An Bille um an Ochtú Leasú ar an mBunreacht, 1982: An Tuarascáil. Eighth Amendment of the Constitution Bill, 1982: Report Stage.
Wednesday, 25 May 1983
Seanad Eireann Debate
With regard to both these amendments, as I said last week on Committee Stage and as Senators well know. I am totally opposed to the amendment of the Constitution in any sense in this way. Therefore,  it might be expected that I would not put down any amendments. However, having thought about it very carefully and having listened to the words of my colleague, Senator O'Donoghue, last week and to various statements that have been made by churchmen and others about the wording suggested, I feel that it falls as a responsibility on me as a citizen and as a legislator in this House to try at least, by amending the wording, to minimise what I see as being the damage and harm that may be done by the passing of this wording of the amendment. Accordingly, while I am deeply opposed in general to the passing of the whole Report Stage of this Bill and will, indeed, oppose it, I have put down these amendments partly because at least two of the issues that have arisen in the previous discussions both on Second Stage and Committee Stage have been these problems of definition. We have had the difficulty over the definition of the word “unborn” and the difficulty of definition over the words “the equal rights of the mother”.
The first amendment which I have put down — and for which I am extremely grateful to the staff of this House for so rapidly providing an excellent Irish translation — was to insert after the word “unborn”, “which shall not include the fertilised ovum prior to the time at which such fertilised ovum becomes implanted in the wall of the uterus”. This may seem a somewhat technical amendment but Senators who have listened to this debate and who have taken part in it will be perfectly clear in their minds as to the reason why I have included this amendment.
When this campaign was started and through the various public statements and press advertisements that have been put forward by the pro-amendment campaign, it has been suggested by them that they are not trying to change the present position at any time. They suggest they are simply trying to safeguard the law as it is, that they are trying to safeguard the position that the Supreme Court might bring in abortion through the back door and that they might overrule the Offences Against the Person Act. They  deny, generally speaking, that what they are trying to do is to take action to prevent certain forms of contraception. However, they tend to say that as far as they are concerned human life begins at the time of the fertilisation of the ovum. This has been stated in this House to be a scientific fact. It is undoubtedly a scientific fact that some sort of life — if it is only a bi-cellular life — starts at the fertilisation of the ovum but it is a theological and not a medical or scientific contention that that is human life as such. The fertilised ovum if it does not implant will not survive. It is not a human being on its own. It is not even a developing human being until the time of implantation. On Committee Stage I mentioned various forms of contraception such as the IUD, the low dose pill and the morning-after pill in cases of rape. I also explained that there were difficulties for women of middle life who were not suitable subjects for other forms of contraception. These particular types of contraception can certainly not be challenged if one accepts that the unborn only starts at the time of implantation. It is very interesting that in the past couple of weeks we have had a statement by the English legal authorities that the morning-after pill is not an abortifacient precisely on these grounds, that it acts between the time of fertilisation and the time of implantation, that it cannot be considered to be an abortifacient and is, therefore, legal.
It seems to me that if the people who are backing this constitutional amendment are sincere in what they are saying, that they are not trying to change the law as it stands, trying to change present practice, trying to make things more difficult for everyone working in the field of family planning, that what they are trying to prevent is the introduction of the kind of law on abortion that they speak of fearing, that they see in America, England and so on. If this is the kind of law they are really trying to prevent my amendment should not bother them in the least. On the other hand, if what they are really trying to do, and this is what I feel they are probably trying to do, is to bring in, hopefully, a very restrictive definition of the word “unborn” which  would operate to prevent any of these particular forms of contraception, then obviously they will oppose my amendment and then we will be quite clear where we stand.
As far as the definition is concerned, from the theological point of view it is extremely clear that it is specifically a doctrine of the Roman Catholic Church that life begins at the stage of fertilisation. Therefore if we refuse to accept this amendment we are saying that it is the Roman Catholic doctrine of life we are accepting and nobody else's doctrine. We are not looking at it from a legal or medical point of view but simply from a theological point of view. This is something which I would like to make clear, particularly as we are entering on the doorstep of what is described as the forum for a new Ireland. Presumably we are about to come together and try to see in what way we can approach the majority community in the North and suggest to them that we are offering them a new Ireland which they should join without being shot into it by the gun or without being pressured into it by violence. We should make it quite clear to them what we are doing. Are we bringing in legislation which is definitely based on the doctrine of one Church or are we prepared to amend it in such a way that it is clear that at any rate the medical and legal opinions of many other authorities are being taken into account? From a medical point of view many of the leading doctors who have been involved in this controversy have said quite firmly that as far as they are concerned there is no way in which they would accept that it is a human life until the stage of implantation.
Mrs. Robinson: Like the proposer of this amendment, Senator McGuinness, I spoke at some length on Second Stage in opposition to a Bill to amend the Constitution on this particular issue, but like  her I feel that every opportunity must be taken in this House to try to convey to the Members of the House and to the public at large the total ambiguity, difficulty and worry about the wording that passed its Second Reading in this House, passed Committee Stage and may shortly be submitted in a referendum to the people. The time that has been taken by this House to discuss the terms of this Bill has given us all an opportunity to reflect on the measure. As far as I am concerned that reflection has only emphasised what an appalling proposal this is, what a terribly shameful Bill is before this House today. It is interesting to speculate what the role of the Minister of State responsible for women's affairs, who is here for the debate, is in relation to listening to the Report Stage. Will the Minister answer some of the questions that I and some of the other Senators will put?
Mrs. Robinson: I feel I must be entitled to ask whether the Minister is going to do what Ministers normally do and what the other Minister of State did on the Companies Bill. He was prepared and briefed to explain what the amendments meant and he answered questions about when the Bill would come into effect. That is his role.
In relation to this Bill and the amendment proposed by Senator McGuinness, it is difficult to understand what the role of the Minister of State will be. Will she address herself to the questions that Senator McGuinness has already put and that I and other Members of the House will be putting? This is a very serious matter. If she will not try to answer these questions then I wonder what she is doing here. Why bother to sit in on the debate? Why put a face on it? I say that without implying any criticism of the Minister. She came in here and is doing what she was asked to do, so I am not blaming her personally.
Mrs. Robinson: It is certainly a matter for the Minister but it is also a matter for this House. Will we have a proper Report Stage in which Members of this House will ask difficult and searching questions about the text and the Minister steering the Bill through the House will tell us what she thinks the answers are? I will be putting a number of very difficult questions. I ask at this stage whether I am going to get answers?
Mrs. Robinson: It seems to be the only course open to me but, to a considerable extent, it changes the nature of the Report Stage on this Bill. It is utterly different from any other Bill. In my 13 years experience as a Senator this is the first time that I have been in a position where I have sought, as an elected representative, to find out what words mean. I have sought to find out what is intended by the words chosen in this Bill and what the implications will be. It appears as though I will not get a normal Report Stage response from whichever Minister may be here when it comes to responding to the questions.
They certainly were not answered on Committee Stage, although a number of very searching questions were put by Senators. For those who are following this debate in the press and who are not aware of the normal procedures in the Seanad, it is crucial that they understand that the questions we are asking are not being answered, that the clarification that we are seeking is not being given, that the Minister of State sitting here does not believe in this Bill. She said so on Second Stage. She is going to advise that it be voted against.
This is the most appalling travesty of parliamentary procedures that I have had the experience of witnessing. It ought to bring shame upon every Member of this House to witness what is going on. A majority of this House do not believe in the Bill; a majority of this House do not  support the text of the Bill and we will have what we call a Report Stage to clarify and, possibly by process of amendment, to improve the Bill but we will not get any official answers or any official response on the meaning of the text of the Bill.
It is difficult to envisage this House dropping to a lower ebb than to be faced with a proposal to amend the Constitution and not have the normal procedure for clarifying what that proposal means, not have at our disposal the opportunity to understand and to have explained quite clearly to Members before we vote on a proposal for a fundamental change in our Constitution before that goes to the people who in their turn are expected to vote on a text which will not have been explained or clarified and for which there is no authoritative voice, where the Government of the day do not support the Bill that they are in some passive way allowing to go through this House.
I am in a sense reinforced in my opposition by the fact that I was unable to be here for Committee Stage last week because I had accepted — a considerable time ago — two public speaking engagements in the United States. One was a symposium in Boston, in the John F. Kennedy Library, organised by the World Council, located in Boston, and the Northern Ireland Group who are very sympathetic to Ireland generally and who are very interested to know of developments in Ireland. Although the context was broader than this amendment, most of the questions from the floor afterwards centred on this amendment. There was shock, horror, disbelief and utter dismay expressed by the Friends of Ireland who had gathered together at that meeting in Boston.
The second meeting that I attended was in Colombus, Ohio. It was the annual meeting of the American Committee for Irish Studies. Perhaps, knowing the Acting Chairman's interest in the Gaelic language he may know some of the people involved in various Irish studies, the Gaelic language, literature, history, political science. It was not a political gathering as such but a gathering of experts and academies whose primary  interest and research area are aspects of our life and culture. There, too, I found unanimous horror, shock, dismay, disbelief that in 1983 Ireland could be taking this appalling step back into an era when we did not perceive that laws and institutions were sectarian, when this was not something which had been brought to the surface and when there had been an opportunity to understand the type of society which we should be moving towards and building.
I feel reinforced on Report Stage in seeking, even at this late stage, to invite, in particular the largest group of Senators in this House, the Fine Gael group, to reflect on what they are doing. They are standing aside and allowing, in this proposal to amend the Constitution to go through this House, a very serious distortion of the parliamentary process and of the balance between the two Houses by their stance in abstaining on this Bill. One cannot abstain on the meaning of this Bill. One has to have some view. By abstaining one is subscribing to the perception of the Bill which has been canvassed by those who sought a constitutional amendment. Abstaining on any vote on Report Stage of this Bill, or abstaining from looking for clarification of its meaning is an acceptance that it meets the requirements of the pro-life lobby. It is an acceptance that the text is as sectarian as its critics looking at it feel it is. Those who abstain are necessarily and inevitably binding themselves, as Maurice O'Connell, a former Member of this House warned the Fine Gael Senators, to accepting a sectarian text and one which is a denial of all of the thinking and philosophy behind the constitutional crusade launched by the Taoiseach.
As we look now at the amendment proposed by Senator McGuinness it will be done in a kind of official vacuum. I will join with her in asking very detailed specific questions about the true scope and intent of the wording of the amendment and, because I require clarification on it, I am prepared to support the amendment which she has put forward because on Report Stage it has the great merit of being something that can be  understood, something that has a clear meaning and is, therefore, a substantial improvement on the dangerous and worrying ambiguity of the wording as it stands.
As Senator McGuinness said in moving the amendment, it is a relatively technical inclusion, as this Bill is a very technical and complex subject, for a constitutional amendment. The text of the wording, if this amendment were accepted, would read as follows:
The State acknowledges the right to life of the unborn which shall not include the fertilised ovum prior to the time at which such fertilised ovum becomes implanted in the wall of the uterus 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.
My view — I will have an opportunity to explain this more fully when the other amendment is moved — is that both amendments before us today should be carried. They both substantially improve the text of the proposal to amend the Constitution because there should be more precision about where it is intended as a matter of law, because there is no mention of it, there is no legal concept of the unborn and there is no medical concept of the unborn. It is not as though we are talking about something that has a clear definition and scope as it is. There is no medical definition and there is no legal definition. There is only our legislative definition if we put one in. As the text stands there is no legislative definition.
The Lower House did not bring itself to define this particular and, of course, crucial aspect of the proposal that they want to put before the people. This House could play a substantial role in this sorry, sad and muddled debate by bringing some clarity and some precision into it. The first precision we should bring in is the legislative determination for the purposes of this proposal of when in effect it is proposed that life, for the purposes of this constitutional amendment, begins.
 That is what Senator McGuinness is proposing to do in her amendment. She is proposing to say that the concept of the unborn, the right to life of the unborn, will commence not from the moment of conception but from the time of implantation. This is not an entirely novel proposal. There are a number of other countries, Germany for example, where the provision has been accepted that a distinction should be drawn between the fertilisation of the ovum and the implantation. The focus has been on implantation as being the more appropriate time to focus on in relation to any legislation or any change to be made in this area. If we pass this amendment then it would also be appropriate to consider and support the second amendment because it would, as the Commission on Human Rights and other agencies have done, place the relationship between the woman and the implanted ovum in the ordinary human context. It would not seek to equate those two rights but would of necessity give priority to the right to life of the adult mature woman.
This proposal has the merit of being precise in the moment when it is intended the constitutional amendment would extend to what has been termed the unborn. Although already there has been some medical discussion on the record of the House, it is on Report Stage, when we get down to the very precise wording, that it is necessary to spend a little while clarifying on the record of this House the importance of the difference in the concept of life beginning at fertilisation, for the purposes of this legislation, or life beginning at implantation.
It is also important that we perceive our role. Our role is a relatively modest one. We are only legislators, we are not gods, so we are not determining for all time, every context and in every aspect of philosophical thought, theology or religion when life itself begins. That is not the weighty matter before us. We are merely being asked to clarify and to make more precise as legislators, because it will have a practical and real significance for the lives of women in particular in this country and for the practice of medicine in this country. We are being asked to be  precise about when, for the purposes of this proposal to amend the Constitution, it is envisaged that a constitutional right to life will begin.
There has been a very substantial correspondence in the various newspapers in this country worrying about the deeper issue. That deeper issue, although it is relevant to attitudes towards the precise problem we have before us, is not the precise problem. All we really have to worry about is when as far as we as legislators are concerned, for very important medical, social and legal reasons the constitutional right to life will begin. Will it be at the moment of conception or will it be, as proposed here in the amendment, not before implantation of the ovum? For that reason it is necessary to take some time to look at the process which we must have under a microscope in order to understand the wording and the thrust of this amendment and, indeed, understand the ambiguity of the existing text if it is not amended.
I propose, therefore, to look briefly at the very clear and well written chapter on the beginnings of life in a book written, when this proposal to amend the Constitution was first mooted, by Dr. Andrew Rynne, who is known to most Members of the House as somebody who is identified as being anti-amendment. His book on Abortion, The Irish Question has been widely reviewed and is considered to be remarkably impartial and fair on the issues that have been raised and the implications of the amendment. Certainly, in the part I am reading from, the chapter on The Beginnings of Life, it is a factual medical description, and therefore, is not one which should be discarded by those who feel that it may be in some way propaganda against the amendment, or whatever. What we are discussing this afternoon is a matter of an understanding of the human cycle, an understanding of the precise way in which, from a medical point of view, life begins and the appropriate points when the relevance, if this has to be, of conferring a constitutional right may stem or may be dated.
Conception or fertilisation can occur  within twenty minutes of having had intercourse. That would be about the minimum length of time required for the sperm to travel up through the body of the womb and out into the fallopian tubes where conception takes place. But, from the very second that semen is deposited in the top of the vagina spermatozoa begin to travel through the neck of the uterus and start their assent to the tubes. Therefore douching after intercourse, for example, is not a particularly useful method of contraception. In fact, it is normally quite useless. That would be about the minimum length of time required for conception to take place. At the other end of the time scale, fertilisation could be delayed for up to twelve or fourteen hours after intercourse.
This is because the sperm has a viable life of about twleve to fourteen hours and can stay around in the body of the uterus or in the tubes awaiting ovulation to take place. Sperm can live for more than fourteen hours, of course, but their ability to fertilise is eroded with the passage of time.
I do not know if the Minister of State will give us her own individual view or decide not to give a view since the stance appears to be simply to leave the matter to the people now, unclarified and unspecific but it is important for us to seek to ascertain if in this constitutional right — which we are proposing and which we are equating to the right of the mother to the right of an adult woman — that sperm which has a potential life of 14 hours, and still has the capacity to fertilise, and possibly for a little longer, but with that capacity for fertilisation eroded, to be equated under our law and under our Constitution with mature women?
Once conception takes place in the  outer end of the fallopian tube the fertilised egg then starts its long journey back down the tube towards the body of the womb. This journey takes about three days, or seventy-two hours to complete and while the egg now fertilised travels along it divides into two, then four, eight and sixteen cells. These are the first strides towards the creation of a new individual. For now the programme is set, sex, hair, colouring, personality and so on are all determined at the moment of conception — a new human life has begun.
Now we have the fertilised ovum — prior to that we had the sperm — and that journey of the fertilised ovum to the womb, we are told, can take from three days. The text of the amendment, as proposed, does not make it clear if this fertilised ovum, is being given, by us as legislators and by the people who will vote without the same opportunities as we have to try to get some clarification and some understanding of what we are doing, the same constitutional right to life, an equal right to life as the adult woman.
When the fertilised ovum reaches the womb it is called a blastocyst and is quickly becomes embedded in the juicy lining of the womb. At least that is what usually happens. Occasionally a fertilised ovum does not become implanted and is passed out in menstural flow.
If the right to life dates from the very beginning of this process, from the time when the sperm is entering, before conception or at the point of conception, but within a period which can be up to three days before implanation, if that is when we confer the constitutional right, what happens to the natural wastage? I will come to some figures on that natural wastage. What is the State supposed to do about that? We are creating a constitutional right to life where we know there is a natural wastage of a certain percentage unknown to the woman concerned and of no concern of any particular kind to anyone, just a natural wastage in the  fertility cycle. What is the significance then of conferring a constitutional right to life? If that is not what is intended then why does somebody not say so? Why do we not have clarity and specific and technical information on this? As I said on Second Stage, this is not a simple issue. It is not something that can be either discussed or dealt with briefly and without any reference to medical or technical information about the menstural cycle, fertility and so on.
Remember now we are talking about a microscopic cluster of cells — a very specialised cluster of cells, I grant you, since they hold the genetic software for a brand new human individual. But at this stage we are very much under the microscope; there is an amount of natural wastage of these blastocysts and they have been recovered in menstrual flow. Taking it however that implantation does occur then, within two or three days, the blastocyst breaks up into placenta an embryonic sac containing the developing embryo already immersed in its protective amniotic fluid. Both mother and embryo have their own separate blood supply and circulation and the two never mix. Oxygen and nutrients are transferred across the placenta barrier from the mother's circulation to the embryo's circulation. After about ten days the embryo has grown to about the size of a pinhead and should be barely visible to the naked eye at this stage. It is referred to as an “embryo” up to eight weeks of gestation, calculated from the first day of the last menstrual period. After eight weeks the developing baby is referred to as a foetus.
In order that we understand the scope and intent of this amendment it is necessary for us to bear in mind in very considerable precision precisely how the cycle develops and the kind of timelags which can take place and, in particular, the degree of natural wastage which can  occur. If I might refer to another helpful briefing on that problem of natural wastage, a problem from the point of view of defining constitutional rights, I would refer to the briefing document on some medical implications of the proposed constitutional amendment. It is dated 9 December 1982 and it is under the auspices of the anti-amendment campaign. I believe copies were circulated to all Deputies and Senators. The part which I am referring to is factual. These are factual medical data. Therefore, even if a number of Senators or Deputies are not supportive of the anti-amendment campaign, or are concerned about some aspects of that campaign it is helpful to have the medical precision provided in a briefing such as this because it certainly has not been provided in any of the political speeches which have accompanied support for the proposed amendment.
The debates on the amendment in the Dáil were very interesting because almost without exception they are totally nontechnical and without reference to the reality of what this proposed amendment is about. They refer to philosophy, theology, the Church and other social aspects of the problem from different perspectives, but they do not address the precise technical and medical steps which are part of the cycle which we are necessarily required to focus on because it is proposed at some stage in that cycle to confer a constitutional right. The implications of that are only clear if we know at what stage it is proposed to confer that constitutional right.
It is important to stress the fact that, as with all animal life, there is an enormous wastage created in the natural reproductive process. Of 100 ova which may potentially fuse with a spermatozoa, only 1 in 4 or 25 per cent. will successfully fuse and become fertilised.
If we think that the amendment as it stands means that life for the purposes of conferring a constitutional right to life  begins at fertilisation, then there will be a 75 per cent loss of that constitutional right to life by natural wastage within the very early stages of the process.
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