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
In introducing this amendment I will do the same as I did on the previous one, introduce it with a brief speech and retain the right of reply so that I may deal with any points that arise during the debate. I am glad the Minister is present. I realise that other business prevented him being here earlier this afternoon but, perhaps, as has been suggested by Senator Higgins, myself and other Members, now that the Minister is here we may get some answers to the questions we have been raising. My second amendment seeks to delete the word “equal” before “rights” and put in “prior”. This may seem to be in a sense a negation of suggesting the right to life of the unborn in saying that the mother should have a prior right but  when I explain what I have in mind it will become clear that in no way am I trying to say that the unborn do not have rights or that their rights would be overruled in all cases. There are cases, and these cases do arise despite the efforts of all to pretend that they are non-existent or can be ignored, where there is a definite conflict as to actual life between the mother and the foetus. Saying we have equal rights is medically difficult or impossible to decide and legally speaking is unjustifiable. If we have people with equal rights how do we decide whether we should preserve the life of the mother or let the mother die and preserve the life of the foetus?
It is important that we should sort out this question. I would consider that there are real worries in this area about the danger to life of mothers. Last week on Committee Stage, Senator Eoin Ryan said virtually that no one could possibly imagine a doctor letting a mother die because of a legal quibble or because of the amendment. I have a lot of sympathy with what Senator Eoin Ryan said and on a practical level he is probably right but that is not to say that it is not asking doctors simply to act outside the law, rather asking them to act in a way that they see as humane but do not see as legal. This, again, is the question of an Irish solution to an Irish question, like in the area of contraception, where we bring in a law which is supposed to say one thing, and we all whisper behind our hands, smile and say that is not the way it will work out in practice; we will not really do this. As a lawyer I have great objections to this procedure where we bring in a law and at the same time say to people that they do not need to take too much notice of that; we will go on in our own old way whether it is legal or not. Jurisprudentially speaking we want a law to be accepted by people, to be respected by people so that people will think it is their duty to obey the law, not their humane duty to get around the law. It is a very bad precedent to put in front of the public that we are saying we will create a law but we know perfectly well, of course, those of us who are in the know, that this law will not necessarily be  obeyed. Then we say to people, it is evil to evade taxes; it is evil to park a car in the wrong place. How can we expect people to respect the law if we are setting the example as legislators and saying we bring in one thing but, of course, we know that something else will happen. By bringing in this amendment I am trying to make people face up to the reality of things, that there are situations where we decide between the life of the mother and the life of the foetus. That includes what are known as the Catholic exceptions of ectopic pregnancy and uterine cancer because these, as I will point out later, are not legal exceptions, they are simply theological exceptions.
Despite what Senator Eoin Ryan says that no doctor will stand aside, that commonsense will prevail and no doctor will allow a mother to die because of the amendment, it is nevertheless true that many leading doctors, including those quoted by Senator Higgins and myself earlier, have expressed doubts about the legality of present practice if they are faced with this amendment. Among these is the Master of the Rotunda Hospital, the oldest and one of the leading maternity hospitals here. Surely, we must pause to question what we are doing if the Master of the Rotunda is prepared to stand up and say he would have grave doubts about the things that are practised in his hospital now if the constitutional amendment is passed. These are the cases I referred to last week where mothers are suffering from acute high blood pressure and kidney disease, where one has to decide at about the twenty-fourth week of the pregnancy whether to remove the foetus by caesarean section and thereby ensure the survival of the mother while putting the foetus at risk; while it may survive, it may not survive, on the other hand, making sure of the survival of the foetus and leaving the pregnancy carry on virtually condemning the mother to death.
I would point out that when we are talking in terms of hospitals, maternity hospitals and what is done in hospitals, we are not just dealing with leading obstetricians, leading gynaecologists, family doctors and so on: we are dealing  with hospital administrators and nurses. If we look into this we will find that hospital administrators and nurses here exercise a great deal of power in hospitals. One has only to look at the situation of the common contract which was brought in by the Department of Health and see what has happened in the what I would describe as Catholic hospitals where we have the position of leading respected doctors going along in St. Vincent's Hospital and saying: “I want to sign the common contract”. They are told by the administration of the hospital: “You may not sign this contract because Archbishop Ryan says you may not”. I have raised this important question in the House before. Hospital administration is very heavily influenced by considerations other than the good of the patient, considerations of what they see as being morality. The fact that one's doctor says one should have such and such an operation does not necessarily mean that one will actually get it in many Irish hospitals. Very often the reason why one does not get it is the reason of other people's morality, not medical needs or the person's own conscience but what other people say and the other people are not necessarily the person's doctors.
The same thing applies with nurses. Several cases have come to my attention, and the attention of one of the Ministers of State in the Minister's Department, where a woman's doctor recommended say a hysterectomy and she was sent to a hospital to have that carried out. Her doctor may be clear as to what she needs and she may be clear as to what she needs but the nurses in the hospital have said:
If we bring in this Constitutional amendment as worded we not only create difficulties for the doctor but we also put it into the hands of hospital administrators and nurses who feel that way to say: “All right, you may think doctor that this lady's pregnancy should be terminated but we think that this is unconstitutional; we think that this is illegal and, therefore,  we are not going to do it for you, or we are not going to give you a theatre to do it, or we are not going to facilitate you” and so on. It is essential that we make clear in the legislation we pass that in a situation where the actual life of the mother is threatened she has a greater right to life than the foetus. It may be suggested that I am arguing theologically wrongly but I do not think I am arguing socially wrongly. Apart from the women, I ask any of the male Members of this House, most of whom are husbands and fathers, whether they would actually stand by in this situation and say: “I want my wife to die”. I do not believe for one instant they would and I have talked to quite a number of them about it. Members who have very strongly justified feelings about abortion in this situation would not press the matter saying: “Kill my wife”. That is what we are talking about. It does not, perhaps, occur in an enormous number of cases but if it is one's wife it does not matter, or one's mother it does not matter if it is one in a thousand or one in ten thousand: she is still a person.
In all the speeches on this subject it has been presumed that the mother's life will be saved. It is presumed that the law will not be changed. It is presumed that we can go on dealing with ectopic pregnancies, kidney disease, high blood pressure and cancer in the way we have done it all along but this is a very big presumption to make. I am suggesting we should make it quite clear that that is what we want, not that we should just leave it hopefully and say that perhaps the courts will decide this or that. The courts are there to interpret the wording that is put before them. They are not there to listen to Senator Eoin Ryan who has said in the debate that any doctor is bound to preserve the life of the mother, or to listen to any one else who says the law will not be changed. They are there to interpret the wording as it is put in front of them in the light of legal argument put to them in a particular case. The legal argument put to them has to be based on the actual interpretation of the wording. The legal argument cannot go into saying that the intention of so and so was this or the  intention of so and so was that. If we are not willing to he quite clear about this. are we just pretending to ourselves that we are going to say in this situation the mother's life will be saved or are we really envisaging a situation where we are going to say, well, perhaps, the mother's life will be saved and, perhaps, it will not be saved? If that is what we want, that is what we should state clearly.
When the Taoiseach expressed fears about this and said that the enactment of the present wording before the House would, possibly, endanger the lives of mothers it is obvious that he was quite sincere in saying this. However he was attacked fiercely in particular by the doctors who are attached to the pro-amendment group. They said they were absolutely convinced that what they were doing was not at present illegal. They said they were absolutely convinced they would not have to change their own practice and so on but I would point out first of all that these doctors are not legal experts but they may be medical experts. They know perfectly well when they should be preserving the life of their patient, and they are doing so, but they are not legal experts and they do not know whether what they are doing or what they would do under this amendment would be legal or not. Secondly, virtually the entire of their argument is based on this double-effect theory which may well be theologically sound but certainly has absolutely no effect in ordinary civil law. It does not mean any more than if I said when I shot a man, I really did not mean to shoot him, the effect I was intending was to create a nice air hole in his chest. That does not get me off the hook of accepting the normal consequences of what I have done. Equally so, if the normal foreseeable consequences of what one has done is to kill the foetus than one must be accepted as intending that.
One cannot say, because of the theory of double-effect, I did not intend it. As far as that is concerned to an ordinary person, as opposed to a theologian or a doctor who is steeped in theology, this does not really make ordinary sense. If  one wants to see what it looks like to, perhaps, a sort of cynical eye those Members who read this sort of magazine or might try reading this sort of magazine should try reading the current copy of In Dublin. In that publication Nell McCafferty has written an article about this kind of theory saying, “Ok, if you have an ectopic pregnancy so you remove the fallopian tube; you do not actually touch the foetus so you cannot be said to be killing the foetus.” But, of course, you are leaving the fallopian tube on one side and letting the foetus struggle to death in it. Of course, that is not abortion because one has not actually killed the foetus. I cannot see, any more than she or most ordinary people can see, that that is not an exception to the rule about abortion. The double-effect theory seems like that to those of us who are not surrounded by clouds of arcane theological casuistry.
These doctors may very well be wrong in law. They probably are wrong in law. I am suggesting that by accepting this amendment we should make certain that in these cases where medical necessity requires that the life of one or the other, the mother or the foetus, has to be chosen we should make sure it is the mother's life that is chosen. I do so for the reasons Senator Robinson mentioned earlier this afternoon. Are we to place the life of the fertilised ovum at the very beginning of pregnancy in the fallopian tube as being of greater value than the life of the mature woman? I do so also for the social reason that very often the mother we are talking about is a mother who already has children of her own who need a mother's care and would be deprived of their mother if she was allowed to die for this kind of reason.
It will, obviously, be said that I am scaremongering, as was said of the Taoiseach, that I am creating a problem that does not exist, that I am exaggerating about what is going on, but I do not think I am. The idea in law of saying that X and Y have equal rights is something that is very difficult to litigate. How can a court decide between X and Y who have equal rights? What can they do but stand aside and say well, we have to leave things happen as they are. How can they say  one must take this action or one must take that action if they both have equal rights? On this account I am suggesting that if we replace the word “equal” with the word “prior” we are still talking in terms of the actual life of the mother. We are not suggesting by this wording that we are taking into account all sorts of other factors; we are just talking in terms of life. We are deciding in these cases where there has to be a choice that the choice should fall in favour of the mother. This has been tacitly or openly accepted as normal practice and as being desirable by both sides of the House and by large numbers of the medical profession. I am simply suggesting that we should put this into law rather than leave this definitional gap again, leaving the whole thing as an area of doubt.
Mr. M. Higgins: I should like to express the general reservation I expressed about supporting the previous amendment in the names of Senators McGuinness and Ross. My reservation is that I find it very difficult to justify supporting particular changes in wording when I have already said I believe that in this matter it is almost impossible to draft a form of wording that would be acceptable. From the very beginning I opposed the referendum on this matter on the basis that I felt it was not socially justified, was not requested by a representative section of society and because of its dangers. I want to list that general reservation again but I want quickly to assure Senator McGuinness that again on this occasion it is my intention to support her amendment. I will give some of my reasons for it.
On Committee Stage of the debate I specifically stated cases that might arise in which a decision would have to be made. I sought at that stage of discussion of the Bill assurances that no interpretation of any word, or combination of words, of the measure proposed or, indeed, its effect on any existing legislation or its effect in practice, would be such as would militate against the lives of women. I did not get an answer to that. When I say that I do so with the greatest respect for a Senator present. Senator  Eoin Ryan who made an attempt to answer me. I should like to draw the attention of the House again to a letter published this morning in The Irish Times, May 25 from Fergus P. Meehan, Consultant Obstetrician-Gynaecologist, Regional Hospital, Galway, Lecturer in Obstetrics and Gynacology, University College, Galway, and sometime lecturer in obstetrics and gynaecology at Oxford University. In that letter he lists the situations I listed last week. My reason for supporting Senator McGuinness on Report Stage is that I feel at least her amendment goes some way to removing the atmosphere of fear to which testament is now given by the letter of Mr. Meehan. That is asserted by the fact that obstetricians and gynaecologists from all over the country have decided to meet to discuss the implications of the wording for their practice. I suggest that one piece I have not quoted from Mr. Meehan's letter is extremely helpful in making a decision on whether or not Senator McGuinness' motion should be supported. He said:
I am also perturbed by the impression which might have been given following public statements by eminent colleagues that the present practice of obstetrics will be unchanged by this amendment. The very nature of the wording of the amendment ensures that that cannot be. No other country has considered giving rights to the unborn such as are proposed. That is not to say we are wrong; rather must it be considered as original thinking which could be wrong. In giving equal rights to life to the unborn, we will embark on a policy that has never been adopted by any country in the world to date and there must be consequences of that action. Philosophers and moral theologians from the dawning of Christianity have not been so brash, nor has the Catholic Church, in its wisdom, throughout its existence, expected us to accept equal rights for the unborn.
I ask the question “is the right to life  of the mother to be jeopardised in the interests of an 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 law first and medicine thereafter?
He invites doctors to stand apart and consider the consequences of the new wording. Let us be perfectly clear here. Even if, for example, a doubt was sown in the mind of a doctor it may delay treatment for a woman. At its wildest it may delay treatment that would have an effect on her life and an effect on her future health. I use that last word very carefully.
Equally, apart from the question of delay, there is the whole question of the structure of interpretation if we do not put in the word as suggested by Senator McGuinness. Who is, for example, to give the definitional interpretation in a maternity ward in a hospital? Will the master of the hospital interpret these strange words for everybody practising in the hospital? Will some authority outside the hospital convey to the practitioners how these words are to be interpreted? I ask myself as a member of a health board, how will the health boards of the country interpret these forms of words and how will they communicate that interpretation to those who will work in the hospitals under contract? What will be the interpretation of that? It is very clear. Dr. Meehan 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. To state that this will not change the practice of obstetrics is foolhardy. Some colleagues say it will not and I say it may change our practice and not because we wish to have it changed but because the law states we must change.
... this new proposed amendment. There could be a change in the management, or delay in the treatment, of a patient to her detriment. The public have a right to be informed and doctors and lawyers have a duty to provide this information. Politicians are no less ignorant of the facts, as evidenced by their behaviour to date on this issue. Most important, from the patient's point of view, if this amendment is accepted, it will result
The proposed amendment could result in conscientious doctors in this country being forced to practice in a fashion which is different from the accepted medical practice pertaining to the treatment of certain conditions throughout the world at the present time.
He moves on and invites us to give this matter further thought. These are not my concerns; these are the concerns of the practitioner who will have to live with these words if passed. Senator McGuinness is seeking to at least remove some of the cloud of doubt that will surround the position of women after the passing of this amendment. It is just not good enough to simply say, as was said on Third Stage, “I have every confidence that common sense will prevail”. Women are entitled to more than speculation as to the future of common sense in a hospital. At present the medical community are themselves anxious to discuss these matters and are very careful as to what they assert as certain, and we are, remember, trying to control medical practice by referendum. Whether we could do it by legislation is arguable but at least there is a merit in Senator McGuinness's amendment in that we are invited this evening to consider the implications and seek to change the wording, as she does, by identifying and reducing  somewhat the uncertainty that may exist in relation to the position of the mother. Another thing which her amendment will do is remove the spectre of doubt, recrimination and uncertainty from the obstetricians and gynaecologists. If a person, like Mr. Meehan operating according to the Hippocratic Oath and within the Declaration of Geneva, 1948, anxiously trying his best to work and live in the interest of his patients, is forced to write to the newspapers to ask us to leave this situation alone and we say that we know better, what then happens if this wording is passed unamended? I repeat my question: how will health boards interpret it? Who will interpret it within the wards of hospitals? What will be the relationship, for example, between somebody who is in charge of a department who takes one interpretation and a doctor who takes another? Will a doctor who takes one interpretation find himself competing for the loyalty of the nursing staff? What about the different views of an administration who might move towards one interpretation or another? We are creating confusion where we had the ethical sense and the judgment of the medical profession. We are moving into an area where professional ethical judgment was being exercised with tremendous humanity from all the evidence available to us, and we are choosing to invite the public in a referendum to express an opinion that we are making superior to that.
From the contributions so far it seems unlikely that other Senators will refer to the Irish text, but I will do so. The day that this goes on a piece of paper to be put before the citizens of Ireland we will not only have made a mockery of women's rights but we will have abused the Irish language in the process. I will quote the Irish language version:
We did not get a definition last week of the “unborn” and I noticed no linguist springing to his or her feet to tell me how the “mbeo gan breith” might be more easily defined than by the English “unborn”.
agus, ag féachaint go cui do chomhcheart na máthar chun a beatha, ráthaíonn sé gan cur isteach lena dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.
Mr. M. Higgins: Better people than I have expressed what the medical consequences will be. We cannot say we did not know them before we vote on Senator McGuinness's amendment. They are in the papers; they are before all of us but there is a vagueness in the Irish version that is insulting to the language itself. It is ill-defined, badly worded.
Is it plural? Is it singular? What is it? Is it eggs in one form or another? Through all of this we will seek to give an equal right to a woman who may be experiencing difficulties. Despite my general philosophical reservations for voting for any reformulation of this badly drafted exercise, for that alone I will support Senator McGuinness's amendment in this case.
Another side of it which is appalling is that it goes on to suggest that it will balance and arbitrate between all of these unexpressed, unexplained rights with its laws. What is meant by that? The amendment invites us to put in one clear word which would at least remove some uncertainty from the position of mothers and will remove the ghost of competing interpretations and recriminations from the medical profession. It invites us, on page 4, line 30, Schedule, part II, to delete “equal” and substitute “prior”.
I ask those of us who are fathers of children and who have lived with and  loved women, how can you accept in 1983 a mish-mash of words like that, and say at the end of the day as the woman goes off to the maternity hospital in any one of four or five cases of difficulty to which no answer is forthcoming, that common sense will prevail? We have gone to the trouble of discussing in both of these Houses a porridge of words and incurred the cost of having a referendum. We had all this so that we could feel that little bit more uncertain and so that the doctors could feel uncertain as women went in to maternity wards.
It is worse than that, and I insist on extending it to its logical absurdity. What of the position of, for example, a woman who needs treatment for a form of cancer and indicates that she will not have another pregnancy? Does she then negotiate this with her husband? What if he says “no”? What if anything goes wrong with her life? Of course, the “mbeo gan breith” must be taken into account. I find it in 1983 in the month of May appalling that we are not willing at least to grant that little mitigation represented in Senator McGuinness's and Senator Ross's amendment of the horrific uncertainty into which we are putting women and the medical profession.
I must say that perhaps I will get a better answer tonight. I do not want people to say to me: “In my hospital nothing will change”. I repeat my question of last week: does this mean that some people are writing to the papers to say that they will put a flag up over the hospital so that mothers will know that no matter how the law changes things in this hospital will be by the decision of the master? Does it mean that the practices will change in accordance with the new wording? Does it mean that, no matter how the wording is changed, some other practices will prevail and people will break the law? Does it mean that if they decide on all this subversive activity that the head of the hospital will then invite everybody who works in the ward to join him or her in this great subversion of the law? Will we say, as I suspect, “We went through all this in the Dáil and Seanad and in the referendum and you and I  know that, despite the fact that we had to do it, things will not change”? I believe that that is the most subversive view of all in 1983. Worse than that, it is not only subverting the parliamentary process in this country at a delicate time. It is profoundly anti-woman. The proposed amendment says:
Agus a shuíomh — there is another word. “A shuíomh” is translated clearly to any linguist as seeking to establish. I worry about this interpretation in Irish. Is it, for example, taking an existing right of a woman and suggesting that it has been made tenuous and has to be re-established after the establishment of some right to the “mbeo gan breith” that has not been defined? That is the kind of rubbish that we are putting before the people in a referendum.
So when all the indefinites are put up in the sky as by a clown in a circus we will keep hoping that none of the balls will fall down to the ground. Senator McGuinness used a very good phrase in moving this amendment. She referred to arcane theological casuistry. When the Wilkes, husband and wife, re-visited here to give a kind of additional shot in the arm to the pro-life amendment campaign, they decided that the double effect was a marvellous thing; that it would answer the question of the danger to the  mother. So you had little groups all over the country, some attended by my wife who is a mother, being told: “You do not have to worry because of the double effect, you know”. We talked at night about this double effect. To somebody representing a university constituency in this House it is a disgraceful day when out-of-date, old teaching, which is correctly described as theological casuistry, becomes a principle of justification in legislation. We live in a world that is defined by our inter-actions with each other and the basis of our legislation must be social, but in 1983 we are reaching backwards and rattling out our old ghosts, old, long neglected, theological dances on the heads of pins and suggesting that these become the basis for our legislation.
The alternative is there. I know there will be problems if this amendment in favour of the prior rights of the mother is carried. Despite any religious beliefs of any Members of this House I suggest that the evidence is all round us in relation to mothers in difficulty that we should use a social basis for our legislation. If this changes the existing situation — and I believe that it would and that Senator McGuinness would acknowledge that it would — I am willing to make that change if it goes somewhat in the other direction. There is the other case that perhaps all the dancing on the head of a pin could take place after this amendment was carried, and people could say: “Well, I do not have to because I believe in this, that or the other”. That would be better than if the wording goes through in its present form.
In conclusion, in a way I feel a little hollow because I am supporting an amendment to put in a word, to delete the word “equal” and substitute the word “prior”. In my support there is a desperation that I have had in this House for two weeks now at questions that have been supported by a prominent obstetrician-gynaecologist and that nobody in this House will answer. These questions are not pedantic or academic, and they affect the security at least as a minimum of women who go in difficulties into maternity wards. I will thank Senator McGuinness then that when the House  disgraces itself, when the larger parties will not give definitions or answer the fears of women, at least in the amendment put down by her and Senator Ross we would have a minimum of security, the damage would be lessened and the medical profession would not be dictated to.
In a sensitive matter which obstetricians and gynaecologists debated, we are seeking to look at what some will call the most democratic expression that you can get. We are talking about the right to life, but is it all so simple that you can with a stroke of a pen decide on what will take place in a maternity ward? The medical profession have begged us to reconsider. I repeat again the words in the last paragraph of Mr. Meehan's letter:
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 asks us to think again about the implications of what we do at present for what would be possible in the future by way of treatment and we decide at our peril to blunder on. I repeat, as a challenge, that anybody who does not answer precisely the fears of women in this regard will in voting against this amendment be voting in an anti-woman way.
Minister for Justice (Mr. Noonan,: Limerick East): The positive statement in the proposed amendment acknowledges the right to life of the unborn. There is already in the Constitution a right to life of the citizen. If it were left at that it would be up to the Supreme Court at some subsequent stage to balance the right to life which is being proposed to be given to the unborn with the right to life of the citizen. There would be a clear conflict in this situation. A subsidiary statement is necessary at least to allow current medical practice to continue. My views on this have been made clear previously. I believed it was possible to do this without involving matters of principle by a clear, pragmatic statement that  interventions necessary to save a mother's life would not be unlawful.
It is very easy to be misunderstood on an issue like this. I am very well aware of the fact that people's thinking in this respect can be influenced by the fact that they believe that the right to life in both cases is intrinsically equal. It is no part of the case that I am making that the wording should express a different principle. In my view it does not need to do so, but I continue to believe that, if it expresses with clarity what its sponsors intended to mean, then, without purporting to express any principle on the matter it should have acknowledged that in certain circumstances certain forms of intervention would not be unlawful — that is to say, that the law of the State would not intervene to stop such interventions. That would involve no statement to basic principle as to the respective values of the two lives and therefore no conflict with basic principles which very many people hold as sacred. It is so well known as scarcely to merit repeating that there are many things which in the Judaeo-Christian tradition have been universally regarded as wrong but which, for good and sufficient reasons, the law of the State does not declare to be unlawful.
I put that proposition and I think the House knows the results of that. The sponsors of the amendment before us have a duty to answer the questions I raised with the Opposition spokesman on Justice, the former Minister for Health in Dáil Éireann. If it is not to be left entirely to the Supreme Court to balance without guidance the existing right to life of the citizen with the right to life now being proposed in the Constitution — the right to life of the unborn — then there is an obligation on the sponsors of this form of wording to explain clearly why the exception was not made with clarity if the subsidiary statement is meant to be an exception.  If it is simply a case where a court will decide to balance the rights in a subsequent interpretation, then why say “with due regard to the equal right to life of the mother”et cetera? There must be some reason for putting in the phrase and not simply leaving “the right to life of the unborn” there to be interpreted in balance with the right to life existing in the Constitution for the citizen. If it is there, it is there for a purpose and it means something.
I would ask the main Opposition party who now are the de facto sponsors of this form of wording, to explain exactly how the rights are balanced in that subsidiary phrase. I made the point previously and I will repeat it, that it is possible to put in a subsidiary phrase which says that where medical intervention is necessary to save the life of an expectant mother, alternatively to prevent the death of an expectant mother that that should not be unlawful. There is no statement of principle there. It is a pragmatic, de facto statement that the laws of the land would not intervene and it is not being offensive to the principles of any religious group in this country. However, that was not accepted and did not get a large level of acceptance. Senators know that as do the proposers of the amendment before us, and I accept that the amendment before us, by Senator McGuinness and Senator Ross, represents a further attempt to meet the objections to the present wording. It is not the alternative that I personally would favour and for that reason and the reasons I have already outlined, there is no indication either in this House or in the Dáil of a change of mind on this issue. For those reasons I cannot recommend this amendment to the House.
Mrs. Robinson: I paused to allow some official spokesman from the Fianna Fáil group in the Seanad to respond not only to the questions we mere Seantors have been putting but also to the very personal questions put by the Minister, but as yet nobody is volunteering. Perhaps when they have reflected a little on the Minister's questions we may get this yawning, gaping vacuum filled.
I am in a somewhat mellower mood  than I was earlier this afternoon for the simple reason that I am fortunate to live close enough to Leinster House and during the break between 6 o'clock and 7 o'clock I was able to get into my car, drive home and go out into the garden to play with my three children. It is a marvellous experience to get away from the atmosphere in this House. As you know a Chathaoirligh, as somebody who spends a great deal of time in it, the atmosphere in this House at times can be truly deadful. There is something wrong with the atmospherics and they are not helped at times by the debate. There was a point this afternoon — and I sense this was something shared by my colleague and co-feminist Senator Michael Higgins and also by other Senators who are not getting answers to questions — when I felt a rising sense of frustration and bitterness and it was cooled and balmed — if that is the right word — helped at least, by the sheer sanity of playing in the garden with children but I was necessarily thinking of the continuation of this debate this evening and of the next amendment. Thinking about this amendment necessarily drew together the threads of the kind of debate that we are having.
It is important to restate, as Senator Higgins did, that my support for this amendment is the qualified Fourth Stage support of somebody who is still utterly opposed to the kind of proposal we have before us to amend the Constitution, and I am more opposed now than I was at the start of the debate because I have had more time to read and reflect and I have had the opportunity of listening to other people who have made their contributions. As I sat in the garden or ran round and played with my children I was struck by the absurdity of the situation that this amendment tries to redress. Effectively, in so far as we can understand it, in the absence of any authoritative explanation the amendment of the Constitution which is proposed would equate the mature life of an adult women, or indeed a teenager who becomes pregnant, with a fertilised ovum. I thought it was about time we had a new movement in Ireland in which we could have all kinds of paraphernalia  associated with it, something like ERA, equal rights amendment in the United States. We could have something called equality of the fertilised ova, the EFO movement, because that is what we are talking about, equality with fertilised ova. In a hospital context, where the life of one or other is on the line, neither gets preference. That is what we are talking about, no preference to the life of the mother. The Constitution does not express a preference. It posits the balance as being an equal one. As has been pointed out by very reputable medical people, by lawyers and by an increasing number of women I am happy to say, that is not really a very satisfactory situation for women.
This has brought me into a broader context. I recall not so very long ago in this House in the context of social welfare legislation, objecting, as a married women, to the fact that I am legally the dependant of my husband even though I have worked before and since I married. I am the legal dependant in law of my husband and that has all kinds of consequences in the area of unemployment benefit and unemployment assistance etc. It is a blatant, overt discrimination which by the end of December 1984, if we comply with our EEC obligations, we will have to change. I object to being the legal dependant of my husband as a matter of law and I object to the way that it discriminates against me and other married women in the social welfare code.
I also recall not so very long ago introducing a Private Members' Bill in this House objecting to another form of discrimination against married women, that I automatically, whether I like it or not, take the domicile of my husband. If my husband decides to go to Australia and live there, I suddenly, by some magical formula, become domiciled in Australia even if I remain in my house which is sufficiently close to Leinster House to be able to go and play in the garden during the break.
These are aspects of a broad and pervasive discrimination against women that we women try not to get used to, because  it is important that we do not get used to them, that we do not accept them, that we constantly try to change our society, to ensure that it is a richer, fuller life for all citizens in this country. I think that for the last decade the general movement in our law — it may not have been moving very fast — has been in the general area of promoting greater equality, of improving a conditioned role in society which has bred all kinds of legal, social and economic discriminations.
It did not occur to me ten years ago or five years ago or, indeed, until approximately two years ago, that it was conceivable or possible that we would be faced with a proposal to amend the Constitution in such a way as to put in equal balance on the scales the mature, pregnant women, or the young, immature pregnant woman — because the statistics show a growing number of teenage pregnancies — and the fertilised ova. We still do not know if that is precisely what the amendment means. The previous amendment put toward in this House did not meet with the approval of either of the main parties in this House. This must lead to the conclusion, as far as legislators are concerned, anyway — whatever about the Supreme Court in due course — they have not accepted the previous amendment which sought to exclude from the scope of this constitutional right to life which is put on an equal footing with the right to life of the woman, and then we are left with two possible alternatives as far as legislators are concerned, the more likely interpretation being that the right to life of the unborn is to be deemed to exist from the moment of conception, from the fertilisation of the ovum. The other possibility, of course, is that the right to life is much later, either at the quickening or viability at some later stage, and this is still an interpretation which is open to the wording of the text as has been pointed out particularly at Second Stage of this debate. But it looks certainly as though in the minds of Members of this House, of a majority of those who voted in this House and presumably in the minds of Senators who abstained on that vote, the  intention is that, as far as the legislators are concerned, the vital point in the cycle would be at the time of conception itself and, therefore, we can have a whole new women's movement or anti-women's movement in Ireland. We can have banners and badges, equality with a fertilised ovum, EFO, which must rank with GUBU as being one of the most absurd, not only legal but also constitutional, proposals that this country has had to face.
The fact that it is so far along the line without getting far more adverse reaction from women individually and collectively in the country indicates that we do not have as yet in Ireland a sufficiently organised feminist movement to counter this kind of proposal. It may be indeed that it will emerge in a sense out of this kind of debate and out of this kind of proposal. Finally, there may be a broader based women's movement which will be able to organise and to oppose collectively and with much more structure and stamina a proposal of this kind, because certainly a very significant number of women's organisations have opposed this amendment, organisations like Cherish, and the Rape Crisis Centre and indeed the Council for the Status of Women. Perhaps that shows the limited power that they have in the country and certainly in the political power structures. They have a very limited possibility of influencing the way in which a measure like this will take hold and work its way through the process.
There was criticism of the debate in the other House that there had not been any significant participation by women Members. I think, a Leas-Chathaoirligh, that you would agree with me that that certainly cannot be said about the debate in this House. The debate has shown a very active and a very concerned participation by women Members. That is understandable. Men have and are entitled to have a view on these issues, but they do in a very intimate way concern women, especially women of childbearing age. I would say that if the proposal before the House today were to equate men at that point of possible life chances with a fertilised ovum, the attendance here this evening and the focus on this debate might be a  good deal more acute. It is not, in fact, men who are on the line in this debate. It is not men whose basic rights and relationship to the foetus and motherhood and all the other aspects of it are under a very direct consideration. Therefore, it is perhaps understandable that the debate in the Oireachtas would tend to reflect the very substantial imbalance in participation between the sexes. That is not to say, because it is not true even in this House, that all women representatives would be against this amendment.
You, a Leas-Chathaoirligh, made a speech, obviously a very sincere and committed speech, in favour of the wording of the text. The issues that we are discussing and the detail in which it is necessary at Report Stage to discuss them are issues which are of prime social, medical and emotional concern to women. Men, on the whole, tend either to switch off or get embarrassed. I heard a few jokes downstairs in the bar about my contribution on the other amendment and the medical detail which I had gone into. They were snigger jokes. It was a matter for nudge, nudge, snigger, snigger, all that talk about the fallopian tubes and so on — imagine that on the records of the Seanad. It causes a certain embarrassment. It is not the kind of thing we should really be talking about in this way.
The extraordinary thing in a way about this debate — and what struck me very much as I played in the garden with my children — was the absence of full discussion of the issue. The people who are discussing the issue in this House are the university Senators. There is a great yawning, gaping silence from most of the Senators in this House on the issue. They may say they are not lawyers or doctors, but they have both the opportunity, more of an opportunity than Members of the other House, and indeed the responsibility to bring together the information. The information is there, whether it is in letters that Senator Higgins was referring to or in briefings or in booklets or in factual material that has been made available or in the representations made by the various church groups or organisations. The information is all there in accessible form but, for reasons that go deep into our  political, cultural psyche, it is not the kind of issue we like to talk about. It has probably been painful to some Members of the Seanad that there has been quite so much talk about an issue relating to human sexuality and to the fertility cycle. Senator Brendan Ryan developed this to a considerable extent at Second Stage. I agree with him that we, as a nation, prefer not to have to in any way rationalise or discuss these issues. When it comes down to being equated with a fertilised ovum, it is time for some rationality, some commonsense and some down to earth reality.
If the present wording goes through unamended, the Minister for Justice has raised the question that arises again this evening in the House. He has put that question and we will see whether it will be answered. He admits that doubt is there. Some may think it is only a shadow, others, and I would agree with these others, think that it is a real danger and problem for women in a life-death situation and why is the opportunity not being taken to clarify that? Do we not matter at all? Is it not at least arguable that if that doubt is there and genuinely felt, that it is a doubt that should be answered. The way in which the Minister for Justice put his question in his brief and obviously well-prepared contribution in the debate this evening is fascinating.
It is an appalling abdication for a Minister for Justice, but he is caught in a difficult situation. He said that there was an obligation on the sponsors of this Bill to explain why they have not permitted the inclusion of some formulation which would ensure that in a situation where the two lives could not be saved, the life of the unborn in this context and the life of the mother, that there would be guidance on saving the life of a pregnant woman. Not alone is there no guidance, but in fact there is an expressed equality of right which prevents preference. If he as Minister for Justice with the advices that are available to a Minister in his position is as serious as he sounded in putting that question, that in itself is a very worrying reflection on this whole process by which this Bill is going forward.
 It is incredible that the Minister of a Government who has prime responsibility in this area of law change would in a rather pleading and almost pathetic way ask the Opposition why they will not allow or accept the necessity for a further provision, making is clear that in case of serious risk — he even used the formulation and I quote from my note of what he said: “It is possible to put in a subsidiary phrase that if medical intervention is necessary to prevent the death of a pregnant woman that any steps taken would not be unlawful”— the Minister for Justice thinks that is necessary. In other words, he accepts that it is not there at the moment. He accepts that there is a risk to the life of a pregnant woman in those situations.
Take, for example, the figures the Minister for Health gave a few weeks ago about the number of ectopic pregnancies. There were 500 performed in 1982 in Ireland. Obviously none of us knows all the details of each of those cases but if we posit that in a number of those cases the situation would arise where there was a possibility of there being a choice between one or the other and under present practice, as indeed present practice blessed by the Catholic Church as an exception, there would be no doubt as to what the medical steps taken would be, but now, because of the constitutional amendment, the doubt is not only there but the constitutional amendment gives no preference at all to a woman in that situation. Therefore, I believe that a good part of the time in the run-up to a referendum — since it looks as though there will be a referendum on this proposal — will have to be taken to alert Irish women to the full thrust of this proposed amendment. It is not a question of the usual kind of legal discrimination that I was talking about, that women are legally and necessarily and by definition dependent in law on their husbands, or that they legally and necessarily by definition take the domicile of their husbands or that there are discriminations in various aspects of their lives and their economic opportunities.
This is a great deal more serious. This  is a situation where they face greater risk, because of this constitutional amendment, to their very lives, where a woman's life is equated to a fertilised ovum and they are given no preference in the Constitution and they are then dependent on speculation in this House, as Senator Higgins has said, about whether or not commonsense will prevail. Commonsense about what? Commonsense operates in a sensible situation where it is possible to exercise sensible judgments. We are talking about a situtation where the Constitution and fundamental law of this country are being changed deliberately without providing for that commonsense formulation which the Minister posited here this evening.
This is not just a step backwards as has been described. This is a giant leap backwards into obscurantism and the sort of attitudes that must have prevailed when there was very little access to written laws and it was the high priest who decided what the law was and they could pronounce in that sort of way. We really are doing an extraordinary thing. There are quite a number of Senators who resent the fact that the debate is taking a bit longer than they had estimated but I wish we had the stamina to debate this for about another ten years without it going through this House. Then perhaps sanity would prevail and time would have allowed for the necessary reflections, because in a way what we badly need is time. The Minister for Justice says he wants some formulation to protect the life of the mother if her life is threatened as a pregnant woman. He wants that; he said he could not get it and he wants an explanation from the party whom he calls the sponsors of this Bill as to why not.
He then says that he does no accept the amendment put forward by Senator McGuinness in which she is proposing that instead of talking about the equal life the wording would be the prior life. To a very considerable degree, what Senator McGuinness is proposing is precisely the commonsense that is being sought on this issue, that in a life-death choice situation commonsense would prevail and the mother's life would be given priority over the life of the fertilised ovum. For  some reason which he did not elaborate or explain at any length, the Minister does not accept that proposal though it appears to be very much in line with his concern. He admits the problem but does not like the solution to that problem proposed by Senator McGuinness.
What does he do? He appears to be going to accept that his group, which is the largest grouping here in the Seanad, once again will heroically abstain on this issue, and let this dangerous text go through. When this dangerous text, which threatens the life of pregnant women, has gone through both Houses, the Taoiseach, Deputy Garret FitzGerald, has told us that he will make a statement and he will warn how dangerous it is. I really need to go back to my garden and ponder that some more because I have lost the thread of how this country is being run, when the Taoiseach and the Minister for Justice are seriously worried about the scope, extent and context of this legislation and yet the party to which they belong, the largest in the House, are heroically abstaining on the terms of the Bill.
Their leader, Senator Dooge, in a pragmatic contribution at Second Stage, explained that in his perception it was in the public interest at this stage to have done with it, have shut of it, that there had been enough talk about it and the sooner it went to the people the better. That is also very interesting, because either Senator Dooge is of the opinion that the Irish people are more discerning and more alert to the risks and dangers of this text, will be able to sort out the complex issues involved and vote against the amendment and, therefore, avoid this dangerous risk to pregnant women in Ireland or else, despite the expressed concern again here this evening of the Minister for Justice, the expressed concern and language of the Taoiseach that it will put women's lives at risk, they are prepared to allow it to go to a referendum and to become law. I am prepared to put up with certain legal insults but it is the limit that for political, short-term opportunist reasons, we are not apparently going to do the right thing. We are not going to put this messy Bill back into the  Dáil, and if there is not agreement in the Dáil on a precise formulation then let it drop or let it go, as Senator O'Leary, the Acting Leader of the House, has said, to an all-party committee or preferably to a non-political expert body to examine all the ramifications.
I never thought the day would come when the Minister for Justice and the Taoiseach would admit that a proposal would cause danger to the lives of women and that where they have a possibility of defeating it in one of the Houses of the Oireachtas they are not taking the responsibility and the opportunity to do that. Of course it would take up time and of course there are other problems, but is there anything that is more important? Senator Higgins has said that we are relatively insignificant and unimportant in real terms and that although there is a grave danger to women of child bearing age, the necessary steps are not being taken to delay this legislation. The absurdity is that this legislation is not necessary for any practical purposes. It is not going to achieve the prohibition of abortion. That already exists under the criminal law. There is no external pressure or priority about it.
I accept that the Minister's speech was at least a contribution and an indication that as Minister for Justice he still believes that the existing wording of the proposal in the Bill poses a direct life threat to pregnant women in certain circumstances. It comes very close to a kind of licensed murder. If you know that the text of a Bill that is going through the Oireachtas can cause serious danger and a practical threat to the life of a woman and prevent present medical practices being continued and if you seriously apprehend that and do not use every stage of a parliamentary process to oppose it, you may feel that you are only using those stages to buy time and to let it go back to the other House for further consideration. Is it not important to buy time? Getting back to the rationale of Senator Dooge's speech on Second Stage when he concluded, and presumably the Fine Gael Parliamentary Party in the Seanad concluded, that it would not be in the public interest to delay this — how  can you conclude that? How can you conclude that it is not in the public interest to delay this if you are seriously concerned that it may threaten the lives of pregnant women? It seems to be totally irreconcilable. This is not a pragmatic matter that does not concern life-death issues: this is the most fundamental issue of all concerning the life chances of pregnant women.
The debate is performing a useful service because it is beginning to clarify with deadly precision the issues that are involved. Perhaps that is why the Minister for Justice in this House this evening listening to the debate decided to intervene and to signal as Minister for Justice that he is still concerned and to entreat the party that is a sponsor of this Bill to explain why they will not allow the addition of a formulation to ensure the prior right of the mother when her life is threatened. That is all this amendment seeks, the prior right of the mother where her life is threatened. That apparently is not going to be accepted. One takes this from the silence of the Fianna Fáil group. As I rose, nobody from the Fine Gael group was offering. So far there has been silence from them also and perhaps the women of Ireland should conclude that only the University Senators and the Labour group care. We are the only ones who are sufficiently worried and concerned.
Mrs. Robinson: Yes, but your contribution to the debate is not as authoritative if, as a result of your contribution, you do not do something about it. For example, how do I view the present worry of the Minister for Justice? He said effectively here this evening that he was deeply worried and that he wants a formulation which would protect the life of a pregnant woman in a situation where  there is a choice between her and the fertilised ovum or embryo. Obviously, this is a matter which is causing the Minister for Justice a lot of pain and worry and yet if he is concerned how can this be reconciled with not using the normal parliamentary process to buy time and afford a further opportunity for consideration by sending this measure back to the Dáil? Is it not the most incredible expediency that is at the root of the Fine Gael decision to abstain? The Minister of State with responsibility for women's affairs was here this afternoon for part of the debate and she said that she views this measure as being dangerous to women. One can talk about GUBU and unprecedented situations but this is the first time in my parliamentary experience that the Taoiseach, the Minister for Justice and the Minister of State with responsibility for women's affairs have said on the record that a particular measure is potentially dangerous to the life of pregnant women; not to their economic outlook, their social standing or to their job prospects, but to their lives and yet they are not going to use the measures available to them as a Government to prevent this particular formulation from going forward to the people in a referendum.
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