unworried by the situation of being faced by equal rights other equally prominent doctors, including the Master of the Rotunda and the Professor of Obstetrics and Gynaecology in the College of Surgeons, Dr. Browne, and a number of equally prominent doctors — certainly among those who advised the Church of Ireland on the interpretation of this — said they would be severely incommoded in their treatment of their patients and severely worried by the idea of the equal rights. They would be worried because it would affect not just the cancer of the uterus and ectopic pregnancy cases but also the cases where the mother is suffering from severe kidney disease or suffering from high blood pressure in which it is now accepted practice in our hospitals to deliver the baby by caesarean section in or about the 24th week when the baby has a reasonable chance of survival and the mother's life can be protected. If one had a legal statement that the two rights must be equal it would be very difficult to do anything in this case because there is no doubt that the child is at risk if one delivers by caesarean section at that stage. Therefore, the risk of the child is higher than the risk of the mother.

Radiation treatment for cancer of the breast is a point in question. If the mother's right and the child's right are equal it is very difficult for the doctor to decide whether he should do this or not. Indeed, a professional woman of my acquaintance was treated for cancer of the breast by radiation and subsequently, by an accident of family planning, found herself to be pregnant and she, in fact, [986] did go to England to have an abortion. She offered to make her name public, to stand up in public and say she did this because she thought it was the right thing to do. She asked me if I thought she should do it. I said: “You look at society round you here, you will be pilloried by these people if you do that, you will be damaged, if not ruined, in your profession”. This is the kind of society we are expecting women to live in, it is the kind of society where we are passing this hypocritical amendment and not doing anything about the problems that arise from it.

It has been suggested, by Dr. de Valera in particular, that the intention of the doctor would be crucial here and that the fact that the doctor did not primarily intend to kill the foetus would mean that his action would not be illegal. However, as any lawyer could tell him that kind of double effect intention has no significance in law. He would have to be taken to intend the natural consequences of what he was doing. He could not get away in law by saying that he had this type of double effect intention. He may be a very prominent doctor but he cannot carry over his religious reasoning into the law of the land.

For all those various reasons I consider that this House would do better to vote in favour of Senator Ross's amendment which, while it does not live up to the ideal of throwing out the amendment altogether, certainly seems to have a lesser degree of danger than the wording which we are being exposed to at present.

Mr. Magner: Information on Patrick Magner  Zoom on Patrick Magner  I feel strongly that the measure we should be speaking about today, especially in view of the fact that the Minister for Justice is present, is a law that would prohibit the leaders of political parties making promises to pressure groups during periods of election. That should be a law. Senator O'Leary said that the whole purpose of the Seanad was to bring fresh thinking to bear on legislation coming through this House, that it was different from the Dáil and should reach its own conclusions. I am afraid Senator O'Leary cannot have it both ways however much he would wish [987] to have it. Fine Gael in the Dáil were quite definite that the Fianna Fáil wording was seriously defective and damaging to women. They said that in the Dáil. Yet, in this House they are being presented with an opportunity to send it back from whence it came and to tell the Dáil that we — not just Fine Gael in the Dáil Chamber but the Labour Party and Independent Senators in this House — concurred with their view that the Fianna Fáil wording was extremely dangerous and should not be put in the form of a referendum to the people. Yet the Senator accused Senator Ross of being lazy in putting forward the Fine Gael amendment. I must say that they are being more lazy still by not voting for it because, after all, it is their amendment.

Most of us realise that if this wording was sent back to the other House we probably would see an all-party committee being established to consider it because we have opened a Pandora's Box. We now see the damage we are about to cause the country. Instead of leadership we have sown confusion and fear especially in the hearts of women, mothers and mothers-to-be.

We now have another ludicrous situation of one Chamber which is almost 99 per cent male and another Chamber in Maynooth which is 100 per cent male and celibate deciding what is going to happen to the mothers of Ireland. It is an almost Irish situation in many ways.

I had a letter from a constituent yesterday who told me that my main duty was to listen to my Bishops and obey them. I want to answer that constituent in public by saying that I will follow my conscience by voting against this amendment any time I get the opportunity. I believe I will get two opportunities because I intend to vote against Senator Ross's amendment and I intend to vote against the wording when it is finally put to the House on the concluding Stage. We are doing something which is extremely dangerous, introducing into the labour wards of Ireland another specialist, not another gynaecologist, not a doctor but we are introducing a lawyer who will start talking to the doctor at the [988] crucial time and define for him the equal right or what the Constitution means by the equal right. It is very significant indeed that no answer has been given to Senator Higgins who raised the problem or to Senator McGuinness who spoke about the intervention of a third party, which is a real live possibility. Who speaks for the foetus? That could become the question when we get down to brass tacks on this.

There is terrible confusion on the wording. We have the Fianna Fáil version, the Fine Gael version, the amended version, the Labour Party version of sending it back and so on. The entire medical profession is divided on the issue. Legal personalities right around the country are divided on it and yet we expect the ordinary people of Ireland to make a balanced and careful judgment, to put something into the Constitution that may stand for many generations.

It seems strange that after a general election period during which we went around the country asking people to trust us and vote for us — collectively as politicians — one of the first acts we do when we are elected and come into the Houses of the Oireachtas is to pass a law to make sure that we cannot pass a law. It is a rather strange and unique situation that we do not even trust ourselves, never mind the Supreme Court. Again, I suppose it is par for the course in a lot of cases.

I am an eternal optimist and I believe it is not too late. If the Fine Gael Party in the Seanad took their courage in their hands it would be appreciated by the people outside. They should support their own amendment and send it back to the other House with the recommendation that an all-party committee be formed on it.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  What has the Senator's party done so far?

Mr. Magner: Information on Patrick Magner  Zoom on Patrick Magner  It is a Fine Gael amendment, not my amendment.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  Where is the Government?

[989]Mr. Magner: Information on Patrick Magner  Zoom on Patrick Magner  With all respect to Senator O'Leary, a fellow Cork man, he can be extremely touchy at times. It is the Fine Gael amendment and he should not ask me to vote for it if he has not the courage to vote for it.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I have the courage not to vote for it.

Mr. Magner: Information on Patrick Magner  Zoom on Patrick Magner  It seems very sad indeed that when the country on an all party basis, without dissent from any side, has established a Forum on Northern Ireland, a council in which all parties are willing to sit down to discuss our relationship and our future in the entire island of Ireland, one of our first acts is to introduce legislation which is divisive, Catholic and sectarian and still pretend we can go forward with clean hands to this Forum and say: we are prepared to listen, to talk and share the best of what is Irish. We offer in its place this sort of legislation.

I feel strongly that if this is returned to the Dáil it will never emerge because politicians now realise what they have unleashed on this country. This is almost the final opportunity for us to send it back. Even though Senator O'Leary might get upset again I must tell him that it is an opportunity——

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  The Senator should not encourage interruption.

Mr. Magner: Information on Patrick Magner  Zoom on Patrick Magner  He should not allow the Fine Gael Party and himself to miss that opportunity because it would be appreciated in the country.

I would not like to give the impression simply through omission that I did not think that Fianna Fáil, true to a lot of their machinations in the past, were totally opportunist. If there was a demand that they perceived that the devil should be canonised then such a Bill would be put before the House to canonise him. If that is where the votes were that is what they would do. They have no credit at all in this. At least I give Fine Gael credit for concerned confusion which I sincerely hope they will be able [990] to sort out between now and whatever time the Chair calls the division.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  The Senator's party are in Government.

Mr. Magner: Information on Patrick Magner  Zoom on Patrick Magner  It is a two-party Government.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  There is only one Government.

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  It seems to me that the trouble with this debate is that the same questions are being asked and the same answers are given. The same questions are being put as were put in the debate last week and I am sure the answers will not give any more satisfaction than they gave on the last occasion. Nevertheless, as this side of the House was challenged to answer certain questions I feel obliged, for the second time for me, the umpteenth time for other people, to answer some of the questions.

I will deal first with the question, what does the word “unborn” mean. This, of course, has been dealt with again and again. Senator Higgins raised this question. It is a tendency of academics to be somewhat pedantic and only a pedant would make the point that it is not clear what “unborn” means in the sense that it is not followed by unborn baby or unborn something else. The Constitution already includes a number of cases where something similar is used. In Article 45.4.1º there is reference to the aged and the infirm. It does not say the aged citizen, aged woman or aged man, it just says the aged and it also says the infirm. I suppose a pedant would say that this is wrong, is not exact and cannot be understood but that is really lacking in common sense. Everybody knows in the context of this amendment what the “unborn” means.

Senator O'Leary raised a second aspect of this which, of course, is a much more substantial one, what does “unborn” mean, at what stage would the child have to be to be “unborn” to be covered by this amendment. That is certainly a very important point but it is so complicated that it would be quite impossible [991] to define it in such a way that no doubt would be left. It would be necessary to put some sort of medical dissertation into the Constitution to deal with this matter, to put the pros and cons and finally to come down. Of course, that is clearly quite impracticable. What has to be done is to put in a word and allow the Supreme Court — if the matter ever arises — to interpret that in the light of medical, moral and legal opinion at the time, to have regard to the climate of public opinion. If the point arises as to exactly what stage the foetus is covered by this then they may have to interpret it. There is nothing wrong with allowing that kind of interpretation to the Supreme Court. That is one of the very useful things the Supreme Court does, to interpret Articles of the Constitution as time goes on, having regard to the climate of public opinion, medical views and developments at a particular time. It is a very proper function for the Supreme Court to define what exactly that means in the light of opinion, legal and other opinion, at a particular time. That is the only way to approach this matter. If we attempted to put a medical definition into the Constitution it is quite possible that in a relatively short time further views and opinions would become acceptable which would mean that the definition in the Constitution would no longer be valid.

The proper way to do it is to do it as it is done here. As far as the amendment on Committee Stage is concerned, it is no help whatsoever because it refers to abortion. You cannot define what abortion really is, if you are going to approach it in this way, unless you decide at what stage it is abortion and at what stage it is not. Senator Ross's amendment, from this point of view, is no help whatever.

The question that has been asked, by Senator Higgins in particular, is to define what exactly the position would be in various medical situations in which the life of the mother and the life of the child would be in jeopardy. I am going to attempt to give an answer to that. I am not answering it because I have any pretensions to any medical expertise, but I [992] am going to give an answer on the basis that I can at least, like Senator O'Leary, express a legal opinion which, of course, could be wrong. Senator O'Leary said that he could be wrong. I accept that I could be wrong. I would also like to mention that the Attorney General could be wrong and the Director of Public Prosecutions could be wrong. Legal opinions are merely opinions.

In these very complicated medical situations which were brought before us, the position will be, if this amendment is passed, exactly what it is at present. No change will be made in the law by this amendment. This is an amendment of the Constitution. It will not per se make any change in the law. The law which will be applicable to this kind of situation is the law under the 1861 Act which exists at present and which, presumably, will be there in the future until such time as some other law takes its place, and in that case the Constitution will ensure that that new law will be similar, basically, to that which is there at present.

So the answer to these complicated questions that are asked about medical situations is that what has been permitted up to now will be permitted in the future. There will be no change. The purpose of this Bill is not to change the law to do the exact opposite: it is to ensure that the law will not be changed in such a way as to allow abortion in the future. I know that Senator Brendan Ryan was very concerned about the view expressed by the Director of Public Prosecutions, that he might be affected, that he might have to take a different view in the future as opposed to that which he took in the past. He has expressed a view about that, a very circumspect view, if I may say so. I would be willing to bet that if this Bill is passed there will be no change in the approach of the Director of Public Prosecutions to matters that would come under this heading, once he has looked at the position.

One of the points that has been raised is the question of the dilemma of a doctor having to decide between the life of the mother and the life of the child. Allegedly, because of this Bill he would be mesmerised, unable to act. On the one [993] hand the life of the mother is threatened; on the other the life of the child. The suggestion is that he would stand mesmerised saying, “I cannot do it, save this life or that, because they are of equal importance and consequently I can do nothing”.

Anyone who believes that would believe virtually anything. A somewhat similar situation could have arisen in the medical profession in recent years. That is when a life support machine is used. Life support machines are in relatively short supply and if you had a doctor with two critically ill patients, both of whom needed the life support machine to survive, and if he has only one machine, the contention, if we are to accept what is being said about mother and child, is that he should stand there mesmerised saying, “I cannot give it to A because if I give it to A, B will die, and if I gave it to B then A will die, so I cannot give it to either of them”.

I would go as far as to give this as a legal opinion — I would not give it as a certainty — that no court in this country would criticise a doctor or take any action against him because he allowed one patient to die by giving the life support machine to the other. This is the kind of situation in which people forget these dilemmas. It is totally lacking in commonsense. If a doctor has to make a decision he would make it in the light of his expert opinion. As far as this Bill is concerned it is certainly not going to change the position that existed up to now when he used good practical common sense and has never been criticised or penalised for it, and will not in the future.

Finally, there is the question of the confusion and uncertainty about the wording that exists in the original Bill. It is alleged that nobody understands what it means. I suppose if one goes on saying again and again, that the wording is uncertain, that the wording is confusing, that nobody understands it, some people will accept that that is the position. I have to go on saying the opposite because I believe in the opposite: I believe that the wording of the original is quite certain, as certain as anything of this kind can be. [994] I am sorry to have to repeat what I said on the Second Stage: I am repeating myself because the anti-questions and the criticisms keep on being repeated. Part II, 3º of the Schedule states: “The State acknowledges the right to life of the unborn”. That is a simple statement of principle. Anyone who cannot understand that I cannot help. The second part of the sentence states: “with due regard to the equal right to life of the mother”. Again, that seems to me to be a perfectly understandable statement. You may not agree with it. You may think it should not be, but what it means is quite clear. The reason it is there, and it is the kernel of the amendment, is that there was some doubt as to whether an unborn child had equal right with the mother. I do not think it is possible to help anybody who does not understand that to understand it. It seems to me to be perfectly simple and very easy to understand. The remainder of the amendment states “guarantees in its laws to respect, and, as far as is practicable, by its laws to defend and vindicate that right”. That comes out of the Constitution. It is already used in the Constitution about other fundamental rights. It has never been challenged in the past by any court. It has never been alleged that the meaning of it was uncertain and it has survived the 40 years or so that the Constitution is there. Again I cannot understand why it should be suggested that that is uncertain or vague.

There are many people who do not like this amendment and who think it should not be passed. To translate that dislike of it into the assertion that it is unclear and uncertain is not the proper way to approach it. In the course of the Second Stage debate, those who opposed this Bill had to have some kind of amendment, they had to put their opposition to it in some words, and the way they did it was to say that it was uncertain and not fit to go before the people. That was a good means of doing it. I do not accept the criticism, the contention that this is uncertain and unclear. It is not the real reason why people are criticising this and doing their best to prevent it from going before the people. All we are doing is allowing the people to give their views as [995] to whether this amendment should be passed. Certainly it cannot be regarded as anything but essentially democratic to allow the people to give their view on something. This controversy has reached a stage when the only way it can be dealt with is to allow the people to say what they think.

Mr. Robb: Information on John DA Robb  Zoom on John DA Robb  I contributed to the Second Stage and it certainly is not my intention to go over much of the ground that I covered the last time. Nevertheless, it may be necessary to repeat one or two points I made. Before starting I would just like to say that I feel a certain degree of sympathy for the position of Senator Brendan Ryan who has had a considerable amount of criticism since his previous statement. I have heard a lot of that type of criticism over the years and I wondered recently whether it would be provident to take up the offer in the Coleraine Chronicle to purchase a small farm in Rathlin Island, because when the people of Northern Ireland write to you and tell you that the sooner that you get into what they call the Free State the better they will be pleased; and when people down here start writing to tell you if that is the last word you have to say about the abortion issue then the sooner you leave the South of Ireland the better they will be pleased. Perhaps it might be provident to think about Rathlin, the disputed island.

Anyone who has any doubts about the position of Senator Ryan should read the magnificent address he gave in the proCathedral which I think is an illustration of great Christian concern, combined with tremendous social compassion on this whole issue, particularly in relation to the great torture of the women involved in having to make the horrendous decision about whether to keep a pregnancy which presumably they would love to have but for one reason or another, through fear or social prejudices, or background, they feel they cannot go through with.

When I look at these two proposals of Fianna Fáil and Fine Gael I think I would go some way with Senator Eoin Ryan to say that if I was having to vote I would [996] certainly find it much easier to understand the Fianna Fáil amendment than the one proposed by Senator Ross. Senator Ross's, as I read it, and the original Fine Gael amendment, are one of these things that you sort of get and do not get; I have it and I have it not. I would certainly think that the average person confronting this amendment in a polling booth would have great difficulty in understanding what it means.

On the other hand, I believe that taking it at its face value, for the person who is having to make the decision whether to say “yes” or “no” to the amendment, the Fianna Fáil wording is simpler. That is one matter. It is quite a different matter if you happen to be the practitioner involved. I do not agree with Senator Eoin Ryan that the word “unborn” is as simple as it sounds. We have heard a lot about the definitions of when life begins, and many people have come to the conclusion that it begins at the critical moment of conception. That is a definition which I would agree with.

I would go on to ask where does life begin and where does life come from? I would qualify it by saying that new life begins at the critical moment of conception. If we try to be sensible about it and think of the unborn basically, we are talking about the development of that new life up to but not beyond the point of the division of the umbilical cord when the foetus is no longer totally dependent on the mother.

I would be concerned lest the statement as is stands in the Bill going into the Constitution might also imply a ban on contraception if it came to be concluded that in fact what we mean by the critical moment of conception is the onset of new life. Are we then to interpret the word “unborn” as anything that happens before the moment of parturition? I would like to ask the Minister that question. Could we have clarification on it? Can we be absolutely certain that we are not moving into the area of contraception as well as abortion along the lines of the argument that I have advanced?

“With due regard to the equal right to life of the mother”: any doctor, or practically all doctors will take the line which [997] has been advocated by Senator Eoin Ryan. He is right that any doctor with any conscience from time to time has to make decisions and choices which many other people do not have to make in the life-death situation that sometimes confront us. It can happen, for example, at a time of civil turmoil when you might have four very seriously ill people to deal with and you have no help, that you may have to make a choice as to which one you are going to deal with first, and someone may die as a result of that choice. That is something you have to live with.

In exactly the same way, taking an example which Senator Ryan has eliminated, one has got to live with one's decisions. However, I do not agree that it is simply a matter of common sense and good medical practice and well-tuned medical conscience. I say this for two reasons. First, I can think of two very good examples from the last 13 years. On one occasion I brought home 13 bullets in 13 bottles and because I believe in the essence of the Hippocratic oath and in the one-to-one relationship between myself and the person who comes to me for treatment, I was not prepared to hand the names and addresses of the recipients of the contents of the bottles over to the authorities. I well remember it. I was on a holiday in Kerry when I received the message to say that I was to hand over forthwith to what would have been the equivalent of the Director of Public Prosecutions the material in my possession, along with the names and addresses. We had a tremendous wrangle for a number of months. It terminated by a distinguished lawyer in London saying that as far as he was aware the material in my possession was the property of the recipients — a rather nice way to put it. Nevertheless, it implied that I had to write to the recipients to find out whether they were prepared to have their names handed over.

I am trying to say that the powers that be, who were prepared to subpoena me to court over this, in a legal sense definitely would intrude into medical practice, and the medical practitioner has a conflict situation between how he relates to the State and how he relates to the person. [998] There is a difficulty there and I do not think Senator Ryan was doing it full justice.

We come to another point, the phrase “as far as is practicable”. Does this refer to customary medical practice? I would like to ask the Minister that, because if it does we must remember medical practice differs and medical interpretations differ, and even the ethics to some extent, differ, depending upon the culture, tradition and background of the society in which people live, and there certainly is a slight difference of approach to this problem between the North and the South of Ireland. I have to ask the question I asked on the Second Stage: are we talking about a Constitution that refers to the 26 counties of the Irish Republic or are we referring to a Constitution which, by implication, refers to the 32 counties? If we are accepting that the Constitution refers to 32 counties rather than 26, then I would suggest that “as far as practicable”, if not now, sometime in the future, will be open to very wide interpretation depending upon what could be called customary medical practice in relation to two somewhat different cultural approaches, to contentious problems such as the one we are discussing.

I can take one example of my own case which I think I made clear the last day. From a personal point of view I would find it extremely difficult to participate in an abortion for any reason and live easily with myself afterwards. Nevertheless, I was in a theatre block once where a young girl in her teens was being attended by a gynaecologist following a gang rape. That girl had been very severely injured, and while I cannot say for certain whether she had a curette on that occasion, I do not think that I would have found difficulty, having been in that theatre block if I had known that curettage had taken place.

There are three areas of the proposed amendment, the Fianna Fáil wording, which give me some concern. I would like to have the Minister clear up whether “unborn” really means between the critical moment of conception and the moment of parturition which seems to be the implication of the thrust of Senator Ryan's statement. The difficulties for the [999] profession can be considerable in certain areas.

I gave a talk in Dublin some years ago on the difficulties of the doctor, the prisoner and the police, and there again I was trying to point out the conflict between the one-to-one ethical relationship between doctor and patient, which should be the paramount issue at stake. Yet there was a conflict between that and how the doctor related to the State. I was barely back in Ballymoney before I was being hauled over the coals by the institutions that at present prevail in the North, because it was seen to be a challenge to the position of the medical profession in relation to the State, in addition to how it related to the patient. Therefore, it is not just as simple as it might appear.

I mention again “as far as practicable”, because of the arguments we have heard advanced on both sides of this House and because of the conviction and the sincerity with which the different views are held, and perhaps above all else, as Senator Andy O'Brien said earlier today, what we are all concerned with is in fact protection of life that cannot protect itself, and at the same time to try to establish in Ireland a social climate in which it will become less and less likely that tormented women would want to end pregnancies for one reason or another.

Some suggestions were made here today about the possibility of further discussion. I would agree with that. It is a very important issue. A Cistercian priest suggested in The Irish Times the Churches should come together and decide what should be acceptable to them. I would support that view. I also believe that the idea of referring this to an all party committee is a good idea and that as a result of the debate that we have had and that as a result of the extensive coverage we have given to the issues concerned that we might well come up with wording which the people of Ireland might come to accept. For the reasons that I gave the last day and because of the doubts I have today, I am left in the position I was in at the end of the Second [1000] Stage when I could not support amending the Constitution in this manner at this time for the various reasons given.

I might just throw out one other suggestion. We have got a forum for a new Ireland which is about to be launched. It might be relevant to refer this to the forum if indeed you believe sincerely that the Constitution of the Irish Republic is a Constitution for the 32 counties rather than one in particular for the 26 counties. I would certainly be glad to hear what the Minister feels about a number of the points I have raised.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  The real test, it seems, is to judge the correct interpretation of the word that seems to have upset so many of my colleagues on the Government side of the House — I have to be careful here — and my colleagues behind me, the Independents. The one single word, “unborn”, in the text of the proposed amendment to the Constitution, should not be considered in isolation from the full text, and most of the speeches the last day, and indeed today, are singling out the one word “unborn”. I repeat I do not think the word should be taken out of context, just in isolation from the full text. In particular it must be read into the context of the whole reference in the amendment, namely “the right to life of the unborn”. This can only refer to unborn life.

Senator O'Donoghue at an earlier stage today was proposing new wording, “unborn child”. It is not necessary to refer to the life or the right to life of the unborn life or unborn child because we understand what “unborn” means, but there is confusion about it. If you decide to create confusion — Senator Magner referred to some kind of confusion a while ago — and go about it in an organised fashion, you certainly can do it, and I am as good as any other politician about doing it when it suits me.

Article 20 of the Constitution contains a guarantee to the mother and this is fully recognised in the proposed amendment. We support the proposed amendment before us because it creates a constitutional protection for the life of the unborn, side by side with that of the life [1001] of the mother. A mother has a constitutional right, as I said last week, and we have guarantees from all the top professors of all the universities, and we have quite a few academics in this House. It is something about which I at times ask myself would it have been a blessing if I had got the chance to be one, and more times I am thankful that I did not get the chance because they are certainly more confused than we are when talking about ordinary everyday living.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  For the record, a professor in Trinity College is not in favour.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  Thank you.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I know the Senator does not want to make a mistake.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  I have made many. Senator Ross today said we cannot be trusted. We are every day concerned about who trusts us as politicians any more, and I was appalled to hear a colleague of mine in this House today saying that we cannot be trusted. I presume he was talking about Members of this House, but what he should have said is: “I cannot be trusted”. That is he, not us.

There is a big job to be done in education and we have a very switched-on Minister at the moment and I would suggest that she and future Ministers might take a more serious look at education in this field. There is concern among all of us that if we put this amendment to the people and go away it will achieve nothing and that we will not do anything further about the expecting girls and unmarried mothers and all those women who have these abortions. I would suggest to people who are not members of voluntary organisations, and who have nothing else to do, that they would apply themselves to helping these girls who will continue, as is admitted by all of us, to find themselves in that sad situation. There are people who criticise and stand back and do not help anybody. I want to make reference to what Senator O'Leary said earlier on today. He said he disagreed with the Attorney General, Mr. Sutherland, on the word “unborn”.

[1002]Professor Hillery: Information on Brian J. Hillery  Zoom on Brian J. Hillery  May I interrupt the Senator? It is proposed to suspend the sitting from 6 p.m. to 7 p.m.

Sitting suspended at 6 p.m. and resumed at 7 p.m.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  I was reminded this evening, when I was interrupted so graciously by Senator Hillery, of a former famous statesman of this country who said: “As I was saying when I was rudely interrupted,” but I will say “as I was saying when I was graciously interrupted.” Senator O'Leary rejects the use of the word “abortion” in a constitutional amendment because it is too vague. That word is also in the Fine Gael draft, so this means he is saying that not alone are we using vague words, but so are Fine Gael. Senator O'Leary said it was quite proper for an amendment to prevent both the courts and the Oireachtas from introducing abortion.

Senator Higgins came to my aid before the break and stated that a professor of Trinity College did not agree with the amendment, and he was very gracious about it; he was “aiding” me, to repeat the word he used. He did not aid me because Professor Bonner does agree with the amendment — I presume it is Professor Bonner the Senator was referring to when he mentioned the esteemed professor from Trinity. As I said earlier, I am not familiar with all the academics and maybe there are two Professors Bonner. I repeat what I said last week: all the professors — Professor Bonner of Trinity, Professor Eamon De Valera of Dublin University, Professor Jenkins of Cork University, Professor O'Driscoll of Dublin University and Professor O'Dwyer of Galway University — all support the amendment.

Senator Higgins is worried about the medical world. This field has been cleared by all the men serving there, and they are the men who teach. I do not know who we are to believe if we do not believe the top men. To cause more confusion it is worth noting that the Taoiseach several times, and on the television programme “Today Tonight”, 4 December, [1003] 1982, stated “We were pleasantly surprised because we had feared that it would be a negative kind of formula which would attempt to lay down the conditions in which abortion should be illegal.” In the same programme the Taoiseach — in case there is any confusion, the Taoiseach is Deputy Garret FitzGerald — said “What we have proposed was that the amendment should be literally a pro-life amendment which would strengthen the life of the unborn and I was very relieved the amendment took that form”. These are the Taoiseach's actual words. He is using the word “unborn”. As everyone will recall from November 1982 to January 1983 this amendment was widely supported and acclaimed by politicians, all the churches and the general public until a few people decided to go off on a prank and make it a political football. I am sorry it has taken this sort of line because it is something the two major parties are really at one with.

As a serving Member of this House, I want to dissociate my colleagues and myself from those dreadful letters that were sent to some of our colleagues — Senator Bulbulia, Senator Howlin and Senator McGuinness. I would like to say how strongly I feel, and I am sure I am talking for my colleagues on this side of the House about this and we wish to dissociate ourselves from these head cases. I have to put this on the record. I am not a member of the pro-life campaign but I felt very sorry for my colleague, Senator Bulbulia, when she read out that appalling letter last week. I must put it on the record of the House.

Mr. Fitzsimons: Information on Jack Fitzsimons  Zoom on Jack Fitzsimons  I would like to associate myself with the remarks of Senator Honan when she condemned those scurrilous and filthy letters. In any cause there are people who jump on the band wagon, and I would condemn them completely.

We have arrived at the stage when the same questions are being asked and answered. I have read all the Dáil reports and I have remained in the House while this debate has been in progress and know there is nothing new I can add and [1004] I know I cannot approach this from a different angle. It was said at the start both in the House and outside, that this was a divisive and sectarian issue. I read a report in today's The Irish Times under the heading “Abortion issue not Sectarian, speaker says.” I would like to read two short paragraphs of that report, It says:

The Rev. Cecil Kerr, Rostrevor, Co. Down, said yesterday that he believed that the Church of Ireland General Synod should make representations to the British Government to ensure that the British abortion legislation was not extended to Northern Ireland.

The proposed amendment to the Constitution should not be seen as a sectarian issue, he said at the General Synod in Dublin. The right to life is the most fundamental of all rights. Over the past 20 years there had been an unprecedented assault on the rights of the unborn child. Now over three-quarters of the world's population lived under laws which, in practice, often actively discriminated against defenceless unborn children.

What we have here is a question of human rights. With regard to the amendment and the sentence “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”, it has been said on many occasions that this is difficult to define precisely. Would a 15 or 16 year old child doing the intermediate certificate examination find it very difficult to parse this sentence? I do not think so. Like Senator E. Ryan, I believe that if we repeat something often enough, like the king's suit of clothes, we begin to believe it ourselves.

Senator Higgins asked for an explanation of a number of words. It would be arrogance on my part to feel I could give some information that would satisfy him or any other Member who questioned the wording, but I can justify this in my own mind and think aloud as I go along. The word that has created the greatest problem is “unborn”. Senator Robinson at [1005] great length said that this word as a noun was not included in any dictionary she used. Of course it is not a noun, and is not intended to be a noun. Everybody agrees it is an adjective. When we were at school we would have said it qualified a noun, but what that noun is is the question. It could be “child”, “being” or “human being”. Somebody asked if it referred to a human or an animal. In the sense that it is used here, it is obvious it refers to the gestation period of the human being or, to be more precise, to the human being during this gestation period. From listening to other contributions, I realise there is no problem about the time when this unborn period comes to an end; it is the period of birth. The only difficulty seems to be to define the moment of conception. I do not think this is a matter of such great importance as has been made out here. It is probably a philosophical or a theological matter. To speak in a meaningful way on this we would have to understand the medical and legal complications as well.

The Senators who have contributed related this problem to the question of using contraceptives that might be termed abortifacients. This was clarified in the other House. Senator Ross wanted the word “unborn” defined. He said it was ambiguous and that it would make some of the contraceptives now used illegal. I already read into the report a long quotation from Deputy Woods, column 2026 of the Official Dáil Debate, 27 April, and I would like to give a very short quotation from Deputy Woods, column 2025 of the same date. He said:

The Minister has asked me to answer some questions in relation to our Bill. He referred to the word “unborn” being ambiguous. He must be one of the few people in the country who makes that claim. One could say “the right to life of the unborn life” if the Minister felt it was necessary but most people would say that that is not necessary.

In the same Dáil Debate at column 2162 Deputy O'Hanlon stated:

The Minister for Health spoke this morning about the 55,000 women on the pill here and the 2,000 to 3,000 [1006] women who use intra-uterine devices, the importation of which is illegal. This has nothing to do with this amendment. If written into the Constitution this amendment will in no way change the existing law and has nothing to do with what is being used as a contraceptive device. Even if one were to accept that the intra-uterine device was an abortifacient it would be impossible to bring a court case and to prove it because the first thing one would have to do would be to prove that the woman was pregnant in the first place.

That clarifies the matter to my satisfaction.

Senator Ross referred to the phrase “with due regard to the equal right to life of the mother” and said this placed operations which were presently being practised at risk and would make them illegal. From what I have studied, heard and read, my belief and understanding is that the situation in medical practice at present will be no different if this goes through and the use of contraceptives will be no different from what it is at the moment. This was also very well answered by Deputy O'Hanlon on 27 April, at column 2167 of the official report when he said:

The Pro-Life Amendment Campaign group consist of eminent legal and medical people and they are satisfied that the original wording proposed would not in any way cause problems for the medical profession. In a statement which they issued yesterday they had this to say:

“Let it be clearly stated: there is nothing in the original form of words which would pose the slightest danger to Irish women. No established medical practice would be interfered with, doctors would not find themselves powerless to intervene to save the lives of mothers and nothing in the amendment would oblige any court anywhere to forbid operations already legally and ethically permissible”.

The objections that have been raised here by all those very sincere Senators have already been answered, some of them many times. Senator Higgins also asked [1007] what was the meaning of the word “vindicate”. It simply means sustaining or maintaining the cause of this right successfully, and the word “successfully” is important.

A few other matters were raised which were not of great importance. Senator Ryan spoke about guilt and confusing girls who had abortions by this accusation of guilt. Senator Ryan and I profess the same religion and he must know as well as I do that the Catholic Church does not point the finger of guilt at anyone.

Senator McGuinness spoke about the unborn child who could not claim rights and that a third party must do that. The same applies to a child. Senator McGuinness referred to this waste of fertilised ova. As a layman my understanding of the medical situation is that if conception takes place there is no other fertilised ova and in the case of conception not taking place there is only one lost fertilised ovum. There is no point going into the other matters that have been raised because they have already been answered and there is no point in repeating them. My understanding is that the 1861 Offences Against the Person Act will still be law.

I want to mention the equal right of the mother. To look at it from an external point of view, it is important for the unborn baby that the mother would have this equal right to life, because the unborn baby cannot live and is not viable without the mother, whereas the mother can live without the unborn baby. It is most important to look at it in this light. The word “due” in important. I take it this means appropriate or correct.

The figure of 5,000 plus who have abortions in England every year is a tragic figure. Even one abortion is one too many. With this rising number of women who have abortions we will reach a stage when many people — women, girls, husbands and other men involved — could create a climate calling for legalising abortion. I have gone into this matter in great details and have listened attentively to what all the Senators have contributed and have marvelled at their sincerity. I too am concerned. I believe these words [1008] are correct. As Senator Ryan said they are not all that difficult.

Mrs. McGuinness: Information on Catherine McGuinness  Zoom on Catherine McGuinness  I wish briefly to reply to a couple of the points made by Senator Ryan who sees no difficulty in these definitional problems. While Senator Ryan says there is no problem about calling it the “unborn”, in the next sentence he says that defining the unborn would require an entire medical dissertation and therefore we could not put it into the amendment. It seems that this is admitting precisely the point that both Senator Higgins and I have made. If one uses a phrase or word which requires a medical dissertation to explain it then one is putting something unclear in one's Constitution. While it is quite easy for him to say that it will not create any problem as far as the law is concerned, and it does not matter leaving it to the Supreme Court and so on, I would point out that it is made quite clear from the figures given by the Minister for Health in the other House that the matter of actual abortions, but much more so, the matter of different varieties of contraceptive techniques affect thousands of women.

There is no problem for middle aged lawyers who do not have to face up to these questions, or decide what sort of contraceptives they are going to use, but it is a vital question for women and, in particular, for women of middle years who are over the age when it is safe to use medical contraceptive techniques, such as the pill, but may be highly at risk if they become pregnant because of diseases such as high blood pressure and kidney disease which are often associated with these middle years. These very women who may be medically advised that it is highly risky for them to become pregnant are the very women to whom the IUD may be the prescribed method of contraception. To say that this will change the present practice in the present law in no way at all as far as contraception is concerned is simply to close our eyes to what may happen. Certainly, as far as the Offences Against the Person Act is concerned, it will not change it but to say that we are not changing the law [1009] by changing the Constitution is evading the issue that those who want to change the law can now very readily do so by taking constitutional action. We may be very well assured that they have every intention of doing so, particularly as their leading legal leading spokesman, Mr. William Binchy, has quite clearly set out in various legal treatises that he foresees that various actions, injunctions and so on could be taken and, indeed, that he wants the criminal law to be brought up to date so that women who go abroad for abortion will be prosecuted.

Leaving aside the change in the criminal law, one has only to look at what has been done in England by similar groups, where they have specifically brought actions to try to prevent clinics from prescribing the IUD and, most recently, to prevent them from prescribing the morning after pill in cases of rape. Only a couple of days ago in the newspapers we read of the opinion given by the English Attorney-General in which he decided that the morning after pill was not, in fact, an abortifacient precisely because it did not act after implantation, but that it was quite a complex issue and that the legal issue which he was discussing was whether conception occurred or whether the unborn child had the right to be protected before implantation, or whether it was an abortion if it took place between fertilisation and implantation.

This is not an unimportant question which can be just pushed to one side as something which does not really matter. It is a vitally important question and one which will be brought before the courts, in my opinion, because that is the policy of the kind of groups who have been pushing this amendment. Let us not think that the Irish group are a thing unknown and suddenly thought up by many Irish doctors and lawyers who were worried. Their money comes from America and many of their techniques come from America. They have admitted quite freely in public that they have got well over £100,000 from America to help to run their campaign and they are also advised by people from England. This has been made quite clear and, therefore, one assumes that they will continue to [1010] follow the same policies as their sister groups in other countries do. So, one must expect that they will try to take actions like this. As I said before, they like this wording because it leaves this door open.

Secondly, Senator Eoin Ryan was very scornful of the idea that doctors might be doubtful when faced with the equal right of the mother and said that anybody who would believe that would believe anything. I find it very hard to understand that he said this when the Master of the Rotunda — who, after all, is a doctor dealing with the birth of children every day of his life — and Professor Alan Browne, who was Master of the Rotunda for a period of seven years and is now Professor of Obstetrics and Gynaecology in the College of Surgeons, have both publicly expressed their grave doubts about how they would be able to treat their patients if this were put into the Constitution.

It is not just the question of the doctor saying to himself, “Well, maybe it will be all right and maybe it will not” and the lawyer being able to say “It is perfectly all right. The doctor is quite protected by the legal position”. An ordinary doctor faced with the problem is not going to have time to find out a legal opinion about it. He has to act now, quickly and he may very well be doubtful. I find it very difficult to see how he would not be, if there are equal rights. Most legal actions are about priority of rights. Your legal action is whether my right is a better right than yours and should be enforced, or yours is a better right than mine. But if you set off from the position that the two clashing rights — and in this situation they are clashing rights — are equal, how does the law adjudicate, never mind how the doctor adjudicates between them? I genuinely cannot see how he says that anybody who would believe that would believe anything, particularly in view of the medical opinion that has been expressed.

If you say that there is an equal right, you cannot say that the mother's right to life is a prior right over that of the child in a case of doubt, nor can you say that the child has a prior right in a case of [1011] doubt. Therefore, you are left in a situation where there is literally nothing that you can do. I certainly know that not only these two leading doctors whom I have named, but many other doctors do feel this, whether Senator Ryan believes it or not.

Dr. O'Donoghue: Information on Martin O'Donoghue  Zoom on Martin O'Donoghue  I want to offer one or two comments and perhaps I can clear one or two points along the way. Reference was made to medical colleagues in Trinity, whether it be Professor Bonner or not. I can clarify it by saying that, as I understand it, Professor Bonner has supported, if I can put it in that form, the pro-life position — the amendment as put forward in the Schedule. It is Professor Hourihan who is the dean of the medical school who is supporting the anti-amendment campaign, if I can put it in that form. Does that clarify the position?

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I am very grateful to the Senator.

Dr. O'Donoghue: Information on Martin O'Donoghue  Zoom on Martin O'Donoghue  Indeed, that point touches on one aspect of what Senator McGuinness has just said. My attitude to this whole debate, as I hope I made clear earlier, is that we have to assume that everyone is trying to act as responsibly and as reasonably as possible. To again use Senator Robb's phrase of a few weeks ago, “To be human is trying to entertain the possibility of doubt”. When people look at words and at possible situations and express conflicting opinions or interpretations, that is saying nothing new about the human condition. We are familar with this problem in every walk of life. It arises in every generation and in all sorts of situations. I certainly assume that while some people can look at one set of words and say “They satisfy me”, others can look at the same words and say; “I have difficulties, I have doubts, I have reservations”. I assumed, especially of the Fine Gael Party, that their decision to move away, in effect, from their original acceptance of the Fianna Fáil proposal must have come from some fairly substantial body of opinion on their part that what at first inspection appeared [1012] satisfactory or acceptable proved on closer examination and more detailed discussion to give rise to these sorts of doubts.

I come back to the view I was expressing earlier that if these doubts have arisen and if reasonable people are expressing conflicting possible interpretations, surely it is our job as politicians to try to deal as best we can with that type of conflict. That is what politics is about, is it not? It is trying to deal with conflicts in a democratic society and trying to resolve them with words, rather than having them resolved by various forms of warfare or brow-beating of one group or other into submission and acceptance. If we are trying to cope with conflict and trying to resolve it as far as possible by the use of words, I want to continue that process of exploring what kind of words might meet the situation.

The Minister did comment on one or two of the queries I had raised earlier. I thank him for those comments. They helped me to clarify one or two of my thoughts. I want to come back to the first of them, which was whether or not we needed to add some word after “unborn”, if we were going to have a declaration of pro-life nature, acknowledging the right to life of the unborn.

I assume that when we are talking about constitutions we are not writing language which is the language of doctors, of accountants or of lawyers, indeed, but that, by and large, we are trying to write language which as far as possible will be the common sense or general usage of language. I have always taken the view — I hope it is the correct one — that constitutions are supposed to be some statements of general principles or general attitudes which are to govern the conduct of that society's affairs. This is why most constitutions are written as far as possible in the ordinary language of the people and you leave to the detailed legislation at various times the task of giving precise meaning to these general principles, ideals or attitudes which people seek to hold in common. They do not always succeed, but there is the implied hope at least that all members of a particular society will seek to hold [1013] the general principles enshrined in their Constitution as being the ones to which they can lend their assent.

I have a common sense problem with the word unborn. In the ordinary everyday usage of the word unborn could refer to the generations yet unborn. That is the ordinary — I will not say literary — use of it, even spoken usage of it. Even for a Constitution, if you want to talk about a situation which relates to abortion, or questions surrounding the termination of pregnancies before full term you might want to be just a little more clear in your usage there. It can be argued, and I would not object to the argument, that in this context the term unborn is sufficiently defined or described by the words which come after it. That may well be the case, so that will then depend on which words you put after your opening phrase: “The State acknowledges the right to life of the unborn.” However, unless there are good reasons to the contrary, it would be simpler to put in some word like “child” and get rid of the ambiguity. Perhaps that is something which we can tease out again. I do not know.

I am simply noting the point that, as of now, I do not see that reasonable doubts about whether or not we want an additional word after “unborn” have been resolved. If we had no further examination of the matter, we could leave this House this evening and people outside it could still hold conflicting views as to whether or not the term had been defined with sufficient precision. I note that as my first point. If I were faced with the task this evening, I would try to cope with it by adding the word “child” after the word “unborn”. That is just a personal position at this stage and I am open to reasonable discussion and argument on the matter.

After that, we have the problem, of which we have been reminded again just recently, of the question of the equal right of the mother. Again, I wonder is the solution to that to be found by trying to find some other words which, again, in the common sense usage of language would convey the spirit of what we have in mind when we are putting forward an amendment. I do not pretend to have any [1014] perfect solution to that — I do not suppose anyone has the perfect solution — but I was wondering if one possibility would be to say something like “having due regard to the rights of the mother” rather than say “equal right”, using the plural word “rights” and adding a phrase something along the lines “and while not interfering with established medical practice.” Would that help to describe in common sense language what we have in mind?

In other words, we want to talk about some form of pro-life amendment. We want to have due regard to the rights of the mother as well as the right of the unborn child. As I understand it, we do not want to interfere with established medical practice and let us recognise that established medical practice may well change over the years, over the decades, but I have heard no-one suggest so far at any stage in the debate, either here or in the other House, or outside, that they want to try to govern medical practice by legislation. Would this common sense usage of language “while not interfering with established medical practice”, whatever that may be, meet the problem? Then we could continue with some phrase affirming that any legislative proposal which would facilitate abortion is in conflict with that right — that is the right to life of the unborn. This seems to be a way of approaching it with the use of everyday language which describes the objectives and purposes which people have in mind and, therefore, might be a way of trying to overcome some of these differences of view which I believe are held by people in all sincerity on the different sides of the House.

This brings me back to my starting point. If we are going to pass some form of words which will then go before the people, surely we have to try, no matter how many hours it will take, to find a word — a better word — that will command as wide a degree of support as possible. I do not think that we can expect perfection. Indeed, the Minister when replying in the other House made the point that language is not a precise instrument, that there is always some degree of ambiguity in its usage. I suppose we have [1015] to accept that. So what we are looking for is the reasonable use of words which most reasonable people would accept as a fair description of their intention. This is the way in which I would like to see the debate continuing.

I do not really see that we can get much further at this stage by trotting out names or quotations for or against our own favourite interpretations of words. The more we do that, the more we will demonstrate the very point that is at the heart of the difficulty — namely, that reasonable people can end up interpreting the same words in different ways. When that happens, we have to look around for other words on which they might then be able to agree. I would like to feel that we have not exhausted the possible uses of language which might yet enable us to come up with words that will command support on all sides of the House.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I want briefly to refer to a number of the points made since I last contributed on Committee Stage. Regarding the use of the word “unborn” and the difficulties to which it gives rise — difficulties which I freely acknowledge — an attempt was made for the first time by Senator Eoin Ryan to deal with that problem from the point of view of Fianna Fáil. He also sought to deal with the problem of the equal right of the mother. It is fair to say that he made a far better job of dealing with the question of the equal right of the mother than with the question of the unborn. The former is a far more serious problem, anyway. I have my own views on the equal right of the mother but on the question of the unborn he first trotted out that elsewhere expressions are used like the infirm and the aged in legislation and, indeed, in the Constitution itself. That is nit-picking and is not really understanding the fundamental reason why the Attorney General originally turned our attention towards the question of the use of the word “unborn”. If you use the word “infirm” and you are talking about human beings, there is no doubt about what you are referring to.

[1016]Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  If we are going to use the word nit-picking, I should nit-pick, as well. I presume that there is a good reason why nobody from the Minister's office is sitting in the Minister's chair.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  As I understand it — and I was in the House all the time since the Minister left to attend a division in the Dáil and I understand that he is coming back — each Member has been offered the option of ceasing to speak or of continuing to speak. Each Member exercised the option of continuing to speak. The Cathaoirleach did not ask me because I suppose he observed that I was in the House since and would know enough to exercise the option if I wanted to.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  It is a matter for individual Senators.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  To talk about the infirm or the aged is not the same thing as to talk about the unborn. There is no difficulty or problem when you are talking about the infirm or the aged in recognising and acknowledging that you are talking about human beings. The problem when you are talking about the unborn is of a fundamentally different character because the whole problem is that, even the addition of the word “child” as suggested by Senator O'Donoghue does not solve the problem. The problem — and here, as I mentioned this morning, I had some disagreements with the Attorney General — is not related to the fact that “unborn” is used without a noun. The problem is that it is used without a noun and any noun you put in there needs to be defined. If you put in “person” or “child” what I say is quite logical for both those insertions. If you put in “child” you must say what you mean by “child”.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  I am afraid the Senator is speaking more on the Schedule than on Senator Ross's amendment.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  How does the Chair mean?

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  The Senator is [1017] referring more to the Schedule. I was lenient with a few speakers, including the Senator, but he is keeping a good bit to the Schedule.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  Well, I will put it like this. I am merely doing the same as others did.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  Only you are much longer at it.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  If we called upon——

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  Most appropriate.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  Let me finish. If we called upon Senator Eoin Ryan to explain certain matters and if he did that — which he did and took his courage in his hand and tried to explain them — there is not much point at this stage, having allowed me to raise the point and having allowed him to answer it, in shutting me off in the middle of my rebuttal.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  The Senator was not in the middle of it, he was nearly finished.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I was a lot nearer the start than I was near the middle. I will put it to the Chair like that.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  I remind you that I do not want the whole matter repeated again on the Schedule when we come to it.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  Am I not right in saying that we can speak as frequently as we like as long as we are not repeating ourselves?

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  Yes, on the amendment.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I would like to get that correct because I do not know.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  You are quite correct in that.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I am quite happy to make this point on the Schedule.

[1018]An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  That satisfies the Chair.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I understood that we were discussing both things from a practical point of view. I am quite happy not to do that, but to discuss the actual text itself.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  As long as there is no great repetition subsequently.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I understood that we were discussing the whole thing, but whatever the decision of the Chair, I will, of course, abide by it. What am I to do?

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  You are nearly finished with the subject.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I am not finished with it. I will be another two or three minutes.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  If there is a general agreement that we do not have it repeated on the Schedule, is that fair enough?

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I am certainly not going to. It would be an exercise in futility to repeat it.

Dr. O'Donoghue: Information on Martin O'Donoghue  Zoom on Martin O'Donoghue  Can I offer some help? As Senator O'Leary has said, we have, in effect, run a lot of the discussion on the Schedule along with the discussion on the amendment, but would we not be precluded from speaking on the Schedule if there were additional points that we wished to make?

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  That is what is at issue. I am grateful to the Senator for that. I just want to make the point with regard to the question of the child. The whole question of what you mean by a child must be defined because, of course, it is not a child in the ordinary accepted sense of the word; it is a child before birth. Then we come back to the problem which I raised earlier, of fertilisation and implantation and that problem has not really been solved. Senator Ryan has not even made an attempt to solve that problem. I am not surprised at that but he has [1019] totally failed to understand the significance of that point, or if he does understand it, he has totally failed to answer it. His point of view could be correctly summarised by saying that it would be impossible to define it so that no doubt would be left and, of course, that is true. However, it is reasonable to assume that at least the broad principles should be laid down.

Interpretation will always be left to the court. I understand that and Senator Ryan is quite right on that point, but it should be possible for him and for those who advocate what he says broadly to define what is meant. In other words, what is his reaction to my point about fertilisation and implantation? Nowhere has this been dealt with and it is worth dealing with, not because we can tie the hands of the Supreme Court — we cannot — but at least let us get on record what we mean by it and then let the Supreme Court take that into account or not take it into account as the case may be when and if they come to consider the point. That is all. In both Houses, there is no grasping of this nettle and it is very important that this nettle be grasped, not in the sense of defeating the amendment or supporting the amendment, but putting on record what we mean by the amendment. I have put on record what I mean by the amendment. It is a reasonable request to ask Senator Ryan, as spokesman for a large party in this House, to put on record what they mean by the amendment, and what stage of the unborn child they want protected by this amendment. It is reasonable to ask of him at what stage protection should begin, even though the Supreme Court will interpret it, anyway, no matter what his party say. He is not facing the problem at all.

On the question of equal rights, he has made a fair point on that. He certainly has put forward a point of view which is capable of intellectual argument before the House but, on the other point, he has totally failed to deal with the fundamental problem with regard to this amendment because some of those who are opposed to the amendment really fear that it is the thin end of the wedge, in [1020] addition to being opposed to it for various reasons of their own.

Those of us in the Oireachtas should lay down guidelines as to how far we are willing to go and no further. It is a reasonable request, therefore, to the Fianna Fáil Party that they would lay down a marker for anybody who might be interested as to their interpretation of what their own wording means. I have said what I think they mean. I would be thrilled if they said that they agreed with me because then I could with more confidence look forward to a situation where, even if the amendment were carried by the people, at least it would be on terms that I would find broadly acceptable. But they have failed to do that and those who support the amendment, in general, have failed to do so also.

It is also reasonable that we should bring to the attention of the House the fact that the problems which arise with regard to the Fianna Fáil wording and the definition of the unborn do not necessarily arise with regard to the other wording. I think I was misquoted by Senator Honan when she spoke into the record here tonight and gave an interpretation of my views which I do not think were in accord with what I had said previously but I will check that and come back to it at a later stage.

Senator Ryan made a point which I should like to deal with. He said that the amendment would not change the law, the 1861 Act would remain unchanged. Of course that is right because that is statute law. What it will change is the criteria by which the 1861 Act will be judged.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  Will the Senator move the adjournment?

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  On a point of order, is Senator O'Leary going to be much longer? With the agreement of the House we might finish tonight if Senator O'Leary is going to finish very shortly.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I do not need much more time.

[1021]An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  We have a motion on the Adjournment in the name of Senator Ryan starting at 8 o'clock.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  I presume if we finish this debate we could go ahead and conclude it now with an extension of perhaps five minutes, with the agreement of the House. Would that be in order?

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  The Chair is not aware that the debate is finished.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I think what the Senator is saying is that the House should sit for another ten minutes.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  If there is no one else offering. It seems unnecessary to come back tomorrow.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  That is the intention if the debate is not concluded.

Mrs. Bulbulia: Information on Katherine Bulbulia  Zoom on Katherine Bulbulia  I have some questions to put though not at any length.

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  We suggest that we take the motion on the Adjournment now and continue the debate tomorrow.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  If the main Opposition are anxious to be here tomorrow we will facilitate them.

Tugadh tuairisc ar a ndearnadh; an Coiste do shuí arís.

Progress reported; Committee to sit again.


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