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

Thursday, 19 May 1983

Seanad Eireann Debate
Vol. 100 No. 10

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Atógadh an díospóireacht ar leasú Uimh 1:

Ar leathanach 5, tar éis line 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.”.

Debate resumed on 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 [1033] law on the ground that it prohibits abortion.”.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  Last night I was dealing with the third point in Senator Eoin Ryan's contribution. I dealt with the qualifications I felt were necessary and had not been answered by Senator Ryan on the use of the word ‘unborn’ on the one hand and the very much more valuable contribution he made on the question of the equal rights of the mother and the problems that may be posed by the use of that phrase. The last point I was making was that the point laboured by Senator Eoin Ryan on the existing legislation was that the constitutional amendment, if enacted by the people, would not change the law and that the law would remain as enunciated under the Offences Against the Person Act, 1861. I made the point that that is not the full story because, of course, the 1861 Act at present is interpreted with reference to the present Constitution and it is significant that this piece of legislation has never been tested concerning its validity or its constitutionality. It is because it is in that limbo situation that the change in the Constitution could make a very fundamental difference to the law as it is enacted. It is not sufficient to dismiss the question of the examination of what the law really is by saying that this constitutional amendment, if enacted by the people, will not change the law. It may and it may even change the statute law because the statute law will no longer be interpreted on the basis of the existing Constitution but in the light of the amendment which would then have been enacted by the people.

Therefore, the criticisms which were outlined in this House, and in the other House, and in general debate in the country, and specifically the criticism concerning the lack of public discussion and lack of indication from Fianna Fáil in regard to what they mean by the word ‘unborn’ is an extremely dangerous situation. That is the reason that it is important that the main Opposition party should put on record what they mean by the use of the [1034] word ‘unborn’ and at what stage do they think that an unborn child or foetus comes within the constitutional amendment they are proposing. It is a reasonable question and one which they have singularly failed to tackle. That is one of the most disturbing aspects of the situation. As I said previously, at least I put forward what I thought it should mean recognising that that, of course, is by no means definitive and is capable of being interpreted in a different way from the way I suggested it should be interpreted. That is the way I believe it should be interpreted. I again recommend to Fianna Fáil that they should put on record what they mean by it so that the record will show for future generations and lawyers what was in the minds of at least a significant portion of the Legislature when they used this term “unborn.”

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Like the previous speaker, I am flabbergasted at what Fianna Fáil are saying. They do themselves, in particular, no great honour by avoiding issues, particularly the issue I have raised here again and again — I apologise to the House for raising it again and again — but the people and I are entitled to an answer: how do Fianna Fáil propose to deal with the problem that the Director of Public Prosecutions has identified? He has said that this amendment will make it, in his interpretation, more difficult to initiate prosecutions if they were required under the 1861 Act. That is his opinion but I do not know any other basis on which the DPP can initiate a prosecution other than the fact that it is his opinion that a prosecution should be initiated. The courts decide whether people are guilty or not and that is the way it should be. The Director of Public Prosecutions decides whether prosecutions should be initiated. My understanding is that if he decides not to prosecute the procedures needed to get around that would be extremely complicated.

Fianna Fáil have an obligation to the people and, in particular, to the cause they so eloquently espouse, what they call the pro-life cause, the cause of protecting this country from abortion which they say is best done in the wording of [1035] this amendment, to explain to all the people who believe that that is what Fianna Fáil are doing, how they will get around the problem that has been identified by the Director of Public Prosecutions, that he will have considerably greater difficulty in initiating prosecutions if the Fianna Fáil wording is accepted by the people. They cannot go on forever saying it is just an opinion. He is not just John Citizen in the street; he is the Director of Public Prosecutions. What do they propose to do? Sack him and replace him by somebody who will accept their interpretation, thereby negating the whole idea of having a Director of Public Prosecutions? What do they propose to do, indict him, have him suspended or taken to court? He gave his opinion and Fianna Fáil have an obligation to this House, and the country, to respond to that. The response is not just to shrug shoulders and say — tough luck, that is just his opinion. His opinion is what counts ultimately in the whole initiation of prosecutions. His opinion is the one that we as a community have decided to rest upon in terms of the initiation of prosecutions in criminal cases. It is the one we have to accept and that is the one the country's verdict will be determined by. Will Fianna Fáil please tell the country how they propose to handle that objection? They cannot go on forever saying it is just his opinion. It may well be just his opinion but it is also the opinion that counts. I should now like to put my second question. Senator Eoin Ryan made some fairly platitudinous references to the aged and things like that. I have been reading the Constitution to check up on this. For instance, there is reference to the aged in the Irish language in the Constitution. They are referred to as, an tsean. There is no reference to sean daoine or anything like that. In the case of the unborn it is referred to as “an mbeo gan breith”. There is a difference between the English and the Irish in the case of this wording which is not extant in the other one. With regard to what the Minister for Justice said about what I saw to be pecularities between the English and the Irish version, of course he is right that they are [1036] taken directly from the Constitution. However can he tell me whether those English and Irish versions have ever been interpreted by the courts? There could well be a conflict on that Article between the English and the Irish versions. The possibility of conflict must have been envisaged otherwise we would not have this indication that where there is conflict the Irish version holds supremacy. There is no point in quoting the Constitution back to me. Just because there is one anomaly in the Constitution would not justify entering another anomaly. If those peculiar differences between the English and the Irish versions have not been interpreted by the Supreme Court do we really know that those words mean what it is alleged they mean? They are the two questions I address to Fianna Fáil. If some Fianna Fáil member will not tell me what they propose to do about the Director of Public Prosecutions I will have to hop up again and again because they are behaving disgracefully on that issue.

Mrs. Bulbulia: Information on Katherine Bulbulia  Zoom on Katherine Bulbulia  One has enormous sympathy for the Minister, whom I welcome to this House, for the situation in which he finds himself. He is, indeed, in an invidious position presiding over the attempts to pass an amendment to the Constitution the wording of which was not of his devising, nor was it the devising, one must make very clear, of the Fine Gael Party. In my Second Stage speech I deliberately refrained from making points of a party political nature. I felt very strongly that it was out of place in this debate because it is about something very fundamental and very crucial to Irish society. I also felt, given the civilised atmosphere in this House, that it was out of place with the very tenor of this House. Having listened to the debate on Committee Stage carefully, and having seen the serried ranks of the Opposition singing dumb on what is fundamentally an issue of the greatest significance and obviously, seeing them feeling quite happy at seeing something pass into the Constitution which is fraught with danger and ambiguity I find it very difficult to contain myself. The last time I sat on my rolling cadences and expressions [1037] of contempt but I am not able to do so this time. I want to put it on the record of the House that the amendment is being brought in courtesy of the very people who brought about the Talbot car deal, The Pat O'Connor case, Mr. Seán Doherty and his multifarious activities. Perhaps one is not allowed to put one's snout into that.

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  This debate has deteriorated rapidly since Senator Bulbulia spoke this morning.

Mrs. Bulbulia: Information on Katherine Bulbulia  Zoom on Katherine Bulbulia  Yes, it has deteriorated.

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  Her Second Stage speech was a caring one but suddenly she has deteriorated rapidly into the gutter.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  I will ask the Senator to withdraw it.

Mrs. Bulbulia: Information on Katherine Bulbulia  Zoom on Katherine Bulbulia  Yes, I will withdraw. I will say that it must be accepted that the implacable attitude of the Opposition who refused point blank to give an explanation, to qualify, to outline the implications of the wording they are attempting to bring before the Irish people in a referendum has brought me, a normally mild-mannered person, to a pitch that I must state that integrity in political life is not merely about integrity in sexual matters, it is about integrity right across the board. It is moral to care about what is right and proper in a referendum. It is moral to have integrity. It is moral to put country before party and that is what should be done in this case but is not being done in this House or, indeed, anywhere else. That is what I resent, and bitterly and deeply resent. I am looking for explanations from that side of the House. I am waiting for clarification. I am waiting for an in-depth detailed analysis of the wording and I am not getting it. This is what has brought me to this pitch. It is not my normal form. I am normally courteous and civilised and I make my points of an intellectual nature but I cannot do it in this case. The Opposition are absolutely frustrating the intellectual questioning of this side of the [1038] House. As Senator Brendan Ryan said he will wait until doomsday to get the answers.

I cannot believe it is possible for all Senators on that side of the House to be of one mind on this issue. It is just not possible for people to be of one mind on any issue. I see no subtleties, no variation, no explanation and no thought. The most that has come out of this debate is that it is so because I say it is, therefore it is. That is the most crazy type of logic. It is illogical. That is why on this side of the House we will insist on questioning, asking and trying to see if the Opposition will be honest and face up to the implications of this wording and what they mean for mothers, children and for this society. This debate has caused a great waste of parliamentary time in the opinion of many people but because the consequences are so far reaching and because it is possible it will bring about very dangerous situations and threaten the lives of mothers and children it is not a waste of parliamentary time although I accept we could be getting on with more practical legislation. It has caused divisions right down through the very fabric of society, in the legal profession, in the medical profession and in the Churches. Those divisions may not even be healed in this generation and I would not like to have that on my conscience and I do not see how the collective ranks, with their collective conscience, can have this on their conscience.

The wording before us sees the cultivation of vagueness as a virtue. I do not propose to delay the House unduly with lengthy discussions on the word “unborn” and its ramifications, though it did intrigue me to hear a suggestion made by Senator O'Donoghue yesterday that it would please him if it was qualified by the word “child”. It would be very nice if this could be done and it would add yet another innocent, sweet sounding word into this anodyne amendment. Unfortunately, it avoids the issues of fertilisation, implantation and viability which have been so carefully and painstakingly developed by this side of the House. It skirts the issue, evades the issue and is symptomatic of all the Opposition have [1039] offered us in this debate. This term “unborn” has no meaning in law or in medical science that I know of. It is not qualified. Therein lies its intrinsic danger. It does not even refer to the unborn human, a point which Senator O'Donoghue was attempting to make. It could be, if taken to its logical conclusion, that we may not even be allowed to eat eggs any more.

Leading pro-amendment obstetricians in various statements to the newspapers and at meetings have prejudged the legal interpretations of the amendment. The master of one maternity hospital in Dublin wrote to the papers stating that the amendment will not change current practice in his hospital, all of which is very soothing and very uplifting. Current practice presumably includes termination of pregnancy when ectopia or carcinoma of the uterus exist. This brings to mind a quotation from Alice Through the Looking Glass by Lewis Carroll which is as follows:

When I use a word, Humpty Dumpty said in a rather scornful tone, it means just what I choose it to mean, neither more nor less.

It is perhaps appropriate to quote an egg in this context but it might be wise to bear in mind what actually happened to Humpty Dumpty at the end of the day. Perhaps the pro-amendment people will be particularly gratified to hear the weighty opinion of an egg being accorded significance in this debate.

I regret that the Minister is not here although I welcome the Minister of State at the Department of Social Welfare to the House. There are a number of points on which I would like the Minister to comment. Does he consider that legislators in a democracy have a responsibility towards the public to ensure that in a referendum the issue should be presented to the public in a clear and unambiguous way? If, as I feel sure, he will respond affirmatively to this does he consider that this Fianna Fáil wording meets those requirements? If, as I expect he will, he answers in the negative, may I ask him if [1040] he would countenance the possibility of a citizen bringing an action against the Oireachtas for putting him, the citizen, in a position of voting on an issue in a referendum which he does not understand? This has never happened before; it has never been necessary. Previous referenda have been crystal clear. Granted the implications of joining the Common Market may not have been immediately apparent to the citizens who partook in that referendum but it was a clear-cut choice which was presented to them, “Do you or do you not wish this country to join the EEC?” No such clear-cut choice is being presented to the public in this amendment to the Constitution. If I were to pick any word which reigns in the minds of the public on this amendment it would be the word “confusion”. The legislators are doing themselves and the public a disservice by placing before them in a referendum wording which is manifestly ambiguous, which the legislators in this House fail to comprehend and which the public have not an earthly chance of comprehending. I cannot see who is going to make this wording clear to them. I know, and everybody in this House who is honest and who is facing up to the reality of the situation knows, that the public will be lead to believe that they are voting for or against abortion. They will happily go out in their thousands to do just that when that is not what this amendment is about.

I will now turn to the other conundrum inherent in the wording and that is, with due regard to the life of the mother. As matters stand the equal right does not lie with the foetus, in practice. In our hospitals every day our obstetricians make decisions involving the premature delivery of infants. This is done out of due regard for the health of the mother. There is no legal framework within which those decisions are made. Many obstetricians stated that they do not expect the amendment to interfere with current obstetric practice. Their decisions are made primarily in the best interests of the mother and, as far as practicable, in the best interests of the neonate. The result is frequenly that the tiny neonate comes out of this second best. This happens [1041] despite the very best efforts of the team involved, obstetricians, neonatologists and paediatricians. In the main these decisions are wise and considered and ones with which no sensible person could quibble. The amendment purports to give rights to the neonate but it cannot ensure that these rights will actually obtain so long as current medical practice in this field continues.

Would the Minister care to outline how these equal rights of mother and child would be implemented? He will, of course, realise that decisions of this nature made by obstetricians, without the framework of the law, have to be made expeditiously. There is very often an extremely dramatic situation. These decisions are made hastily and instinctively with the skill, training and expertise of the obstetrician and his caring brought to bear on what is very often a matter of split-second timing. He is the arbiter in this situation. Nobody has made him the arbiter and it is a decision which, we, the Irish people, are happy to see an obstetrician have because in him we recognise skill, training and expertise. Should this amendment become part of our Constitution who is going to arbitrate in these situations? Will there be annexed to every maternity unit here a representative of Government to act as arbitrator in such situations? This may sound very far-fetched but it is the logical interpretation of this wording, which is shrouded in mystery. We look to the Opposition to bring some clarity to bear, but so far in this debate they have failed lamentably and have come with their humpty dumpty obiter dictum: “It is because I say it is”. That is not good enough. It is not good enough for the legislators and the Irish public.

A very interesting situation will arise should the Supreme Court have to interpret this matter and it will have to interpret it as sure as night follows day, because it is crying out for interpretation so vague is it. If the Supreme Court decides to interpret that citizenship commences from the moment of fertilisation all kinds of very interesting possibilities and ramifications will follow. The fertilised [1042] ovum will also have to be accorded the rights all citizens have.

One sees the Minister of State at the Department of Health and at the Department of Social Welfare having enormous problems computing the children's allowance which will have to accrue to those fertilised ova. It is not far fetched.

It is logical, if one determines that citizenship will attach to fertilised ova, that all the rights of citizenship which we enjoy must attach themselves to the tiny embryo. We are talking about the right to children's allowances that I alluded to. We are also talking about death certification in the event of still-birth or abortion. We are talking of funeral grants for the burials of the aborted products of conception. Perhaps while I am on the subject the Minister could tell me whether there is a still-birth register in this country.

We are witnessing in this House the final stages of an ill-begotten, ill-conceived proposal. Would that it could have been still-born. The proposed wording represents a further assault on women by a predominantly male Legislature who are legislating for circumstances in which they will never, ever find themselves. Existing methods of contraception may be outlawed because it is inevitable that the hawkish elements in SPUC and PLAC will not stop at this but will proceed to take constitutional actions against existing methods. This has been the case with the organisation LIFE in England and unfortunately we are an imitative society. I am very confident that those people, with their taste of victory, will rampage on to attack more legislation which we have. I would say in passing that we do not have much in the way of contraceptive counselling in our maternity hospitals, certainly in two out of three, except, of course, in regard to the method approved of by one Church. Such moves by organisations which have pressed for this amendment will be resisted with far more vigour than is being presented in the attempts to pass this amendment.

Even at this eleventh hour I would appeal to and implore political leaders, Church leaders and leaders in the professions [1043] to come together recognising that we hold so much in common and that this worthless amendment jeopardises all that we hold in common.

We are shortly to witness something of an historic step forward, namely the establishment of the All-Ireland Forum. I listened very carefully to the Northern voices which spoke in this debate. Not one of them felt that this amendment had any merit or any applicability to an all-Ireland which we devoutly espouse. Because of that and because a gesture of goodwill towards the forum is called for and is warranted, I call for a stop to this dreadful amendment which has divided and upset the citizens of this State so much.

I would like to refer to comments of Senator Honan when she spoke, dissociating herself and her party from the scurrilous and vicious letters which were received, in the main in this House by women Senators. I would like to thank her for that. Never in my wildest dreams have I associated her or any members of her party with such vicious, lowdown, nasty emanations. It is interesting to note in passing that since the lady Senators in this House took their courage in their hands and stood up to this nastiness and viciousness, those people have become silent. It certainly points out that the way to deal with ugliness, viciousness and nastiness is not to cower before it, not to be timorous — to stand up and point at it, and that will make it go away. If anything good has come out of this amendment that has.

I have concluded all that I want to say. I will repeat that I see in the wording both in relation to “unborn” and “with due regard to the life of the mother” anomalies and mysteries which are still shrouded. I look to the Opposition to shed light on these difficulties. I challenge them, since they stand over this wording, that it is their right, duty and their moral obligation to spell out for us in detail the meaning of these words. Until they do so there will be a large measure of dissatisfaction with this amendment, and this will be translated in the votes against it [1044] outside this House if and when it sees the light of day.

Those of us who have failed to obtain satisfaction to our questioning happily and with confidence can go to the public and say, “This thing is a nonsense”. It had a failed Committee Stage in another House where the debate degenerated into an unseemly debacle, which was referred to by the Minister of State with responsibility for women's affairs when she spoke here at the last Seanad meeting. It has failed in its Committee Stage in this House because we did not get replies to the questions which we so urgently sought answers to. It is a mystery, and when in doubt the best thing to do is to vote against it.

Mr. Ferris: Information on Michael Ferris  Zoom on Michael Ferris  Following Senator Bulbulia's line of argument it is appropriate to place on record that this House is in a total mess about the type of wording that is before us, which we are trying to amend in some way or to which we are trying to get answers as legislators with a responsibility for the actual wording that we finally will put before the people. The almost unconstitutional question we are asking the people to vote on will be to give a decision on a ballot paper which itself does not even include the actual proposed wording in this Bill but a narrower question: “Do you or do you not agree with this amendment”? It is the wording contained in the Referendum Bill itself that will be on the polling card. I will be putting amendments down to that Bill requesting that the public be allowed the opportunity, before a referendum, to decide themselves, because we have not decided for them, if the words are the correct words. Because their choice is so limited, I feel there is an obligation on us to ask the public if they themselves are satisfied, first with the words, and second, with the need at all for this referendum because of the continuing debate that has gone on here without any satisfaction to those of us who are genuinely concerned about the possibility of abortion being made legal in this country at any stage, and the responsibility we feel we have towards the protection of the unborn. There is [1045] absolutely no doubt in my mind that any stand I personally, or members of my party, have taken on this issue has been vindicated in all the debates that have gone on in this and the other House.

I am quite satisfied that the points we have raised, but which are still unanswered, are relevant to this amendment, to the words in the Bill. I suggested yesterday that we might slow down now and stop to look at what we are doing finally, in the eleventh hour of this debate on this constitutional amendment. I think there is an obligation on all of us, whether we are leaders of our groups in this House or leaders of the political parties in the country as a whole, at this eleventh hour to stop to look finally before we put this matter on a ballot paper and polling card for the people, who will have no choice. They must vote or abstain. They are unsure, and people who are totally opposed to abortion could possibly abstain on this referendum because of the ambiguity of the wording.

Because of that there is a definite responsibility on us now. I would plead with the people on the other side of the House, particularly Fianna Fáil Senators who are all committed, in a way, to the purpose we on this side have put forward. I think if there is that goodwill between us we can definitely call for a cooling off period during which we could sit down to review the debate we had and all the points made. When that review has taken place, perhaps, as Senator Martin O'Donoghue has said, there are other words that we could all agree with that would have the same purpose and still not be ambiguous or unclear or be reinterpreted by a court in a way which would be contrary to all the philosophies that we stand for.

That is our obligation. I intervene a second time on Committee Stage to say this is how I feel. We should proceed from there. A decision by a vote of this or the other House or a majority vote of both Houses will not answer for the people the questions that they are now asking, which we have not answered and which we have a responsibility to answer, that is, if we have any function whatever in this. We should not just sweep it under [1046] the carpet, wash our hands of it like Pontius Pilate, leave it to the people to decide, when we have not guided them in any way. We have only set off further doubts in their mind. These doubts have been justified by the experts whether it is medical, legal, religious, political or otherwise. The divisions are there and it is time for us to patch up the divisions.

Mr. Fitzsimons: Information on Jack Fitzsimons  Zoom on Jack Fitzsimons  I want to make a brief point about the word “unborn”. Before I do so I would like to say that I am rather disappointed with Senator Bulbulia's charge regarding integrity. Throughout my career I have disagreed with many people. In this instance I find it difficult to accept that all the Members on the other side find it difficult to understand the words. I have never questioned anybody's integrity.

I tried to make the point yesterday that most people would be in agreement that this is an adjective qualifying a noun. The question is what is the noun? I think it is right to conclude that this noun has been left out for some sound reason. It is also necessary to point out that in the Constitution we are dealing with people, human beings, not animals. It seems to me clear that we are talking, as I said yesterday evening, about a human being during the gestation period of 266 days. There is no difficulty in deciding when that period ends. It ends at birth. The difficulty seems to be about the commencement.

From the experts whom I quoted previously, it is clear that life begins at the beginning. This is what they say. We can take many meanings out of words. The word “conception” itself has different meanings. But if “beginning” means the start, in my view it is at the time of conception when the male sperm impregnates the female ovum. It is clear in my mind that this is the time when life is switched on. This is the question that has been asked all along — in my view, as an ordinary layman, I believe that life is switched on at that time.

It seems to me also that the reservations which Members have on the other side with regard to this is concerning contraception, more particularly with the methods of contraception which [1047] could be regarded as abortifacient. I pointed out before that the experts have satisfied me that there would be no problem about retaining the present methods. I am quite satisfied that the status quo will be continued.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  Which present method would there be no problem with?

Mr. Fitzsimons: Information on Jack Fitzsimons  Zoom on Jack Fitzsimons  I am satisfied that various methods of contraception are availed of. I am not a doctor, I have no medical background, but whether it is the intra-uterine device, or pills, or medicine, I understand that some of these methods may be regarded as abortifacient. In the other House Deputy O'Hanlon explained that he was satisfied as a doctor that there would be no problem with regard to the continuation of the present methods. He said that in any event it would be impossible to establish that a pregnancy had taken place. From my part I am quite satisfied, with all my colleagues, despite what Senator Bulbulia has said, that the status quo will continue. I also believe that this could not be incorporated in the Constitution, simply saying that the status quo will continue, because other developments may take place. I am satisfied in this respect that the status quo will continue.

I have said I am very concerned in any instance of distress. I would like to make that clear. Senator O'Leary and other Members time and again have asked the question what do we mean by the word “unborn”. I have tried to explain what I understand it to mean — that life begins at the beginning, and though it might suit some people to believe that life begins at implantation, if we are to take a logical line it must go back to when the male sperm impregnates the female ovum. It has been established to my satisfaction that the present methods of contraception will not be interfered with and that the status quo in relation to contraceptives will be continued.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I have no intention of delaying the House at all this morning except to clarify one or two points. They require clarification after the second [1048] speech of Senator Eoin Ryan yesterday. In it, he made an attempt, for which I am grateful, to come to terms with questions that had been asked from this side of the House in matters of definition. He began with a question he was asked concerning the meaning of the term “the unborn”, but unfortunately Senator Ryan decided that he would refer to some of the concern that I had, referring deliberately to my own speech as pedantic.

For the sake of the record of the House, I would remind the Members that I do not believe for a second that the speech the Senator had just heard was pedantic. He was trying to offer a definition that has meaning to him, and I respect that, but how can you say that my question about the rights of the unborn was pedantic when I succeeded it in my presentation yesterday by four explicit questions all dealing with situations in which doctors might find themselves. This, to me, is not pedantic at all. It deals with real situations in which practitioners and mother and the foetus will be affected by the way in which this term travels along through the legal process. They are real questions which have been posed by people who are in this situation: they are questions that have been asked by mothers, they are questions that have been asked by medical practitioners; and to suggest that they are simply the ramblings of someone who wants a pedantic exegesis of the meaning of the word “unborn” is extraordinarily unfair.

The second point I want to make is that I did not introduce into Seanad Éireann the term “unborn”. I am one of the people who said right from the very beginning that I found no necessity, no meaning and a great deal of danger, a remarkable insensitivity and an enormous hypocrisy in having this exercise undertaken at all. I am not in the business of exchanging my certainties for somebody else's certainties, saying, “I can with certainty assert that”. I did not take that position quite deliberately because I believed from the very start that there are matters about which certainty is not possible.

Senator Eoin Ryan's speech was an extraordinary one, in a way. It was one [1049] of those speeches that would almost make one think it was a soothing speech. He used the phrase in it that he was offering a legal opinion which he suggested may be wrong, which has that attractive Irish humility which we now and again are visited with. But he went on to suggest from this legal opinion, which may be wrong but which is set to assure me, in my questions, which are in the end only pedantic in his view, that no change will be made in the law.

That is the strongest statement made since this inter-exercise began. I know nobody else who, with such lack of reservation, has made the statement, “No change will be made in the law”. He followed it by repeating late in his speech that there will be no change, and then he spoke about the position of the doctors in the situations to which many of us had made reference, and he said that if we were to believe that anything else other than common sense would prevail we were people, to use his own words, who would believe anything.

The fact is that medical opinion is divided. It is divided for anyone who wants to read the newspaper. It is divided if anybody wants to read the letters and submissions that have been made to us in this House and in the other House. In an interesting way, which we might reflect on, some people I know who are very reserved people in writing to the papers and very slow people to come forward to offer their opinions on controversial matters, have taken the extraordinary step of joining together to write letters under their joint signatures to the newspapers saying that matters which are for them matters of decision in their professional practice are being put in danger. Therefore there is no point in suggesting that there is one common sense within the medical profession in these matters. There is not. It has had the effect in a curious way of dividing something that was not as divided before or in which divisions were hidden.

One other question I also put was that on a Stage like this I was certainly unhappy about the suggestion that we would be unsure of something, that we would let off something to the people for [1050] their opinion, and that we would decide that we had done a good day's work by using language that had been suggested by many people as imprecise and that posed questions which had not been answered. This was airily brushed off by saying: “Do you want a medical dissertation in the Bill?” We did not want a medical dissertation in the Bill but some of us stand here as people who did not use this language in the first place.

I have not repeated one syllable of what I said at Second Stage. I deliberately waited until this Stage to put four situations in medical practice which have not been replied to yet and that will affect how I will vote. It would have been interesting if someone had said: “How did this word ‘unborn’ get used at all; who used it first, from which literature; where is it used elsewhere; are there societies that use it?” I know that “na mbeo gan breith” is our own contribution to cultural history, but why did people who wanted the inter-exercise not say: “Some people got literature from a group in the United States where they had been using this term for some time. Many people were unhappy because it could mean anything but we decided it was a good way to organise a campaign”? If this had happened we would have known the origin of the word and one would not have needed a medical dissertation for that. The moral majority in the United States needed no medical dissertations to justify their language as far as they were concerned. As I said yesterday it simply had a good strident quality. I will leave that because I might be transgressing back to a general point about the origins of this campaign and its structure. What does concern us now is not only that word, but every other word, in this paragraph and the way in which these words are connected, the way in which sometimes these words seem to acknowledge existing rights, are unclear as to the status of a new right they might be suggesting, and are utterly imprecise about how the rights that might exist in relation to the mother are left intact or changed by this new assertion of the new right.

I repeat the questions I asked and I want to defend myself. As far as I am [1051] concerned these questions are not the questions of a pedant, I will remind Senator Ryan that it is now in the record of the House that I asked questions about the position in which a doctor may find herself or himself in relation to an ectopic pregnancy. My second question dealt with cases of cancer; my third dealt with the use of particular drugs and my fourth dealt with the clarification of particular forms of contraception. None of these questions has been answered. I want to raise another question about which some Senators may not agree. What happens when the right to life of the woman is threatened? What about the future health of the mother? Can anybody categorically state that there will be no question of any change in relation to practices as regards the future health of the mother who is experiencing difficulties? We are speaking of a woman who will move out of these situations which we might suggest in the abstract, and who will live a much impaired life for the rest of her life. That is why I used the phrase I used on Second Stage. If we leave these questions that affect women like that, perhaps there are only a few people involved, or dozens or hundreds, then the measure is unequivocally, in my view, anti-woman. I am asking these questions again on Committee Stage.

The last point I want to mention is this, and it comes back to Senator Ryan's suggestion in his second speech, which was interesting, in which we were told to have commonsense, to throw away our fears and be assured that nothing whatsoever will change. This was the extraordinary suggestion that was made, without, of course, having been told exactly how, that nothing would change. I would like to make sense of this. We are going to have another extension of the nod and a wink view of Irish life. There is the possibility that things might change at any time, but we will be asked to believe that nothing will really change because we will not draw any attention to it. I ask myself another question. Take the very eminent medical practitioner who wrote to the paper and said he wanted to assure people that nothing would change with [1052] regard to current practice in his institution. What status does that have? Is he saying — and I would like to know the answer — that nothing will change in current practice in his hospital because there is no implication for any change in anything that may happen as a result of the referendum? That is one interpretation. Or is he saying something else, that nothing will change in his institution whether there is any implication or possibility for a change in this referendum? Is he inviting people to defiance? Or, is he saying that nothing will change in his institution in relation to current practice because he has decided it? Are we invited to some kind of authoritarian definition that the person who can head an institution will be the person who will set down the code of actual behaviour?

I believe that these uncertainties are not answers to questions that we put on behalf of the people who will be affected by the consequences of this amendment being passed with these words in it. It is not a matter of simply nit-picking about the words; I suggest to those who are attracted by another argument, that it is not a matter of saying that the people will understand what the words are about. In matters like this, where we have already succeeded in dividing the people who are working in the hospitals — as well as we have divided the people in the churches and the community generally — that is just not good enough. The reason this is being discussed in depth on Committee Stage is that the Second Stage enabled us to have an argument as to why this amendment was necessary. The Committtee Stage invites us explicitly to look at these words together and in combination and to look at attempts to improve them — Senator Ross's amendment represents one such attempt. It would be an interesting exercise to look at the seven other occasions when we amended the Irish Constitution, and to look at the words we used on those occasions, to look at the debates that took place about the form of the words and what we were after. There was no such ambiguity, uncertainty and, of course, at the end of the day there was no such opportunism or, with respect, such a considerable [1053] degree of hypocrisy serving as a large backdrop to the mumbo-jumbo that these words are.

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

Progress reported; Committee to sit again.


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