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

Wednesday, 25 May 1983

Seanad Eireann Debate
Vol. 100 No. 11

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Atógadh an díospóireacht ar leasú Uimh. 1:

I leathanach 5, líne 24, An Sceideal, Cuid i, taréis “breith” an méid seo a leanas a chur isteach:

“gan an t-ubhán toirchithe roimh ionphlandú don ubhán toirchithe sin i gcneas na broinne a áireamh”,

I leathanach 5, líne 30, An Sceideal, Cuid II, taréis “unborn” an méid seo a leanas a chur isteach:

“which shall not include the fertilised ovum prior to the time at which such fertilised ovum becomes implanted in the wall of the uterus”.

Debate resumed on amendment No. 1:

In page 4, line 23, Schedule, Part I, after “breith” to insert:

“gan an t-ubhán toirchithe roimh ionphlandú don ubhán torichithe sin i gcneas na broinne a áireamh”.

[1109] In page 4, line 29, Schedule, Part II, after “unborn” to insert:

“which shall not include the fertilised ovum prior to the time at which such fertilised ovum becomes implanted in the wall of the uterus”.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  I might continue in the context of a discussion on the right to life. Like the Senator who sought to raise the matter of Nicky Kelly, many of us are concerned about the aspects of that life and about that imprisonment. I should like just briefly to join in sympathy with him.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  I do not think the Senator can bring that in and the Senator knows that well. I have ruled on the matter.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  I appreciate that and the Chair has a difficult task but in the context of a discussion on the right to life the right to that individual life does not go unnoted.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  Will the Senator help me in the process?

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  Is there any way the ruling of the Chair can be overruled by the House on this issue?

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  No, but I will discuss the matter with Senators when I leave the Chair. Senator Robinson to continue on the Bill.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  I had been referring to the substantial natural wastage that occurs at the very early stage of the reproductive cycle and the figure I had commenced with in this quotation from the briefing drawn up by members of the medical profession was that 75 per cent of the ova which may potentially fuse with a spermatozoa do not do so and do not become fertilised. I wish to continue the quotation on the wastage after this process of fertilisation. The quotation continues as follows:

The process of fertilisation, which [1110] depends on factors such as how close the woman is to ovulation, takes anything from one hour to three days. Of that 25%, only half (or 12½%) will continue in the normal fashion by travelling down the fallopian tube (where fertilization takes place) to the uterus (or womb) in order to implant in the wall of that organ. In eight to ten days implantation is normally complete. Once again, of that 12½%, only some 9.3% will successfully implant — the rest being spontaneously aborted. Thus we can see that some 50% of fertilized ova which fail to implant are discharged in a normal menstural flow of which the woman has no knowledge. So even before the matter of contraception is introduced, nature has provided that only 50% of fertilised ova will have any chance of implantation.

Clearly then, the fact of such a high rate of natural wastage marries poorly with absolute or theological definitions as to when life begins or indeed as to when potential human life becomes inviolable. The incidence of spontaneous abortions is normally quoted as 1 in 4 of implanted pregnancies. If the loss of fertilised ova (as well as implanted ova) were included then the rate would be in the region of 64%.

One can see therefore, that the interpretation given to the word “unborn” is of vital significance. For if the Supreme Court of Ireland interprets the word in a strictly fundamentalist manner as being from the moment of conception of fertilisation in the fallopian tubes, then we may presume that such an interpretation will perceive the 50% of fertilised ova being expelled as being some form of spontaneously aborted life. It should be noted, moreover, that while such an interpretation would therefore oblige the State to “defend and vindicate” the right of the fertilised ovum the question of what protection would be made to those spontaneously expelled is difficult to answer.

The medical analysis of the cycle we are discussing is one which brings out the very significant natural wastage between conception and implantation.

[1111] It always has been my fundamental belief as a legislator that we should legislate for a basic reality and that we should not, for example, confer a constitutional right on plant life, or a constitutional right on the armchairs in the Seanad or a constitutional right on some very pretty orchid that flowers every century, or something of that kind. We do not go about doing that but we may well be doing something rather close to it in proposing to confer not just a constitutional right to life but a constitutional right to life which is equal to the right of a mature woman on the fertilised ova a very substantial proportion of which will be flushed out by natural wastage before implantation.

The question could be asked: what does it matter if we are conferring a constitutional right to life on fertilised ova when 50 per cent of them are being lost through natural wastage in the menstural flow? The thrust, as I understand it, of the pro-life campaign, and of members of the medical and legal professions — including Senator Eoin Ryan in his contribution on Committee Stage — is to suggest that this constitutional amendment will not make any difference to the existing law which prohibits abortion and it will not make any difference to existing medical practice. I question that very seriously because if the conferring of a constitutional right has any of its normal attributes — I presume it does because we have not qualified it — then it will and must make a very significant difference to medical practice and the legal framework which surrounds that medical practice. Any obstetrician or gynaecologist who says, “As far as I am concerned this constitutional amendment will not make any difference to what I do” is possibly saying, “I will act outside the law. I will act regardless of what the law is, particularly regardless of what the most fundamental law of the country, the Constitution, says.” I have no doubt that the doctors who have said it will make no difference to their practice do not envisage that they could be operating outside the law but it is our task this afternoon, and for as long as it may take us, to seek [1112] to bring to this debate at this very late stage the kind of technical precision which will enable us to understand much more clearly and precisely what is envisaged. If it is the case that the right to be conferred in this proposed amendment extends to the fertilised ova then we have to reconcile that with the reality that a very substantial proportion of the fertilised ova now blessed with the constitutional right washes away in a menstural flow.

The other aspect of the question is: what difference will that make to existing medical and contraceptive practices? This is crucial to an understanding of the existing text of the proposal and also of the scope and purpose of the amendment before us. The implications of the proposed amendment, if it extends from the moment of conception to the fertilised ovum, are very substantial and very worrying in the area of contraception. They would make a substantial difference to the review of the family planning law which the Minister for Health has announced he is carrying out. They would substantially affect the existing position and, therefore, it is necessary to explain in somewhat more technical detail than is usually the case the way in which various types of contraceptives either work or are thought to work. In some cases there are alternative interpretations of precisely how they work and how they would be affected by the wording of this amendment if the right to life of the unborn extends from the moment of fertilisation of the ovum. I should like to turn to the description of various types of contraceptives as set out in the briefing prepared by members of the medical profession. I will quote from part of the briefing which describes the operation of the intra uterine device, the IUD:

It is still unclear how the IUD prevents pregnancies. One theory is that its presence in the uterus creates a chronic inflammation which increases the number of white blood cells which in turn destroy the fertilised ovum or spermatozoa. This inflammatory reaction is also thought to interfere with the implantation of the fertilised egg in [1113] the endometrium (lining of the uterus). It is also not clear how the copper in the more recent IUDs works. The IUD is not recommended for women who have had no children. Of all methods currently available in the field of contraception it has perhaps the most drawbacks. However, notwithstanding this, it can be a good method for older women who have many children and whose circumstances make other methods of contraception unsuitable. In particular, it is used in this country by those women who require a contraceptive method which needs little regulation and which is relatively cheap. In practice doctors and family planning clinics find that many working class women, older women and women with large families rely on this method. It is also one of the methods advised to the woman who is an unsuitable candidate for the combined Pill and for those women who have reached the age at which continuance with the Pill becomes increasingly dangerous, (approximately 30-35 for the woman who smokes and 35-40 for the nonsmoker). In 1981 alone, over 2,500 IUDs were inserted in Irish women.

We there have a type of contraceptive used by women with the features described and with special reference to working-class women because, with certain drawbacks, it is nonetheless a much cheaper type of contraceptive device than the pill or some other devices. We know it is prescribed and inserted by doctors in Ireland. If we confer a constitutional right to life, which is equal to the right to life of an adult woman, on a fertilised ovum and if the State must defend and vindicate that right then it is very difficult to see how it could be possible to continue to allow the IUD to be used as a contraceptive in Ireland. That is one immediate practical change which appears to be necessary in order that the doubt about the prevention of implantation, which would then be a doubt about the continuance of a constitutional right to life, would be reconciled with the constitutional amendment. There could not continue to be that practice given the new recognition [1114] of this constitutional right to life and the equation of that right with the right of the adult woman.

Any doctors who say that as doctors they will continue doing what they were doing before are only aggravating the situation by in some way pretending that there are no implications in conferring a constitutional right to life. The difficulty there is that in a sense the law has been brought into disrespect by this proposal for a constitutional amendment. It has been very divisive. It has given rise to a great deal of controversy and questioning. It is not helped by the attempt by some senior medical men who are in favour of a constitutional amendment blinkering themselves and saying it will make no difference to their current medical practice. Those two stances are not in fact reconcilable nor is the general approach of the pro-life lobby that the constitutional amendment will not make any change to existing law and is purely for the purpose of copperfastening the existing law. I dealt with that, like other Senators, at some length on Second Stage, but it is worth referring to it in more technical detail on Report Stage on this amendment.

It certainly seems logically impossible to reconcile the known medical facts about the IUD and a proposal which would intend to confer a constitutional right on the fertilised ovum before implantation, a constitutional right to be equated with the right of an adult woman. Any doubt about the method of operating of the IUD would simply rule out the IUD because the State would be bound to defend and vindicate the fertilised ovum. There is no way that the organs of the State, or the Minister for Health, or anyone else, would be authorised to try to get around that though I know we have these Irish solutions to Irish problems, but must we always approach serious problems in Ireland with our hypocritical and back-door Irish solutions? Surely we can admit in this House the absurdity of giving a constitutional right of life to a fertilised ovum which is equal to the right of a mature adult Irish citizen, an Irish woman. If we at this late stage could admit that absurdity [1115] we would avoid some of the practical and, indeed, harrowing problems which are going to be the result of this amendment if carried because we are talking about working-class women who probably found it difficult to get advice in this area anyway. They probably had to go out on the line a bit to find either a family planning clinic or a GP who was able to give them the medical help and experience. Now we, as legislators, are proposing to let a constitutional amendment to be introduced with further barriers to that knowledge and that help, with further possible consequences of increasing the number of unplanned — I prefer the word unplanned than unwanted — pregancies and therefore increasing the pressure to go for an abortion or a termination in the United Kingdom.

This is a very grave responsibility on all of us. It is not too late for Senators to reflect that if this amendment does prevent the availability of certain types of contraceptives which are at the moment availed of — this is the real world, they are being used and women are availing of them in planning their families — then we may paradoxically and ironically be increasing the abortion trail to Britain. We may, in fact, put on that further additional pressure which will mean that the graph, which is already rising very sharply in a way which must be causing serious concern right across the board among legislators, will rise further, in the name of doing the very opposite.

The other type of contraceptive which it would appear must be affected by this proposal is the type of contraceptive pill which affects the process of implantation, however it affects the process which in some way is intended to prevent implantation. I turn to the summary in this medical briefing of the progesterone only pill. It states:

The Pill is thought to act in various ways. These include a thickening of the cervical mucus at the entrance to the uterus rendering it hostile to spermatazoa; preventing implantation by attaching the steroid receptors in the endometrium and perhaps by altering [1116] motility in the fallopian tube, thereby curtailing the mobility of ova in the fallopian tube. It may also inhibit ovulation (release of the ovum from the ovary). It is the contraceptive of choice in older women because of the high cardivascular risks inherent in the combined oestrogen and progesterone Pill; in women with valvular heart disease and others who cannot take oestrogen; and by those who are breastfeeding. It is also the only medical (non-barrier) method available to diabetic women. The numbers of women using this method of contraception have increased significantly since 1975 and in 1981 1% of Pill users were taking the progesterone only pill.

That is another category of women who are at present using a type of contraceptive who would appear to have their choice of method of family planning affected by this proposed amendment. This is something which will have to become much clearer if this amendment goes through when the debate is taking place prior to the referendum, that existing practices must necessarily change if the right to life of the unborn is deemed to be a constitutional right of the fertilised ovum.

The next method which would be affected is the practice in relation to post-coital contraception. Again I quote from this briefing:

A definition of “unborn” as beginning at fertilisation would also affect the availability of post-coital contraception which is particularly helpful in treatment of rape victims. This is available in the form of an oestrogen progesterone combination — in fact one of the brands of the combined Pill — administered within 72 hours in order to prevent ovulation, or if this has already occurred or if spontaneous ovulation has been brought on by the act of rape, to prevent implantation of the fertilized ovum. The IUD can also be inserted up to ten days post-coitally and both these methods have success rates of over 99%. Should the wording of the amendment be interpreted so as to render many contraceptive Pills and IUDs on the market illegal, there [1117] would be no treatment available to the woman who has been raped and if she should find herself pregnant, would have no alternative but to continue with the pregnancy or to seek an abortion, if possible, abroad.

This proposal could do the very thing which I felt, listening to the contributions to the debate, was not desired by the Senators on that side of the House who were strongly supporting it: it would increase the pressures for abortions, the pressures for termination of pregnancies abroad.

There is no good saying that Irish women would not be susceptible to or are not affected by the pressures and the difficulties in which they find themselves and would not go abroad for termination of their pregnancies. We have the statistics. We know that the official figure of 5,000 women going abroad in 1982 is an under-estimate of the real figure. It under-estimates the numbers of those women who go to have their pregnancies terminated and give English addresses, either fictional addresses or addresses of relatives in England. Therefore, it is fair to say that the figure of 5,000 is an under-estimate of the actual figure. If we remove various kinds of contraceptive practices which are available and availed of at the moment is it not irresponsible of us not to at least admit the probability that some of those women will take the only other option open to them if they find themselves pregnant in circumstances which they feel they can cope with, that they will go to Britain and have an abortion?

When we get down to the precise technical scope of both the wording before us and the intention of this amendment, it is a necessary consequence of the scope of the proposal, if it means that it confers on the fertilised ovum a constitutional right to life, that it will outlaw certain existing contraceptive practices and will necessarily increase the pressures for abortion. We may end up with our high-falutin' constitutional amendment ensuring that no abortion is committed on holy Irish soil while we increase the abortion race to various cities in [1118] England as we export this social problem. That is only one important aspect of the wording. The other dimension is that the fertilised ovum would be recognised in the constitutional amendment as having an equal right to life. The doctor who was asked to treat, advise or help a woman would have to have regard to the equality of right as between the woman and the fertilised ovum. This again could, and indeed must, affect the kind of advice and help which the doctor could give and the kind of approach he could adopt in those circumstances.

Therefore, it is, perhaps, ironic that we would have what I welcome very much, a proposal by the Minister for Health to bring forward a major review of and a major amendment to the legislation on contraceptives in a very substantial overhaul of the Health (Family Planning) Act, 1979 but the Minister too will have to live within the law and within the constitutional amendment. He personally has opposed it, but if this amendment goes forward, then it will constrain the scope of any legislation on family planning and will introduce a kind of absurd dimension to it of equating the fertilised ovum with the adult Irish woman. The proposal in this amendment to define the scope of the constitutional right which we are discussing and to exclude from it the fertilised ovum prior to implantation is in my view a significant improvement in removing some of the worst — in regard to both legal absurdity and practicality — problems of this proposal to amend the Constitution. It would certainly diminish the very real apprehensions about the scope of the wording when undefined. Since Senators are limited on Report Stage in the kinds of amendments which can be tabled, I would have no hesitation in supporting this one.

Another aspect of the conferring of the constitutional right which it is important to refer to again on this amendment and on Report Stage is one to which I referred on Second Stage. It is worth bearing in mind that once we as legislators in our wisdom — or lack of it — decide that we will confer a constitutional right on the fertilised ovum, then that right can be vindicated in our courts. That right can [1119] be asserted and can be put forward by third parties. It obviously cannot be asserted by the entity which holds the right — if I may put it that way. Clearly the fertilised ovum or the implanted ovum cannot assert any right, but the right can be asserted on behalf of that entity on whom we have decided a constitutional right will be imposed. This is extremely important for the organisations which may help women — for example, the Rape Crisis Centre — in relation to advice to women or young girls who have been raped. Rights could be asserted by third parties. A kind of vigilante third party injunction procedure could develop to prevent the practices in relation to rape victims from in any way infringing a constitutional right to life. This is not far-fetched; it is quite possible once the constitutional amendment would be passed. Similarly, as has already been mentioned, it is possible that a third party, or an organisation on behalf of people who had been sponsoring this constitutional amendment, would seek to ensure its full enforcement, and, for example to prevent any referral of women to agencies in Britain for termination of pregnancies, or if they learned that a woman had been referred expressly to an address in England for a termination of pregnancy, for an abortion, would seek an injunction to prevent the woman from travelling abroad for that purpose. This is not far-fetched, it is not unreal. It fits into what we are doing. If we give a constitutional right to life to the fertilised ovum and if we say that that constitutional right to life is to be equated with the right of adult women, then we invoke the possibility of a whole legal process.

As I mentioned, a Leas-Chathaoirligh, and I recall you were listening intensely in the Chair at the time, I also referred on Second Stage to the cases that have already been taken before the Commission on Human Rights relating to the issue of abortion. The Commission on Human Rights ruled out any broad-based right-to-choose approach under the convention. In examining the two articles of the convention that are relevant — article 2 which proclaims the right to life and [1120] article 8 on protection of family life, the Commission in the Paton case concluded that the foetus had a right to life, but that that right to life was not equal to the right of the mother. It was necessarily and biologically subservient to, not equal to the right of the mother.

This is the first example in my parliamentary experience of a case where we in Ireland appear to be determined to bring in a constitutional amendment which would appear to violate our commitments under the Convention for the Protection of Human Rights and Fundamental Freedoms. As a high contracting party we are bound by our obligations under the convention, yet by the wording of this amendment we appear to be deciding that no matter what our obligations are, no matter what human rights issues are concerned, we will press ahead and allow this amendment to be put to the people and seek to secure this change in the Constitution. It is important to bear that in mind. We are in some way seeking to insulate ourselves and this is completely different from the question of whether some or all of the other countries belonging to the convention have legalised abortion of some kind. That is not the central issue. The central issue here is a definition of rights, a definition of the right and relationship of the fertilised ovum and then the embryo and foetus to the woman. In the text of the amendment we appear to be taking a different course which would be regarded as not compatible with our obligations as a member state of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Finally, yet very important, as Senator McGuinness said in moving this amendment, if the text before us has the meaning that life — which for the purposes of a constitutional right to life is equal to the right to life of the mother — begins at conception, then it is sectarian. It is sectarian beyond doubt and equivocation because it represents the doctrinal tenets of one sect which happens to be the majority Church here, the Roman Catholic Church. It is by necessary definition a sectarian proposal. The only Church in Ireland which supports the concept of a [1121] right of that nature which can be recognised as a constitutional right from conception is the Catholic Church and that has been clear from the different doctrinal and, therefore, moral attitudes and responses on this issue of abortion. It is the essence of the differences that exist, which are not very great but they are fundamental. That is the fundamental difference. If you take an absolute view of the right to life as from conception or the right of the fertilised ovum, then that is the doctrinal and moral viewpoint of the Catholic Church which is not shared by any of the other Churches.

I have listened with considerable interest to the discussions which have taken place on various television and radio programmes on this issue of whether the constitutional amendment proposed is sectarian. What is very interesting is the reluctance of senior politicians to draw a commonsense conclusion. Even if they do not want to get too deeply into the differences on the theological and moral issues, even if they do not want to get too deeply into the fertility cycle and the time lag between conception and implantation, if that it too hard for the mental processes or too complicated or too embarrassing in some cases for these senior politicians to consider, surely from a commonsense point of view this must be a sectarian proposal if one Church not only supports but is pulling strings all over the place and is already deeply involved on the ground in influencing attitudes and approaches to it. All of the other Church groupings are saying primarily that they do not want any amendments at all and secondly they particularly do not want this amendment.

An Leas-Chathaoirleach:  May I interrupt the Senator? I would like her to relate her remarks to the amendment before us. We are on Report Stage and the Senator is repeating much that should, perhaps, have been said last week. I am sorry to interrupt you, Senator Robinson.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  What I have just been saying, with all respect to the direction which you are giving from the Chair, is [1122] precisely on the point of this amendment but I will make that clearer if you so wish. The problem is one of a very vague text which does not define when the constitutional right of the unborn begins. I would like to hear the views of the Minister of State. Indeed, we could take a roll-call on where Senators think this right begins under the present text. It would be very interesting to ask each Senator if he or she thinks it is conception, it is implantation or later than that. We might get a whole variety of answers from individual Senators.

An Leas-Chathaoirleach:  Yes, but I still think Senator that that would have been a nice exercise last week.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  No, this exercise is precisely related to the amendment, with respect a Leas-Chathaoirligh. Senator McGuinness in this amendment is being precise in a way which would remove this charge of a sectarian text. As I said, and I agree with her on this, it is open to the criticism that it is sectarian if the proposal is, as apparently most people think it is, that the right to life begins at conception and the constitutional right relates to the fertilised ovum prior to implantation. If that is the case then we are talking about a clearly sectarian text.

I do not want to pass a sectarian text and I do not think anybody in this House does. If they do not, let us then consider what kind of a text we can pass which would not be sectarian. If we consider that, then we can address ourselves to this amendment because it excludes the fertilised ovum prior to implantation. Therefore, whatever else this constitutinal amendment may be and whether it be strictly necessary or appropriate to have it by way of constitutional amendment, at least it would not be sectarian in that full sense that the wording would be if it has the other meaning. If nobody wants it to have the other meaning, well let us get rid of this smear that it is sectarian. Let us not have the embarrassment of a measure that is going through the Oireachtas in 1983 being called sectarian. Surely if that is even raised seriously by a Member of this House then all [1123] of us on this island which has suffered so much in the last few years must spend a long time if necessary in reflecting on and considering if that is a serious charge and if it is being made by responsible people inside and outside Leinster House. If it is, then surely even at this late stage we must do something about the wording that will get us over that problem. We have the opportunity in this House because we have a proposal to decide precisely when the scope of this constitutional right will come into effect, into being and what the precise moment will be and the Report Stage amendment before us would largely meet that kind of critiscism, the kind of charge that is very difficult for people outside this country to understand.

Our friends outside Ireland find it very difficult to understand how we could be considering and be determined to process through the Oireachtas a sectarian amendment in the face of all that has happened on this island particularly in the last 15 to 16 years and in the face of political initiative such as the proposal for a forum to consider the possible framework of a united Ireland. Therefore, since the charge has been made by responsible Church leaders, leaders of opinion in this country, and a number of Members of this House, apart from myself, that this text is sectarian I would say that we have a very real opportunity by accepting this amendment to remove that charge, not to bull ahead with a sectarian amendment; not to put before the people a matter on which they are not specialists and which can ultimately to them be clarified into the simple issue of whether one is pro- or anti-abortion. They are not responsible as we are for the texture and fabric of the legislation of the constitutional amendments which we pass. There is no doubt in my mind that the amendment now before the House could diminish very substantially both the charge of sectarianism which stands and which has not been repudiated and also the very real practical and medical difficulties posed by the text as it now stands.

In conclusion, I intend to sit out this debate in the hope that I will get some [1124] answers. I do not really mind where I get them from. In fairness I do not expect to get them from Senator McGuinness because she shares my problem. She has already indicated that she wants answers too. Although she is the proposer of the amendment and has explained why she has proposed it, she can hardly give either the official answers of the Government or the answers of the party in this House who support the amendment. Perhaps an official spokesperson from the party in this House who support the amendment can answer the questions in the kind of detail which I am seeking. I really would like to have technical, medical detail. I do not mind whether it comes from medical textbooks, from specialist knowledge or just from much homework done by individual Senators. It would be interesting at least to get in this House precise answers either from the Minister of State or from the party who by supporting this amendment with a whip are ensuring, it would appear, that the text will go to the people in the way in which it has been passed on Committee Stage.

I shall listen to and read with interest every word spoken in this debate as I have done in the earlier Stages of it precisely to see if any Senators will address themselves to the questions I have asked. Will anyone address himself or herself to the issues of when, in the view of the Fianna Fáil Party, this constitutional right of the unborn begins, what effect that will have on the various practices that are availed of at present by Irishwomen, and how the Fianna Fáil Party answer the charge that this is a sectarian text not in vague terms but in very precise terms in the way in which it has been asked? If I can get some answers to those questions, then this debate will have been of some use and can lead on to the broader debate in the country when the referendum itself takes place.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I will not take long and I promise not to repeat myself or to incur the wrath or disapproval of the Chair at any stage in the course of my contribution. Perhaps it is an optimistic promise but I hope to keep my side of it anyway.

I have listened to an enormous amount [1125] of the debate in this House. Let us remind the public that this amendment was debated in this House, had a Committee Stage and is now having a Report Stage which did not occur in the other House, for reasons of political expediency, I suspect. The fact that we are having this debate stands to the credit of this House and its Members. As one who has been critical of this House I say that at least on this issue this House distinguished itself.

Subsequent to my contribution on Second Stage I received a considerable number of letters most of which I will not bore the House with, but one was from a Dissenter from Northern Ireland and by that I mean he would not describe himself as neither Catholic nor Protestant but Dissenter. I am grateful to my colleague, Senator Robb, for explaining that fact to me about the individual in question. He is a member of the New Ireland Group who are, generally speaking, members of the non-Roman Catholic Churches who are committed to the ideal of Irish unity and he edits a newsletter. In the course of a complimentary letter which I will not read out he quotes one line from a poem by a Northern poet, John Hewitt, upon whom Belfast City Council decided to confer the freedom of the city last night. Since I have a habit of quoting poetry and putting it on the record of the House that one line deserves to be added to the record. It is:

“The sick guilt-clotted legend of our creed-haunted God-forsaken race”. If ever a line summed up the underlying implications, guilts and fears of this debate it is that description. We are all to some extent described by it whichever Church we belong to. I have wondered for a long time about this debate and I do not wish to revert to Second Stage again but one thing needs to be said. I hate to say it because it is party political and I try to keep away from that. I abstained when we debated the constitutional crusade in this House on the grounds that I did not trust the Fine Gael Party to live up to the aspirations of that crusade. In the light of recent events perhaps I am sorry that I did not vote against it but I am particularly happy that I did [1126] not vote for it because that crusade is dead.

On the question of the amendment to this amendment that has been produced I will explain my own position in a moment. I would like to quote from a letter in The Irish Times of today, 25 May 1983:

I ask the question “is the right to life of the mother to be jeopardised in the interest of the unborn, who we, as doctors, know cannot survive outside the mother's womb”? I, as a doctor, will say “No”, but where then do I stand vis-á-vis the law, which may soon demand equal rights to life for both? Justice is one thing and the law is another. Unfortunately, the law is not always just. Is it not unthinkable to expect doctors to rationalise in terms of the law first and medicine thereafter?

He goes on to explain the Catholic principle of the double effect which is a Catholic theological concept permitting treatment of a patient with a serious condition despite the fact that she is pregnant. Further on in the letter he says:

The new wording must ensure that the principle of the double effect will now be applied to both the unborn and the mother with possible disastrous consequences.

The author describes himself as:

a conscientious objector to abortion when I was a practising obstetrician in England

and the view, he says, was unequivocally accepted by his superiors. He says:

It is criminal, it is dangerous, it is wrong, to introduce a law which would withhold proper accepted medical practice from any woman in this country and people must be made aware of this fact. This is a dangerous precedent, because neither the law nor the public should be able to dictate to doctors what is best in the field of medicine.

He concludes:

I honestly believe that the Pro-Life Amendment Group in this instance are [1127] unintentionally leading us on a dangerous crusade, which could end with this country having legalised abortion in a matter of years. Give some thought to the fact that it is quite probable that the wording of this amendment could be interpreted as discriminating against conscientious doctors in the accepted practice of modern obstetrics.

I read all this because it has been asserted continuously in this House that there is no problem for the medical profession with this amendment as it stands. The author of the letter is Fergus P. Meehan, Lecturer in Obstetrics in Gynaecology in University College, Galway, and Consultant Obstetrician-Gynaecologist in the Regional Hospital, Galway. I do not think I have been selective: it is written by a man who obviously has thought very carefully and in great detail about it.

Again I repeat what I said on Committee Stage to the one party in this House who claim to have no problem with this amendment, that unless we are returning to the days of the empty formula which served that party well at one stage, and which I would have understood at that stage, they have an obligation to explain to us all what this wording means.

With regard to the two amendments, Senator McGuinness has, unfortunately, touched the Tory in me to some extent in the sense that I do not know for certain when life begins. I do not know at what stage you can talk about the rights of the unborn. I do not know for certain whether you can define equal rights of mother and child or prior rights of the mother. I know that I do not believe that the theological conceptions of any Church should be embodied in the Constitution. Where one wording would embody the theological perceptions of one Church, the alternative proposed by Senator McGuinness, I suspect, would embody the theological perception of another Church. We have had too much, as John Hewitt said in the line I quoted, of Churches telling us how to define our legislation, whether it be majority Churches, minority Churches or other Churches who fall somewhere in [1128] between: in other words, presumably they are hung Churches, they do not have a majority or a minority — perhaps that is where they all should be, I do not know. I do not believe the solution to these problems is to institute one definition rather than another. All we are having pointed out to us is the fact that this is an unsuitable matter for a constitutional amendment, that it cannot be defined in terms which will not give offence and which will not cause trouble. For instance, if Senator McGuinness' wording was to be accepted and perhaps, although I would never accuse her of such deviousness, this was her intention, there is no doubt as to what the consequences would be. It would be overwhelmingly defeated because it would be unacceptable to the majority Church which, unfortunately, seems to have that sort of influence. That is not the reason.

I could not bring myself to vote for a particular form of words which would define some of the issues that I do not believe are definable and that I do not believe that I know the answers to. I do not know when human life begins. I do not think that anybody else knows when human life begins. I do not know how you define the rights of one versus the other in a Constitution. I do not believe anyone will ever know. The problem with all this is that people want to do something about making abortion even more strictly prohibited than it is, if that is possible. To do that they want to ignore the realities of human anatomy, of obstetrics and want to make definitions that are impossible to make and write them into the Constitution. I sympathise with Senator McGuinness' dilemma. I understand what she is trying to do but I regret that I cannot support her amendment.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  What I have to say at this stage of the debate will be specific and to some extent will be brief in so far as some of the questions have been posed by both Senator Robinson and Senator Brendan Ryan. I want to develop a continuity between Committee Stage of the debate and the Fourth Stage which we are now at and we are discussing the first [1129] amendment in the names of Senator McGuinness and Senator Ross. On Committee Stage, in the course of a second speech by Senator Eoin Ryan he made some extraordinary assertions of certainty. He said there was no ambiguity whatsoever about words and he went further than that to characterise the arguments of those who suggested that definitions were important. Senator Ryan, for example, suggested thay my request for a definition of the word “unborn” was in fact a pedantic pursuit. He said it was 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.

Since we discussed that, we heard the letter to which Senator Brendan Ryan referred, from Fergus P. Meehan, Lecturer in Obstetrics and Gynaecology, University College, Galway and Consultant Obstetrician-Gynaecologist, Regional Hospital, Galway, which is on page 9 of The Irish Times of 25 May 1983. Fergus Meehan is a former lecturer in obstetrics and gynaecology at Oxford University. We have, in addition to Fergus Meehan's questions, a letter in the same paper from three individual obstetrician-gynaecologists in different parts of the country calling a meeting in Dublin to discuss the implications of the wording of this amendment for their doctor-patient relationships. It was not their concern that moved me to ask specific questions on Committee Stage that derived entirely from the language: it was the fact that what I described had been provided to me as descriptions of situations that had arisen in the treatment of women by doctors. It is in the interests of those women and women in the future that I want it on the record of this House that at every stage of the debate we asked for a definition of the words and for somebody to spell out the implications for women and for our society of accepting a form of words that nobody seemed to want to answer. Today's letter from Mr. Meehan is most interesting. It rejects flatly what Senator Eoin Ryan said on Committee Stage. He ends with the quotation [1130] that Senator Brendan Ryan mentioned.

Give some thought to the fact that it is quite probable that the wording of this amendment could be interpreted as discriminating against conscientious doctors in the accepted practice of modern obstetrics.

He says earlier on

Doctors must stand apart and consider the possible consequences of this new wording. Under section 58 of the Offences Against the Person Act, 1861, we apply the “principle of the double effect”, which is a Catholic theological concept permitting treatment of the patient with a serious condition despite the fact that she is pregnant. The new wording must ensure that the principle of the double effect will now be applied to both the unborn and the mother, with possible disastrous consequences.

Those are not the words of a Senator pursuing a pedantic definition, they are the words of a practitioner who, interestingly, and I quote from the first paragraph of his letter said

I am a consultant obstetrician and gynaecologist who is not affiliated to any pressure group and who is antiabortion. I speak as a citizen and as an obstetrician concerned for pregnant patients with serious disease who will require treatment in the future. I believe that the proposed wording of the amendment to the Constitution could be detrimental to patients and endanger their safety.

I emphasise that is a statement of somebody who is a practitioner. He said it could also be deleterious to the training of obstetricians and gynaecologists in this country. He makes a point which is interesting, he said

... respect for the unborn is enshrined in the Hippocratic Oath and was updated in the Declaration of Geneva in 1948, but nowhere will you find references advocating equal rights to the unborn, except in pronouncements [1131] from the Pro-Life Amendment Campaign.

He goes on to develop the point and I certainly do not intend to delay the Seanad by referring to it in detail. I will quote one last paragraph to refute the charge of pedantry from Senator Eoin Ryan. The lecturer in obstetrics and gynaecology said:

It is criminal, it is dangerous, it is wrong, to introduce a law which could withhold accepted medical practice from any woman in this country and people must be made aware of this fact. This is a dangerous precedent, because neither the law nor the public should be able to dictate to doctors what is best in the field of medicine.

This letter appeared in The Irish Times this morning and it appeared last Saturday in the Irish Independent.

I thank Senator Ryan for his courtesy and for his attempt in his speech to answer questions I posed. Having said that the question about the unborn that I had posed was just the outgrowth of a general weakness of academics to be pedantic, he went on to suggest that none of these questions about the health of women was anything but an abstraction. His words were that commonsense would prevail. He had the courage to state in Vol. 100, column 992, of the Official Report as follows:

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...

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.

Mr. Meehan is a man who confesses early in his letter that it is with reluctance that he intervenes in this debate at all. He describes his previous situation as a practitioner in England and he begs us in his last paragraph to stop before it is too [1132] late because he considers we are interfering in practices that are in existence at present and that what we are doing has implications for women and implications for the training of obstetricians and gynaecologists.

I respect evidence like this and I respect the concern of those practitioners who have gone so far as to call a public meeting to discuss the implications for the Hippocratic Oath of having to live with the wording of this amendment. I find it truly extraordinary as a Senator that one can stand up here and ask for definitions of words, as we are told in the Standing Orders of the Seanad we are entitled to on this Stage of a Bill, and be told by default that it is nobody's responsibility to define words that will go, presumably, if all this farce is brought to a conclusion, on to a ballot paper and appear before the eyes of the citizens. That is a disgraceful denial of our responsibilities as legislators.

I directed my remarks through you, Sir, to the party who got the wording that they wanted. I said to them, “Whence your phrase ‘the unborn’? Where did you get this phrase?” There is no way that we are anything but perfectly in order when we ask what is the legislative definition of this term. I must conclude from the evidence before me in the editorial of a Catholic newspaper about six months ago which ran an editorial headed “The World Awaits”, that we are willing to use a word that we are not able to give a precise meaning to, the consequences of which we are willing to live with, despite the clearly demonstrated evidence that it will have an effect on the lives of women, that we are willing to do it for window dressing because of course the word “unborn” does have a context. It was brought into discourse here in Ireland from the moral majority in the United States and, as I said on the previous Stage and it is the only repetition I will use, its attraction was its strident moralistic quality, its ability to strike a chord. Since we moved to Report Stage there is a debate much less civilised than this one going on in the country in which there is an attempt to define the word “unborn”.

[1133] On 15 May 1983 the parish newsletter of Kiltoghert in County Leitrim had no difficulty about using the word “unborn”. The priest of the day put this newsletter into the hands of everybody who attended Mass. After welcoming the new Bishop to the parish for his first Confirmation ceremony and describing the bunting in detail, he said:

To go to a less pleasing topic, we must keep praying for the unborn. No doubt some will say “not that again, please”. That is exactly what the pro abortionists are hoping you will say and that is why they have succeeded in dragging the negotiations on from month to month, hoping in the end to prevent the referendum taking place.

We are not dragging it on but we have the right for the Seanad record historically to show that at every stage of this debate we sought definitions and answers to questions that had implications on the lives of women and we did not get answers.

I continue the quotation:

In the meantime their strategy is to confuse and ridicule. It would be interesting to know how much of the millions of pounds that those American priests told us about a few months back, has already arrived. Fourteen Senators opposing the referendum! I quote from their leader last week. “The tactics practised by the society for the protection of the unborn child are representative of the ugly, bigoted side of Irishness”.

I spoke on Committee Stage about the tactics, not the origin of the movement. The newsletter goes on to say:

The fellow (Michael D. Higgins) doesn't know or doesn't want to know that the Pro-Life Movement began in England by a group of Church of England ministers and members of that Church and that the present international chairman of the movement is the Rev. Alan Robjohn, a Church of England Minister in Cardiff and that the governing body is quite English and substantially Protestant.

So much for Mr. Higgins' label “the [1134] ugly bigoted side of Irishness.” If Mr. Higgins' lies and distortions is of use to the pro-abortion movement then he should apply for a slice of those millions that must be floating around Leinster House those days.

That was published and given to everybody who attended Mass in that parish since we had the Committee Stage debate under a canon whose name I will be kind enough to spare from the record, and a number of acolytes who are listed. The hyprocisy of this debate is that on Second Stage we asked the justification for this referendum at all; on Committee Stage we asked about the meaning of certain clauses of the Schedule of the Bill and we are given no answers, despite the fact that we asked the questions in the interest of women. Now on Report Stage nobody is going to define the words and yet there are people who will not only define the words but will go on in their definition to slander and defame as they have for the last 12 years when something progressive was suggested in this country. There are people in the pro-life amendment campaign who would be appalled by a statement like this. It is to the credit, for example, of Senator Hanafin that early on in the debate on the previous Stage he dissociated himself from tactics like this. Many other people have written to me to say that anyone who put this into the hands of the public on a spiritual occasion does not speak for them. Nevertheless, this is what we are assisting; we are willing to say that we debated the matter in the Dáil, we debated the matter in the Seanad, we asked questions which were not answered, and we used words which could not be defined. We decided, like in the case of a greasy ball at a rugby game, to let the ball off to the people so that we could do some kind of hand washing exercise to suggest that it was not important

I have thought very carefully of Senator McGuinness' amendment and she, I know, will understand that my position from the very beginning as one of the early sponsors of the anti-amendment campaign was that I absolutely opposed this [1135] amendment. I described it as hypocritical and unnecessary and people can read the Second Stage record of the debate. But I am going to support Senator McGuinness' amendment because she is seeking to do something that the representatives of the larger parties are not doing in this House. She is seeking to do something that will save us from the worst of ourselves. She is at least trying.

Senator Mary Robinson, as could be expected, gave a detailed series of implications ranging not only from therapeutic practices where doctors have to make choices but to implications in relation to the range of contraceptive methods that will be available and the further implication of the removal of these in relation to its effect on the reduction of the options available to women. But Senator McGuinness said at least it will not extend this far and I have sympathy for her in another way. She did not ask——

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  I do not like to interrupt the Senator but I must tell the Minister that there is a division in the other House. If the Senator wants to continue he may or does he want to wait until the Minister comes back?

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I will wait until the Minister comes back.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  The House will adjourn for 15 minutes.

Sitting suspended at 4.45 p.m. and resumed at 5 p. m.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  The points that I had been making entirely related to the importance of the definition of the term “unborn” and the conclusions that might follow from the absence of a clear definition. I had begun to explain why I would be supporting the amendment in the name of Senator Catherine McGuinness on Fourth Stage because I felt that it at least had the merit of seeking to limit what, as I mentioned, other parties had left dangerously without definition. My use of the word “dangerously” is I feel justified already in speaking of the implications [1136] which can follow and which appear not to move people to want to offer definitions.

There is another side to it on which I would like to expand, because it has not been touched on by any of the other Senators who have spoken on this Stage so far, that follows from one's failure to define the term “unborn”. In a way we are redefining medical practice by a referendum. This is the implication of those who have written in with concern about what will happen if this amendment is passed. They have asked us to consider the implication of changing medical practice by referendum. I will go further. We are not only doing that but we are curtailing the benefits of medical research and therapy by a referendum. There are many practitioners who have said that they respect their colleagues who are able to speak with clarity and take up a position on one side, other colleagues who have chosen to remain silent and other colleagues who are uncertain. They raise the question of the wisdom of deciding by public referendum matters about which they as practitioners are uncertain. They go further and say they have no opportunity to discuss formally among themselves the implications of this wording.

Indeed, it is very interesting to hear from the man who has been quoted — correctly because of the importance of his contribution — on what he has to propose to us. Fergus Meehan, Lecturer in Obstetrics and Gynaecology, University College, Galway, Consultant Obstetrician-Gynaecologist, Regional Hospital, Galway, former Lecturer in Obstetrics and Gynaecology, Oxford University, said:

It is not too late for sanity to prevail. This could be achieved by the establishment of a commission of doctors and lawyers with the possible help of theologians to determine the consequences of the wording of this amendment on the practice of obstetrics. Meanwhile, the legislature could suspend the present Referendum Bill until the findings of the said commission were reported to the Dáil and Seanad.

[1137] Obviously we are not going to do that. We are not using our opportunity to define the words. Frankly, I find it appalling that a party that would gloat they had got the wording they wanted and that they originally promised to the people would not first find an obligation on themselves to stand up in either of these two Houses and justify these words taken simply, in combination, taken in isolation or taken in effect upon existing legislation. I find that truly incredible. I want the Seanad record to record that on this day I again asked questions to which I did not get answers and asked for definitions which were not offered.

I have little else to say on this stage of the debate but I want to say a few words about why I am supporting Senator McGuinness's amendment. It is very difficult for me because I began, as I said on Second Stage, a comprehensive oppositon against the necessity for this amendment at all. I also think that it is in fact rather daft to be affecting certainty. It is worse: it is ignorant, it is a celebration of ignorance to be asserting certainty where no certainty is possible. I do not believe a wording is possible or appropriate in matters of such medical and scientific complexity. It is very difficult for me since the show has passed along this far but I have to recognise on Fourth Stage my responsibilities as a Senator. I must now accept as fact that the Bill has gone through Second Stage and Committee Stage. There is at least the merit to the amendment in the names of Senator McGuinness and Senator Ross that it seeks at least to reduce some of the terrible effects of this wording on the lives of women. As Senator Robinson has said, the wording interpreted in one way will cast a very definite shadow, a whole area of doubt over the availability of certain forms of contraception. This amendment at least will save us from that and for that reason I intend to support it.

The reason I have risen to my feet today on Fourth Stage was to say that it was just too easy on Third Stage for a Senator representing the largest party in this country, the party that gets most of the votes of the public, to stand up and [1138] suggest, as Senator Ryan did, that only a pedant would pose the question of the unborn, that in these matters of medical complication, commonsense would prevail. He has not addressed himself to the question: what about the situation where there are differences? Today the differences are documented for him in the newspapers. People are holding meetings about the implications of this wording. I think it warrants a reply. It demands a reply.

I conclude with this: it is very important for it to be recorded in the future that we were not pursuing words and their etymological meaning for the sake of pedantry. Last week I described five clear cases of doubt that could arise for a medical practitioner. Four of those cases — the fifth was hypothetical — were based on actual choices that doctors had described for me as arising in their practice. The questions needed to be answered in the interest of women and it is just not good enough for this House to sit here at any stage and not give answers when answers are prescribed.

We are at a time when people are unfortunately casting their eyes in a rather scapegoat fashion, at Parliament itself. They are asking if we are worth our money and the rest of it. I really think we are not helping ourselves if we say that we have to keep our heads down and not lift them up as we send a mumbo-jumbo of words off to the public and invite their assent for it. What will follow? Earlier I had no pleasure in quoting from a parish newsletter. Can you imagine the victory newsletters? It will be rather like the editorial in the newspaper that I quoted. It said six months ago:

“The world awaits”. I suppose we will have an editorial saying “The world is grateful”. But will we be grateful — a Legislature that sat there and did not define, a Legislature that allowed a referendum without definition to go to the people but, most importantly, a referendum in which it was demonstrated at every stage that the lives of women were being put into danger and that nobody could feel it encumbent upon them to reply? That to my mind is the debasement of democracy. It is the debasement of Parliament. [1139] It is inviting a scrutiny of ourselves to which we have no moral answer.

Minister of State at the Department of Labour (Mr. G. Birmingham): Information on George. M. Birmingham  Zoom on George. M. Birmingham  I think it is appropriate that at this stage I should indicate an attitude to the amendment. Let me say at the outset that I accept that the amendment proposed in the name of Senator Catherine McGuinness and Senator Shane Ross is an attempt by the Senators to meet objections that have been raised to the present text because of the ambiguity involved in the use of the expression “the unborn”. Senators will be aware from the press statements issued by the Minister for Justice on 21 and 22 April of his efforts to gain acceptance of a clear and positive pro-life formula which would not be open to the very serious defects of the wording now before this House. Attempts have since been made both in the Dáil and this House to try to clarify the ambiguities inherent in the present text, but without success. Realistically, I cannot see that this amendment would have any chance of being accepted by the Dáil. It could result only in further delaying the Bill and this would not be in the public interest. In the circumstances I am not in a position to recommend acceptance of the amendment.

Mr. Hanafin: Information on Des Hanafin  Zoom on Des Hanafin  I would like to make a brief comment on remarks made by Senator Robinson. She repeatedly spoke of the amendment as being sectarian. I think it is right that we should place on record the fact that the largest Protestant denomination, the Church of Ireland, has never used the term “sectarian” to describe the amendment. I quote from a letter to The Irish Times of 3 February 1983 by Mr. Alan Johnston, Church of Ireland Press Officer:

today you state that the three “major Protestant Churches” had called the proposals “sectarian and divisive”. Whatever may have been said or written by Church of Ireland individuals, at no time have the official channels of the Church used these terms.

[1140] I quote from the same letter:

It was in November, and confirmed last week, that we added the comment to the effect that we recognise that the text of the proposed constitutional amendment represented an attempt to take account of the complexity of this subject and of the views expressed by our own and other Churches. We added that we were in particular relieved that the proposed wording acknowledged the right of the unborn, with due regard to the equal right of life of the mother.

This word “sectarian” in my view is an appalling word to use about this measure. The word “sectarian” has been used in recent years in this country to describe the most murderous activity of a bigoted denominational kind. Must we use this word to describe a proposal motivated by concern to protect life rather than destroy it?

Finally, may I add my own conviction that we are speaking about a human right? How can we say that it is sectarian to argue that this right to life belongs to all, not just to some.

Mrs. McGuinness: Information on Catherine McGuinness  Zoom on Catherine McGuinness  I should like to thank in particular Senators Robinson and Michael D. Higgins who have spoken in support of my amendment. They have given a very full survey of the questions which are raised by this amendment and have set out, perhaps better than I could myself, the various issues that are raised by it. I understand very well the difficulties and the heart-searching which Senator Higgins has experienced in coming to the conclusion to support this amendment because they are indeed precisely the same kind of difficulties and heart-seachings that I had myself before I proposed it, because like him, as he well understands, I too, feel that it is a very sad day for this country and a very backward step and a totally wrong thing for us to propose to amend the Constitution in this way at all. It is not the right thing for us to do but nevertheless, as he has pointed out and as I did in my original speech introducing this amendment, in [1141] the context of our responsibility as Senators, as legislators, and indeed as citizens I feel that it is up to us to try to diminish as far as possible the harm and the difficulties which are being caused by the wording proposed.

This was referred to in the statement by the Church of Ireland Standing Committee which Senator Hanafin has not read, the one that came after the one that he read out and which I will refer to later.

It has been made very clear by what has been said that we are totally lacking in a legislative definition of this term “the unborn”. It is not good enough for Senator Eoin Ryan and others to say that there is no problem about it and that it is a piece of pedantry to want to define it any further. It has been quite clear from the public statements made by leading and respected gynaecologists and obstetricians, by leading and respected lawyers and by leading and respected church people that they feel this is totally undefined. There is a total disagreement as to how it is to be defined and, as has been pointed out by Senator Robinson, there is a difference in definition between what appears to be accepted by the proamendment people here and what is legally accepted in other countries such as England and Germany. It is not a question simply of pedantry to say that we are seeking a definition. I join with Senator Higgins in saying it is an absolute disgrace on Report Stage of this Bill, on a matter of crucial importance to every woman in this country, that neither the Fine Gael Party nor the Fianna Fáil Party are prepared even to attempt to make any cogent answer to what I have proposed in my amendment.

The Minister of State, God help him, reads out from a little piece of paper which says that he admits there are defects in the wording. Knowing the Minister of State well, I know he is well aware of the defects and feels them just as much as I do. He is too good a lawyer not to, but he says that there is no purpose in supporting my amendment because it would only have to be returned to the Dáil, that this would result in further delay and would not be in the public interest. How is the Minister of State or whoever [1142] it was who wrote the script for him to know what is in the public interest? I have argued all along, as have many others, that it would be in the public interest that this House — where this Bill has been properly debated, as was stated by Senator Brendan Ryan, in contrast to what happened in the other House — should reject the Bill. It should amend the Bill to try to improve it at least a little. To send it back to the Dáil, even if it only resulted in further delay, would at least show the public that there are problems. It would at least make it clear to them what they are voting for or voting against. Perhaps a change of heart might come over the people in the other House, having read the words of wisdom that came from this House, and they might even change their minds and vote for amending the Bill and carrying a further definition into it.

The Minister of State has admitted that great efforts have been made to reach a different wording from what is proposed in the Bill. Surely by delaying the matter for a while we might give them a chance to see the light as it were and to accept a wording like this. I cannot see how the Minister can argue that it would not be in the public interest to have further thought about a matter of such crucial importance. It has become more and more clear at each stage of the debate that no one is prepared to define these words properly or to give us any reasonable argument about how they would affect the law as it stands, apart from pious ejaculations, if I might put it that way, saying that it will not affect matters as they stand, that it will not change anything about contraception or about present medical practice while, at the same time, producing article after article by their own legal experts to show precisely how the law can be changed if this wording is being brought in and how people's lives can be made a misery by some such change.

On the other side we have Senator Hanafin's contribution. To give Senator Eoin Ryan his due last week he made some attempt to talk about the definition problems even if he did not deal with them properly. Senator Hanafin confined [1143] himself to dealing with the word “sectarian” and while it is an important issue it is not in my view the crucial issue in the matter. He is perfectly justified in quoting Alan Johnston in saying that the Church of Ireland did not use the word “sectarian”. The Church of Ireland did not use the word “sectarian” because perhaps it did not want to create a divisive approach to this matter. It wanted to try to deal with the matter in a rational way but that does not take away — and Senator Hanafin is trying to obscure this — from the fact that in every one of their statements the Church of Ireland stated firmly that they were totally opposed to using the Constitution in this way to try to deal with complex moral and social issues. They repeated that before the wording came in.

I am sorry that in the Dáil Fine Gael Deputy John Kelly suggested that if only the Protestant churches had spoken out at an earlier stage this whole thing might have been done away with. They spoke out before any wording was suggested. They said they thought this was the wrong way of dealing with it, that it would not solve the human problem and that it could create legal difficulties. When the first wording was issued they acknowledged that some effort had been made to cope with their difficulties which was fair enough, but they continued to assert that this was the wrong way of handling the matter and that no amendment would be preferable to any wording.

When the Fine Gael wording came out they again studied it. I can assure the Seanad, because I took part in these studies myself; they spent many hours and listened to much evidence from their own medical advisers, their own legal advisers and from their own theological advisers. They did not just look at it and say “We will say this and we will say that”. They sat and consulted and discussed the matter for long hours before they issued any statement and when they issued the statement on the Fine Gael wording they said they felt that this wording was preferable. This is the statement that Senator Hanafin does not appear to have read. They said the Fine Gael wording was preferable [1144] in that it left a degree of freedom to the Oireachtas which they felt was proper order in a democracy. While they accepted that an effort was made to meet their points in the Fianna Fáil wording, when the second wording came out they felt that it went further towards meeting their points but, again, they reiterated that no amendment would be better than any amendment because they did not see that it would deal with the human situation. They did not see that it would improve the legal position and said it was the wrong way of dealing with a complex moral and social issued.

To debate whether or not they use the word “sectarian” is the sort of pedantry of which Senator Higgins is being accused. It is not so much the use of the word “sectarian” as the fact that I suppose this is the hung church that is being referred to, the church that is not such a small minority and not a majority. The hung church has totally opposed this amendment on basic principles and when it dealt with the wording it was dealing with the wording in the same sense as I am dealing with it today and as Senator Robinson and Senator Higgins are dealing with it. They are trying to use their responsibility as citizens. This is precisely what they said in their statement that as responsible citizens they had to comment on what wording was put forward. Whether they called it “sectarian” or not is a quibble.

I will say a few words about the position of women in this situation. Senator Robinson has very well covered in the quotation she used from Dr. Andrew Rynne and from the briefing document from the Anti-Amendment Campaign the actual medical facts about the loss of fertilised ova by natural means and the unreality of thinking of the fertilised ovum as being a human life which can be provided with legal protection and constitutional protection.

What has, perhaps, been passed over too easily is the number of women who are actually involved in the threat to methods of family planning. This is something that was referred to by the Minister for Health in his contribution in the other House. He had obviously done careful [1145] research in his Department to find out the kind of numbers that were involved. As was stated in the document that Senator Robinson referred to from the anti-amendment campaign, in 1981 alone 2,500 Irish women were fitted with intra-uterine devices. These are the women who, largely speaking, have had children already; they are women who are moving into middle years and who cannot take chemical medical contraceptives, with whom the pill is contra-indicated because of high blood pressure, because of age and so on. At the same time, they are the very women who are bringing up children. If we take away this safe, cheap and easy method of contraception from them they are the ones who will get unwanted, unplanned pregnancies, and pregnancies in later years of their fertility when the chances of their having children with Down's syndrome or other defects are very much higher than they would be when they have their families in their younger years.

If they become pregnant at this stage their fears are more real and more realistically based than the fears of a younger woman. Therefore, if we take away, through a wide definition of “unborn,” the kind of contraception that is available to them we are pushing ourselves into a situation where they will be the people who may very well be trying to seek abortions in England and who will add to the abortion trail, making for more abortions rather than fewer.

The same thing applies to the low dose pill where this pill is prescribed precisely because other pills have a risk of creating blood clots and so on in older women. The same argument applies there. I suggest that by accepting my amendment — I cannot see how in principle it should really worry the legislators in this House — we will at least ensure that these women are medically safeguarded. Certainly, if members of the Roman Catholic Church feel that they should not use these methods of contraception because they believe they attack the fertilised ovum and that the fertilised ovum ought not to be attacked in this way, nobody is forcing them to do so. This is part of the whole extraordinary rationale of this amendment: [1146] the idea that we must use the Constitution, we must use the legal system, we must use the force of the State to make people do things which maybe in the conscience of some people — if it is in their conscience, nobody is forcing them to go outside their conscience; nobody is making them have an abortion; nobody is forcing them to use a type of contraception which they do not like. On the other hand, the pro-amendment people are envisaging forcing other people's consciences into their mould. This is one of the difficulties I am trying to get out of by my amendment.

Senator Brendan Ryan said that the constitutional crusade is dead and it is replaced by a dangerous crusade. Indeed, I would absolutely agree with him there. When he says that I have touched the Tory in him, knowing Senator Brendan Ryan, I think I have achieved an enormous amount today in this House. If I can achieve that surely Senators can pass my amendment. It would not be more of a miracle than touching the Tory in Senator Brendan Ryan. I really feel I can congratulate myself on this, but I feel that he is being a little unfair when he says that I am putting forward the theological perceptions of my own Church. As he said, my Church is a “hung Church” on this situation. They have not issued statements about their theological perceptions about when life begins nor have they defined it. They have left that to the individual case, medical advice and so on. Certainly a number of Church of Ireland gynaecologists, including the Professor of Obstetrics and Gynaecology in the College of Surgeons, Dr. Browne, would say that he felt that human life began at implantation but that is no more than me speaking as a Protestant. It is not the voice of the Church. Therefore, it is not correct to say that I am, as it were, putting in a Protestant sectarian amendment to meet a Catholic sectarian wording. I have backing in the legal system of other countries and in the carefully argued statement of the English legal authorities about the morning-after pill suggesting that the moment of implantation is the time to choose to decide if an abortion is taking place. Certainly there [1147] has been no statement by any Church of Ireland theologian saying that, categorically, implantation is the time when life begins, or anything of that sort.

When Senator Brendan Ryan suggests that if my amendment is accepted it will definitely lead to the defeat of the referendum in the country, that was not my original idea. Perhaps it might not be a bad thing. If we pass this amendment and the referendum is put with my wording to the country and the original pro-amendment people come out against it, it will show very clearly where they stand as opposed to where the Legislature stands. That would be important from the point of view of the voters.

I thank Senator Higgins greatly for his support of my point of view and my amendment, particularly as I know the philosophical difficulties which he experiences in doing so. I was very stuck by the news letter which he read out and the occasion at which it was produced, at a Confirmation ceremony. I thought perhaps with the departure from the scene of Bishop Lucey of Cork we had ceased to see Confirmations being used as quasi-political platforms. Obviously I was wrong.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  In fairness, it was the Sunday after the Confirmation.

Mrs. McGuinness: Information on Catherine McGuinness  Zoom on Catherine McGuinness  The Sunday after the Confirmation, I am sorry. I have teenage children of my own, and I know a great many other teenage children who are their friends. Children who never thought about the issue of abortion are now discussing it in grim detail, going around with pro and anti badges, discussing the whole situation, discussing it in their school classes, discussing it in all sorts of places. I suggest, and I have as good an authority as Fr. Fergal O'Connor of Ally to back me up, that far more people consider abortion as an acceptable alternative since this debate started than ever would have beforehand.

There is one issue I would like to deal with here before I conclude. It has been suggested to me that if this amendment is put to the House and defeated it will [1148] give an indication to the Supreme Court that they should interpret the word “unborn” to mean from the moment of conception and that I will have damaged my cause as it were by putting forward such an amendment and allowing it to be defeated. I recognise the sincerity of the people who are putting this to me but I cannot really agree to saying that I will not seek a vote for two reasons. First of all, the courts are not, in fact, bound by what we say in this House or in the other House when debating legislation. They are bound by the actual wording and they must interpret the wording, not what was the intention behind the wording or what people have said in the debates about the wording. They must interpret the actual wording. This is where I think they will have a major difficulty. Secondly, as I said at the beginning one of the purposes of my amendment is to try to make it clear to the people who will vote, what exactly they will vote for.

There has been a great deal of talk about appeal to democracy by those people who want the referendum. We keep on hearing it said, “well what is wrong with putting it to the people and letting the people decide.” When we say “put it to the people” what exactly do we mean by that? Do we mean that the people should have a clear understanding of the issues involved, that they should consider these issues carefully and that they should then cast their votes in full understanding of what they are voting for or against? Do we mean that people who have been flooded with propaganda of the type referred to at the Sunday after Confirmation in Kiltoghert or the great deal of other propaganda of the sort that has been referred to in earlier debates, propaganda which most insidiously sews the idea that all who oppose the constitutional amendment are baby murderers?

Let us face it, that is the kind of propaganda that has been put around, that these people should be swept into the polling booths by sermons and by leaflets in their churches and that they should enact a constitutional amendment, the implications of which they do not understand at all. It is very clear that they do [1149] not understand it, because whenever we have what are called box pop interviews on the radio or on the televisions with ordinary people in the street, it emerges very clearly that they have not a clue as to what it is about. I took part in a television programme which put forward the different wordings and the constitutional amendment to various people in the street — it was run by the religious affairs department of RTE — and it was very clear from the answers that they got that people did not know what it was about or what they were voting for. One of the ladies interviewed said: “Well, what I do not understand is why do they have to go away to England to have this; why cannot we do it in Ireland?” Obviously she was a lady who believed in buy-Irish goods, have Irish abortion and do not send these things abroad. If a perfectly ordinary woman could misunderstand the situations to that extent, what are the voters going to vote about? I do not think it is democracy in any real sense if, say, you throw out to the people something that the Government party will not define, that Fianna Fáil will not define, that nobody will define. When we come into this House, ask these questions again and again and do not get answers, how are the ordinary people supposed to understand it?

My amendment is aimed at making the situation clearer. If my amendment is accepted the people will understand better what right to life they are being asked to preserve. If it is rejected then, at least, we can say clearly to the people, who will vote that what the pro-amendment people are asking them to vote for is not a continuation of the law as it stands, not a continuation of medical practices as it stands, not a continuation of the present methods of family planning but for a change in the law which will make these kinds of things impossible, which will [1150] make post-rape treatment impossible, which will make various forms of contraception impossible, at least which will open the doors to doing this.

I feel that any answers that we have got about this wording have been simply trying to diminish the legal, medical, social and other difficulties that are inherent in it. I would go back to our responsibility as legislators and I would suggest that the two major parties in this House, today in particular, when faced with the question: “Do you define this thing in a way that is medically and legally understandable or do you not?” have simply opted out of their responsibility by not giving any real answers to why they should oppose this amendment, why they should accept it or what their attitude to it is. They stand condemned before the people of this country as totally irresponsible as legislators when they sit back and say nothing except get up and mumble about the use of the word “sectarian” or the fact that this will delay the matter and that will not be in the public interest. That is why I intend to press for a vote on this amendment and to let it be seen who precisely stands for what in this debate.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  Is there not to be a contribution from the Minister of State?

Mr. G. Birmingham: Information on George. M. Birmingham  Zoom on George. M. Birmingham  I have spoken.

Mrs. McGuinness: Information on Catherine McGuinness  Zoom on Catherine McGuinness  It was so brief the Senator missed it.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  I missed it on the monitor.

Cuireadh an Cheist: “Go ndéanfar an leasú”.

Question put: “That the amendment be made”.

[1151]Bulbulia, Katharine.
Conway, Timmy.
Harte,John.
Higgins, Michael D.
Howlin, Brendan.
[1152]McAuliffe-Ennis, Helena.
McGuinness, Catherine I. B.
Magner, Pat.
Robinson, Mary T. W.
Ross, Shane P. N.

Cassidy, Donie.
de Brún, Séamus.
Ellis, John.
Fallon, Seán.
Fitzsimons, Jack.
Hanafin, Des.
Hillery, Brian.
Honan, Tras.
Hussey, Thomas.
Kiely, Rory.
Lanigan, Mick.
Lynch, Michael.
Mullooly, Brian.
O'Toole, Martin J.
Ryan, Brendan.
Ryan, Eoin.
Ryan, William.
Smith, Michael.

Faisnéiseadh go rabhthas tar éis diúitú don leasú.

Amendment declared lost.

Cuireadh an díospóireacht ar athló.

Debate adjourned.


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