An Bille um an gCúigiu Leasú is Fiche ar an mBunreacht (Beatha Dhaonna le linn Toirchis a Chosaint), 2001: Céim an Choiste (Atógáil). Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Committee Stage (Resumed).
Wednesday, 12 December 2001
Seanad Eireann Debate
Dr. Henry: I support the amendment of Senator Norris regarding the insertion of “including duly qualified psychiatrists”. It should not be necessary to include this amendment because psychiatrists are registered medical practitioners. On Committee Stage in the Dáil the Minister said that they could not or would not perform medical procedures. That is not correct because they would be capable of doing medical procedures. Psychiatrists should not be ruled out just because their professional expertise is psychiatry. They all undergo general medical training and are capable of undertaking medical procedures. I would not like to think they were ruled out due to any consideration of incompetence nor would I like to think they were ruled out because they were untrustworthy and more likely to acquiesce to promoting a situation where a woman's life was in danger.
The Minister is right in saying that psychiatric illness is not as measurable as blood pressure or haemoglobin levels, but psychiatrists have a skill in assessing the mental health of the person they are dealing with. It is important to remember also that psychiatrists must be the advocates of their patients, particularly if they are seriously ill. This needs to be taken into account.
Psychiatrists are only too well aware of the reaction there will be in a woman with serious mental illness who becomes pregnant and from whom psychotropic drugs have to be withdrawn because of the effect they would have on the developing foetus. In some cases this can be so serious that the woman could become suicidal because of the  withdrawal of the drugs and this should be taken into account when we consider the role of the psychiatrist. Psychiatrists will not simply promote the idea that a person is suicidal. The person may become suicidal because the psychiatrist has had to withdraw the drugs.
Senator Norris has felt it essential to bring forward the special position of psychiatrists but I would like to point out that at the same time they are equal members of the medical profession. They are registered medical practitioners and they should not be considered more likely to acquiesce to abortions.
Mr. Norris: I thank Senator Henry for her support. She can speak with direct experience of the medical profession. It is invidious to create a kind of two-tier system within the medical profession suggesting that psychiatrists are in some way more amenable to the idea of abortion or less trustworthy. The excellent briefing I was given from the Well Woman Centre raises the question by saying that it is unclear whether psychiatrists are included under the definition of medical practitioner. I have attempted to be helpful by making it clear and by specifying that they are so treated under the provisions of this Bill. Will the Minister explain to the House whether psychiatrists are considered medical practitioners under this Bill and whether this extension is redundant?
Mr. Martin: There was extensive debate on that and we agreed to disagree and voted on it. This moves on to the definition of medical practitioner. The objective of the amendment appears to be to make the opinion of a psychiatrist a valid basis for the termination of a pregnancy. That would be the obvious implication of the amendment. In the proposed legislation the definition of medical practitioner clearly refers to the practitioner who undertakes a medical intervention in the course of which, or as a result of which, unborn human life is ended as in section 1(2). The speciality or the designation of the practitioner concerned is not specified in the Act and no such group of practitioners is explicitly excluded.
That said, the amendment proposed by Senator Norris will explicitly bring psychiatrists within the scope of the definition. That would not be appropriate given that in essence then, although I know this is not what he intends as this is linked to his previous position on the suicide issue, the impact or import of the amendment would be that a psychiatrist would get legal cover to undertake a surgical or medical procedure proper to a practitioner with the appropriate qualifications and skills. That is not desirable or appropriate and would not be possible or right.
Cregan, Denis (Dino).
Ó Fearghail, Seán.
Tellers: Tá, Senators Henry and Norris; Níl, Senators T. Fitzgerald and Gibbons.
Faisnéiseadh go rabhthas tar éis diultú don leasú.
Amendment declared lost.
Mr. Ryan: Tairgim leasú a 15:
I leathanach 9, idir línte 21 agus 22, an méid seo a leanas a chur isteach:
“folaíonn ‘beart liachta' obráid mháinliachta, agus folaíonn an tagairt do bheart liachta a dhéanamh tagairt d'obráid den sórt sin a dhéanamh;”.
I move amendment No. 15:
In page 8, between lines 21 and 22, to insert the following:
“‘medical procedure' includes a surgical operation, and the reference to the carrying out of a medical procedure includes a reference to the performing of such an operation;”.
Is é atá i gceist agam ná go mbeadh sainmhíniú cruinn, so-thuigthe ins an mBille ar cad is brí le beart liachta. Níl a leithéid sa mBille mar atá sé leagtha amach agus ós rud é nach bhfuil, d'fhéadfaí mí-thuiscint a tharlú má glacfar leis an reifreann, agus tá súil agam nach nglacfar. Muna bhfuil an sainmhíniú seo ann, bheadh easpa mhór sa reachtaíocht.
Dr. Henry: It would be wise to insert this amendment – I see the Minister shaking his head – if we did not know what a medical procedure was, but I am aware from the Supreme Court judgments that a surgical procedure was considered appropriate in the termination of a pregnancy and that this was taken for granted. Senator Ryan may have gone into it in more detail but, unfortunately, my Irish did not allow me to follow all of his contribution. While approximately one-third of therapeutic abortions are carried out now by medical means, these are usually done at an early stage in pregnancy. I thought that a surgical intervention was considered acceptable, but Senator Ryan may have more information in that regard.
Mr. Costello: The Bill is silent on the definition of “medical procedure” and since that is central to the Bill, it is appropriate that we should have  some discussion on what is intended by it. The term “medical procedure” appears to be broad and would describe a number of forms of medical activity. It is appropriate, therefore, that it should specifically include the normal surgical procedure in terms of what is envisaged in the legislation. I am surprised there has not been an attempt to describe or define “medical procedure”. It would be worthwhile to include here some definition. What we have put forward is an improvement, unless the Minister has some alternative definition to bring forward.
Dr. Fitzpatrick: I do not agree with the case put forward by Senator Ryan. Practices in medicine are changing so rapidly that one cannot draw a defining line between surgical and medical procedures. In the area of gastroenterology, for instance, what was once the exclusive right of surgeons is now almost the exclusive right of physicians or gastroenterologists. To confine the Minister, therefore, to a very tight definition will not work.
Mr. Martin: Ní aontaím leis an leasú atá curtha os comhair an Tí ag an tSeanadóir Ó Riain. Tá bun agus barr an scéil mínithe ag an tSeanadóir Mac Giolla Pádraig. Ní bheadh sainmhíniú oiriúnach i gcomhthéacs na míre seo den reachtaíochta.
Senator Costello is right. The Bill is silent on the definition of the term “medical procedure”. It is not confined to any type of medical procedure such as might be contemplated by current medical practice. Currently abortion can be brought about by either surgical operation or by the administration of certain drugs such as the RU486 pill. The Bill must also be capable of covering future developments in this field. It is considered best not to seek to define the term “medical practice,” especially in a way which might tend to include non-surgical interventions that have the effect of bringing about an abortion. If the Bill was to define the term “medical procedures” as including a surgical operation, another practical point would apply. We would have to list all the possible types of intervention that would constitute a medical procedure in the legislation, which would not be pragmatic or practical.
Tarraingíodh siar an leasú faoi chead.
Amendment, by leave, withdrawn.
An Cathaoirleach: Amendment No. 18 is related to amendment No. 16 and both may be discussed together.
Mr. Ryan: Tairgim leasú a 16:
I leathanach 9, líne 24, “(tar éis ionphlandú sa bhroinn)” a chur isteach i ndiaidh “breith”.
I move amendment No. 16:
In page 8, line 23, after “life” to insert “(after implantation in the womb)”.
There is a peculiar anomaly in the Second Schedule, which our amendment seeks to address. It relates to section 1(3) of the legislation which provides for the reasonable opinion of a medical practitioner. It states: “. . . means a reasonable opinion formed in good faith which has regard to the need to preserve unborn human life where practicable.” The medical practitioner must have regard to the need to preserve unborn human life whereas the legislation is supposed to be about the prevention of abortion, which is defined as “the intentional destruction of unborn human life after implantation.”
There is a difference, in some people's view, between unborn human life and unborn human life after implantation. Our concern, therefore, is that a medical practitioner will be required to have regard to the need to preserve unborn human life whereas the Bill is about unborn human life after implantation. The duty being imposed on the medical practitioner is greater than that which the Bill is supposed to address. I do not understand this.
The amendment provides that the medical practitioner must have an opinion formed in good faith that has regard to the need to preserve unborn human life after implantation in the womb, which is what the Bill is supposed to be about, otherwise the Minister will impose a duty on the medical practitioner which is more extensive than what the Bill is supposed to be about. That is not fair to medical practitioners. I speak as the spouse of a medical practitioner
Mr. Martin: The purpose of the legislation is to deal with unborn life after implantation and prevent a substantial risk to the life of a woman in pregnancy, which is made clear in sections 1(1) and 1(2). My strong legal advice is that it is completely unnecessary to add the words “after implantation in the womb” to the definitions.
Mr. Ryan: I am not surprised the Minister has strong legal opinion because this is such a complicated and convoluted process that those who drafted the legislation would have to insist that nothing else could be done. We had a long discussion regarding Articles 40.3.3º and 40.3.4º because they could be in conflict and the absence of a definition of the term “unborn.” This Schedule introduces a definition of the term “abortion” based on a moment in time when implantation takes places in a woman's womb. If we are attempting to regulate the medical profession, then we should regulate it in regard to the period  of time, which is consistent with the objective of the legislation.
Mr. Martin: The legislation contains the words “in this section”. Therefore, one is dealing with sections 1(1), 1(2) and 1(3). Section 1(1) contains the words “after implantation”. There is no problem because it includes the words “in the section.”
Mr. Ryan: There is a problem. The section defines three terms: “approved place,”“medical practitioner” and “reasonable opinion”.
Mr. Martin: They are all used in the section.
Mr. Ryan: There is no definition of the term “unborn life” in the section. The nearest guideline refers to unborn human life after implantation which will be interpreted in the light of the Constitution which refers to the life of the unborn. The medical practitioner, therefore, in coming to a reasonable opinion must have a broader concern than to avoid carrying out what is defined as an “abortion” under the Schedule unless it is stated his or her concern must apply to unborn human life after implantation. That is our suggestion. I am not surprised that the legal advice is that it is unnecessary. Our legal advice is that the phrase is ambiguous and could put a greater burden on the medical practitioner than intended.
Dr. Henry: A theologian wrote to me on this subject regarding how we must try to differentiate between unborn human life in the womb after implantation, about which she was happy, and unborn human life, which involves in vitro fertilisation or any situation where it is outside the womb. The Minister has had a great stroke of luck because I have mislaid the letter. I hope Senator Ryan will not press the amendment in order that I can find it because it is an interesting argument.
Mr. Costello: I support Senators Henry and Ryan. There is ambiguity in the definition of the term “reasonable opinion” which the legislation bluntly defines as a “reasonable opinion formed in good faith which has regard to the need to preserve unborn human life where practicable.” By saying that refers solely to unborn human life in the womb after implantation without inserting those words in the legislation, the question of when unborn human life is dealt with is brought into play. There have been various discussions regarding what constitutes unborn human life which was debated extensively on Second Stage. The Minister's legal opinion should be similar to ours, that he should insert these words to eliminate ambiguity since that is what he intends. One  person's legal opinion is perhaps not another's, but if the words were inserted, there would be no ambiguity.
Mr. Martin: I have strong legal advice, and it is self-evident from reading the text, that it is not necessary. Section 1(1) states that, in this Act, abortion “means the intentional destruction by any means of unborn human life after implantation in the womb”. Section 1(2) has the exemption of medical procedures to save the mother's life and section 1(3) deals with an approved place, a medical practitioner and a reasonable opinion, all of which are contained in section 1(1) and (2). Clearly the definitions relate to the section and the language used in it – it is self-evident. We might all agree and await a gem of wisdom from the Supreme Court.
Mr. Ryan: I accept with reluctance that the Minister may be right but not that it is self-evident. This is an unsatisfactory process because we have to deal with the whole Bill as the Schedule instead of dealing with it section by section, allowing us to discuss each amendment in detail. Instead we must deal with all the amendments together. It is too late to blame the Minister for that.
Section 1 of the draft Bill contained in the Second Schedule states that abortion “means the intentional destruction by any means of unborn human life after implantation in the womb”. Later, the doctor is told that he or she must have a reasonable opinion that a procedure is necessary. However, in forming a reasonable opinion, the doctor must have regard to the need to preserve unborn human life. Unborn human life, as referred to in section 1, is something that exists prior to implantation as we discussed earlier. Unborn human life is that living organism which is implanted in the womb and the doctor must consider not just whether he or she is breaking this law, but also unborn human life which is not implanted in the womb. It is not self-evident but a matter of opinion over which we will agree to differ. At Senator Henry's request, I will not push the matter tonight as she wishes to return tomorrow to discuss it further with the Minister.
Tarraingíodh siar an leasú faoi chead.
Amendment, by leave, withdrawn.
Mr. Ryan: Tairgim leasú a 17:
I leathanach 9, líne 25, “atá” a chur isteach i ndiaidh “agus”.
I move amendment No. 17:
In page 8, line 24, after “and” where it secondly occurs, to insert “which has been”.
This is a schoolteacher's amendment. This sen tence is poorly drafted. I am fascinated by the capacity of the parliamentary counsel to put in words which are superfluous and omit them where they are essential. I do not accept that the parliamentary counsel has superior wisdom. The Bill states “. . . the need to preserve unborn human life where practicable and of which a written record has been made and signed by the practitioner”. We suggest altering the latter to read “which has been signed by the practitioner”. This is the correct construction in English. The other form is sloppy English which should not be encouraged. It is poorly drafted and it is of no credit to the people who are supposed to be much better at law making than me.
Mr. Martin: Those same people would argue that it is perfect and that this additional phrase is unnecessary.
Mr. Ryan: They also argued that Article 40.3.3º was perfect.
Mr. Martin: It was politicians who argued that.
Mrs. Jackman: These two former English teachers agree with the Senator.
Ms Keogh: We do.
Mr. Costello: It is a technical amendment that would provide proper English in the text, with which I am sure the Minister, as a former teacher, would be delighted.
Mr. Martin: As a former teacher, I do not see anything of major importance that needs alteration.
Mr. Ryan: We are reaching the stage where it is clear that a sensible, simple amendment will not be accepted because it must go back to the other House.
Mr. Martin: That is not fair. The Senator cannot make the argument—
Mr. Ryan: I have been fair and reasonable. I have not ranted about other issues. We have two former teachers of English here who say, as I do, that this is sloppy English. The Bill would be well served by the amendment.
Mr. Martin: The people in the office of the parliamentary counsel are intelligent.
Mr. Ryan: I did not suggest that they were not.
Mr. Martin: The Senator is suggesting it.
Mr. Ryan: It takes a level of intelligence to draft what they do. No one stupid could do it, but that does not mean that what they produce is  intelligible. It is ridiculous to discuss this at 1.45 a.m. as there is no urgency about it. We should do it after Christmas with calm heads and after plenty of time to reflect. However, I will not push the amendment as there are more important ones to come.
Mr. Walsh: If we wish to get into the niceties of the English language, we must also have regard to what preceded it. It says “of which a written record has been made and signed by the practitioner”. “Has been” can be regarded as preceding “made and signed.”
Mr. Norris: I was attracted to come into this interesting debate. In these matters, the principal verb governs the subsidiary clause.
Mr. Martin: Is that true of Ulysses?
Mr. Norris: Yes, but unlike this, Ulysses is a piece of fiction.
Mr. Martin: The great thing about that book is that it defies many conventions.
Tarraingíodh siar an leasú faoi chead.
Amendment, by leave, withdrawn.
Níor tairgeadh leasú a 18.
Amendment No. 18 not moved.
Dr. Henry: Tairgim leasú a 19:
I leathanach 9, líne 26, “os cionn 18 mbliana d'aois nó leanbh baineann faoi bhun 18 mbliana d'aois” a chur isteach i ndiaidh “baineann”.
I move amendment No. 19:
In page 8, line 26, after “person” to insert “over 18 years of age or of a female child under 18 years of age”.
This amendment was tabled because the definition of a woman as a female person is extremely broad when we consider the people who may be affected by this legislation. The Minister, I am sure, has good reasons for this wording but is he aware of the man who spoke recently on Joe Duffy's radio programme about going to England with his pregnant wife who had a psychiatric illness? At three months, she decided that she could not go through with the pregnancy, which is why they went to England to have an abortion.
He described travelling in a mini-bus with five other women and an 11 year old girl. This amendment would ensure that we remember that the person we describe as a woman may often be a child as young as 11 years of age. The bald statement that a woman is a female person does not  reflect the reality at the root of what we are discussing.
Mr. Norris: I support the amendment. The tragedy is that, under the terms of this legislation, a child will be treated as a woman and in circumstances of rape or incest will receive no more consideration than an adult.
Ms Keogh: It is often the simple things that pull us up short. This amendment is one of those and I agree with it. It puts into sharp focus the fact that a child perhaps as young as 11 years has been raped or a child of 13, as we have seen, can be suicidal. That poor child is now committed by the State to going through a pregnancy. You could say that the child is sentenced to death. We are saying that we will not protect the child who is threatening suicide. The only way we will find out if we are right or wrong is when the child commits suicide.
Mrs. Jackman: I agree. It is a very narrow interpretation. The 12 or 13 year old child is not being considered. It is a deliberate omission and I would prefer a recognition of the fact that we are talking about young girls. We need the definition included.
Mr. Martin: People have views on the broader issues of the debate. We are talking now about the definition of a woman in the Bill. The definition as used in the Bill means a female person and that encompasses a female person of any age. Senator Norris is opening up new horizons in terms of what can be permitted and not permitted in terms of abortion and this has not been ventured before either in the Oireachtas committee or anywhere. It is a much broader issue altogether. It works both ways. It is important that a child or a young person would have the benefit of the medical intervention that is legitimised in this Bill in terms of a medical doctor intervening to save the life of a woman, irrespective of her age, who is pregnant and whose life is at risk.
Mr. Norris: A child would be much more likely to commit suicide when confused and unhappy.
Mr. Martin: There is no evidence for that. A similar definition was used already by the Oireachtas and has been used in the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act of 1995.
Mr. Norris: I am not sure that defining a woman as a female person is of any great assistance. She can only be defined in opposition to a male person. Male persons cannot get pregnant. They are unlikely to seek abortions. It is a slightly fatuous definition. Senator Henry has unearthed  something in terms of distinction between an adult and a child. Children are more vulnerable and need to be protected more.
Mr. Martin: Senator Henry's amendment does not do that. It includes a person over 18 and a person under 18.
Mr. Norris: It raised a question.
Mr. Martin: Legislation is not about raising questions. It is about precision. There is no difference at all between the definition of woman meaning a female person and Senator Henry's definition.
Mrs. Jackman: She does not refer to a female child.
Mr. Martin: Perhaps someone could explain the difference to me. When something is put down in law it is not about raising an issue, it is about precision. I understand why Senator Henry raised the issue.
An Cathaoirleach: I ask for an orderly debate. I will allow Senator Norris to make his point.
Mr. Norris: It was wrong to criticise Senator Henry in this regard. At least she opened up the debate. There is an argument for treating people of a tender age in a slightly different way from adults, particularly in terms of incest and rape. That is at the core of the Bill.
Mr. Ryan: I wish to approach this from a different angle. Will the Minister tell the House why it was felt necessary to put a definition of a woman into the Bill? I suspect the reason for that formulation is to ensure that children are not excluded. The reasonable understanding of a woman in this context would be of an adult woman. What they are doing is deliberately putting in a definition to make sure that children are included.
Senator Henry's amendment makes explicit what is implicit in the Government's insistence on putting this into the Bill. We all know what a woman is. There are lots of other phrases in this legislation – the definition of a womb, for instance – which you will not find in a medical dictionary. I wonder why the Government feels it has to have a definition of a woman in the Bill.
Dr. Henry: I do not think one can ever refer to a 13 or a 14 year old girl as a woman. It would be very unusual. It is wise to show that we are dealing with female children as well as female adults. With a minor there is the intervention of the parents to be taken into account. This would be important. It would be worthwhile looking at this. The Minister could consider it overnight. There is a difference between saying a woman is a female  person and saying a woman is a female person over 18 years of age or a female child. This woman means a female person. It sounds like someone who is autonomous. A female child is not. The female child would be subject to the direction of parents or guardians. It is a totally different situation.
The female woman is quite different from the female child. They are not the same entity even in legal terms. I cannot understand why they have been lumped together. We would not have had the problems of the X and C cases if these had been people over 18. The girls would not have required either parents or health boards to bring them to England. I cannot see why the Minister thinks that even legally they are the same. They are not. They will be regarded differently under the law because the law is applied differently to minors.
Ms Keogh: We are talking about the differentiation between minors and adults and talking about young girls from 12 to 17 years as women. I have two daughters who are young women because they are aged 20 and 22. Four years ago they were not women, they were children. Under the law they were children. This would be a very important point if this goes to the people. The realisation that we are going to treat young girls—
Mrs. Jackman: Differently.
Ms Keogh: No, exactly the same as we would mature women. That raises all sorts of alarming questions.
Mr. Costello: I have listened to the arguments on both sides. The Minister says that there is no difference between what is in the Bill and what Senator Henry proposes. In stark terminology there is not, but it makes a huge difference in terms of the norm in which people define and perceive whether it is children or women. The definition that woman means a female person appeared to everybody as tautologous, unnecessary and fatuous. It seems now it is very carefully chosen to camouflage the fact that we are talking about children and young girls. No pre-teen young girl aged ten, 11 or 12 has ever been described as a woman.
Mr. Martin: They have been in the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act, 1995.
Mr. Costello: As a woman?
Ms Keogh: Maybe they got it wrong.
Mr. Martin: It was passed by the Oireachtas.
Mr. Costello: This may be true in some legalism that I have not encountered. This seems a somewhat underhand way to camouflage the fact that children are being treated exactly the same as adult women. Anybody would say that a woman is an adult female person. It does not need a definition. It certainly does not encompass young children. From that point of view, Senator Henry's amendment is extremely important to show exactly what is intended given that it is put in this stark fashion. It not only includes women over 18 years of age but also a female child who is much younger. It would be preferable to accept Senator Henry's amendment.
Mr. Norris: It seems there is a distinction between the adult and the child. If we look at the Bible it mentions when I was a child, I thought as a child and when I became a man, I thought as a man. It is obvious there is a distinction. It seems the intention here is clearly to criminalise children as well, and that is very regrettable.
There is also a question of sensitivity in terms of language. There seems to be a lack of sensitivity in language that any female person can be described as a woman. That simply is not true in common parlance. We do not describe a female child as a woman. It would be very unusual to describe somebody under the age of 16 as a woman. It also raises other curious questions in terms of the Bill and its definitions and lack of definitions. The Minister has resisted giving a definition of the unborn and we teased this out earlier today. However, my understanding is – my medical colleagues will correct me if I am wrong – sexual distinction starts fairly early in the whole process of gestation. That means there certainly is a time before the child is born when it is perfectly easy to determine that the embryo is female. Does that mean in addition to the unborn we will now have unborn women? This would be ludicrous and shows the lack of appreciation of the subtleties of language in this Bill.
Mr. Walsh: I share the concerns expressed with regard to children and the need to protect them. However, we need to remember the whole thrust of this Bill is to protect the most vulnerable of all, which is human life in pregnancy. We must not lose sight of that.
Mr. Costello: I wish to give the definition of a child from Thompson's Concise Medical Dictionary.
Dr. Fitzpatrick: It is out of date.
Mr. Costello: A child is a human being from birth to puberty.
Mr. Norris: Can we get a definition of woman from the same source?
Mr. Costello: Unfortunately, she is not defined.
Mr. Martin: Despite all that has been said, there is no attempt to camouflage. We all know this Bill also applies to children and minors.
Mrs. Jackman: Why does the Government not say it?
Mr. Martin: We have said it. We dealt with it when the C case was raised in the other House. Throughout this Bill, Senator Keogh has raised the question of 12 year olds.
Mrs. Jackman: Why could the Government not say it?
Mr. Martin: Let us not, an hour later, pretend that somehow, during the 26 hours this Bill has been debated in both Houses, we did not know we were referring to children. This was known in 1983 and in 1992 when we had the X case. This has been known since 1861 in terms of the Offences Against the Person Act. Let us not cast aspersions against other people in terms of motivations behind the use of language.
I accept Senator Henry's motivation in raising the issue through her amendment. However, there is no difference in precision between the definition proposed by Senator Henry and the definition in the Bill. Let us not make a big deal out of this now and try to pretend there is something significant in the amendment tabled. There is significance in the broader, more substantive issue of whether people want a particular abortion regime involving a particular cut-off date. Is that what people are suggesting?
Mrs. Jackman: No.
Mr. Martin: This Bill is to prohibit abortion. It is not defining unborn human life, it is defining the crime and offence of abortion. Are we now saying that people want to introduce a new criminal offence of abortion that has a cut-off point at some age? I did not see that in any part of the report of the All-Party Committee on the Constitution. I may be wrong, it might be buried in there somewhere, but I certainly did not see it in any of the submissions for the Green Paper. It has not been raised in this House today. I accept that people are entitled to raise it, but there is no attempt here to camouflage that. The word “woman” is defined to avoid doubt in relation to a minor or a child, particularly in terms of carrying out procedures. It works both ways.
Acting Chairman (Mr. R. Kiely): This debate has been fairly long and I am inclined to put the  question, but Senator Norris has indicated he wants to speak and I will allow him.
Mr. Norris: I am grateful to the Minister and I would not accuse him of cynicism. This has been a very useful debate because it has clarified issues. Yes, it is disgraceful that for example a nine year old rape victim should not be permitted an abortion with the advice of her parents. That is dreadful, shocking and inhuman. Of course there is a difference between an adult and a child. That there is no such distinction allowed for in this Bill is wrong. I am very grateful that Senator Henry raised this issue. She may not have raised it in precisely the way it has developed, or perhaps she did. I feel very strongly that we must have regard to the rights of children who are vulnerable. As adults we have no right to insist that a child at this early age in her life should be forced by the State to continue the pregnancy and give birth as a result of rape or incest. That is grossly immoral and obscene.
Dr. Henry: I did not table this amendment to try to make a benchmark at which there would be different applications of legislation. On Second Stage I said I was not trying to do anything in this legislation other than protect the life of the mother. I thought the protection of human life in pregnancy should include the protection of the life of the mother. I tabled the amendment because the two age groups have a different legal standing. A person is not the same when he or she is a minor as when he or she is an adult. That is the reason I wanted to make a distinction in the legislation. There is nothing Machiavellian about it. We are talking about two different legal entities.
Tarraingíodh siar an leasú faoi chead.
Amendment, by leave, withdrawn.
Mr. Ryan: Tairgim leasú a 20:
I leathanach 9, líne 36, “12 bhliain” a scriosadh agus “cúig bhliain” a chur ina ionad.
I move amendment No. 20:
In page 8, line 34, to delete “12” and substitute “five”.
The longer I am a Member of one or other of the Houses of the Oireachtas the more confused I am by the way we work out the appropriate sentence for something. I know the figure of 12 years proposed exceeds the maximum penalty for a long list of horrendous offences which involve considerable threats to the lives of adult human beings, such as the use of a syringe full of blood to threaten someone. Many such offences carry sentences of a maximum of five to seven years. I do not know where we got the figure of 12 years.  I do not propose to make a huge song and dance about this, but would love the Minister to explain a rational basis for it. Was someone asked to think of a number between five and 20 and we got 12? I would like the Minister to outline where it fits in with the area of criminal law in terms of defining a penalty.
We are talking about a back street abortionist or a doctor who does something which is interpreted as something he or she should not have done. It could be a D and C which is carried out after a rape for the ostensible reason that a risk was posed to the life or health of a rape victim. We are talking about a medical procedure in the course of which unborn human life is ended. One of the most common ways in which unborn human life is ended, particularly after rape, is by the use of a D and C to clean out a woman's womb. Everyone knows that happens. The Bill is stating it is a prohibited offence which could carry a sentence of 12 years in prison. This is out of proportion. I am also taken aback that it appears to be by indictment. There is not any reference in the Bill to prosecution other than by indictment. I am surprised at this.
Mr. Martin: Under the Offences Against the Person Act, 1861, any person who procures an abortion is liable on conviction on indictment to be sentenced to imprisonment for life.
Mr. Ryan: One would not want to go back to Victorian times.
Mr. Martin: That is the law over which we have presided and still preside.
Mr. Ryan: There were other offences which a recent Government—
Mr. Martin: That is from where we are coming.
Mr. Costello: It is now the equivalent of life imprisonment.
Mr. Martin: It is not.
Acting Chairman: The Minister to reply, without interruption.
Mr. Martin: If a person received the maximum sentence of 12 years, it might not be served if one makes that argument. That is where we stand in terms of the Offences Against the Person Act. The purpose was to try to reach a balance which would reduce significantly the sentence enshrined in the Offences Against the Person Act, 1861, while continuing to recognise the seriousness of the offence of abortion. It is a balance between those two issues. It is a sensitive issue. I am not saying it is not a difficult one. Any penalty which would be applied in a case would be at the discretion of the Judiciary. We could take, for example,  the D and C argument or a doctor's argument. There can only be a prosecution or conviction if it is the intentional destruction of the unborn in the womb. There are many hurdles in trying to prosecute someone. It must first go to the Director of Public Prosecutions and there is room for rebuttal by the practitioner concerned. The DPP must be satisfied that a case should be taken in the first place. A case has not been taken against any woman since 1861. That is the de facto position.
Mr. Ryan: It raises the question.
Mr. Costello: This is one of the most ridiculous penalties I have seen in legislation. We have a 12 year penalty for someone convicted of an offence which is not an offence in the neighbouring jurisdiction. How can one justify giving a 12 year sentence on indictment to someone involved in aiding or procuring an abortion? There is no possibility of a summary case being taken because it must be indictable. How many other offences do not have the option of a lower or higher court? A limited number of horrendous offences are dealt with in this way. It is ludicrous and hypocritical to say the only penalty prescribed is 12 years, a fine or both, when it is not an offence and there is not a penalty in most other European Union jurisdictions.
Mr. Dardis: It is an offence to have a back street abortion in another jurisdiction.
Mr. Costello: Who is talking about a back street abortion? It is not mentioned in the Bill.
Mr. Martin: It is.
Acting Chairman: Senator Costello, without interruption.
Mr. Costello: It is not. Nobody talked about someone who aids a person to effect an abortion in the State. If a person gives someone money to be used for the purpose of terminating a pregnancy in the State or if someone gives advice or aid and the result is that a pregnancy is terminated in this jurisdiction, will he or she be subjected to the same penalty? How will it be proved that it was intended for this or another jurisdiction? It is hypocrisy. What are we doing by pulling the figure of 12 years out of the air for someone who performs an abortion or aids or abets a person to terminate a pregnancy? I do not know where the figure came from. It is the most ludicrous legislation and penalty I have seen.
Mr. Walsh: It is a serious offence for anyone to offend against a person and a heinous crime for anyone to take the life of a person. The punish ment should be commensurate with the crime. The people will decide whether human life in pregnancy has the same protection in law as a human being. The penalty for anyone who breaches that law must be commensurate with the crime. The Bill states that it shall not exceed 12 years, which means there will be judicial discretion. To suggest that it should be curtailed to a maximum of five years is not to give the same value to the protection of the unborn as to the born. We gained our independence 80 years ago, thank God, and we do not have to look to England for legislation on ethics.
Mr. Norris: We just send our citizens over there.
Mr. Walsh: We have proved in many ways that we are well able to develop our own laws, economy and civilisation in a way of which we can be proud. To cite other jurisdictions as models for us shows a certain amount of insecurity.
Ms Keogh: I will be polite about this. We are talking about 100,000 women who have gone to England to have abortions, and we should remember that when we discuss this issue. Those people took a lonely road and if any Senators remember us talking about the numbers they will realise we only know about the 6,500 to 7,000 women every year who were brave enough to give their home addresses. We do not know how many more gave only the address of their accommodation or the address of a relative. At least 100,000 women have gone to have abortions.
Mr. Walsh: Does that make it right?
Mrs. Jackman: She is not saying that.
Ms Keogh: Did I say that?
Mr. Walsh: That is what the Senator is implying.
Ms Keogh: I am saying it is a fact that we have to acknowledge.
I very strongly oppose putting clauses into the Constitution which criminalise women who have faced the prospect of an abortion. It is fallacious to say it is not life imprisonment and that the sentence is only 12 years. The logic of this is skewed. We are discussing this as if these women were inanimate objects and as if the 100,000 women who had abortions did not put much thought into it and went to England as a matter of course. We know stories of the sad journey they made and we should be more respectful of what those women have experienced.
Dr. Henry: I asked a question on Second Stage, but I did not get an answer. Now is as good a  time as any to try again. Medical abortifacients are being employed more and more in the UK and about one third of abortions are now procured using them. They have a 95% success rate up to seven weeks and about a 75% success rate up to nine weeks. One of the problems for women travelling to England is the cost, which is about £300 sterling for the abortion – at least £400 – and perhaps £200 for flights. There is then the question of staying there, which is where we run into difficulties.
If a woman decides to have a medical abortion, the doctor prefers to have her close at hand because the hormonal element of the medical abortifacient is taken first. There then has to be a gap of at least 12 hours – preferably 24 – before the prostaglandin tablets are taken. What happens if a woman decides not to stay in England after taking the hormonal component, which blocks the progesterone from maintaining the pregnancy, and instead goes home and takes the prostaglandin in Ireland? Has she procured an abortion in England or in Ireland? She would have taken the first set of tablets in England, but the second lot in Ireland, which will complete the abortion.
Mrs. Jackman: The point was made that no attempt was made to differentiate between the “person” and “the woman being the female person”. Is the Minister telling us that a young girl who is suicidal and contravenes subsection (1) of this section, which refers to the intentional destruction, by any means, of unborn human life after implantation in the womb, is subject to 12 years imprisonment? The distinction is not made in relation to the “person” so the young suicidal girl is now a criminal and may be imprisoned for 12 years or fined, or both. Are we depending on the Director of Public Prosecutions to make an exception in such a case?
Mr. Ryan: At the risk of causing myself grief in the future, notwithstanding what the Constitution says, I do not regard the life of a six week old embryo as being of equal value to the lives of women in my large social and family circle, including those of my spouse and my two daughters. No matter what remedy we put in place for unwanted pregnancies, I will not accept that a seven or eight week old embryo is of equal value to any woman for whom I care. There are not many men in this House who, if put in a position where they had to choose, would take a different view, whatever its intricacies.
I am at a loss as to why we are talking about the liberality in the Bill of a penalty of only 12 years while also saying that the Act will not operate to restrict any person from travelling to another state on the grounds that his or her intended conduct there would, if it occurred in this State, constitute an offence. Not only are we  saying that an offence carrying a 12 year penalty is not an offence when committed abroad, we are writing it into our Constitution that we will not prosecute in that case.
Mr. Costello: A person is aiding and abetting in that instance.
Mr. Ryan: There is no offence once you cross the border. The penalty is disproportionate because the 12 year sentence represents the national self-deception that somehow this Bill will make a difference. There has not been a single prosecution under the 1861 Act, yet we are tying ourselves in knots to amend our Constitution to deal with a problem which does not exist. It is pure nonsense.
Mr. Dardis: There is a suggestion that the mother of the aborted foetus is subject to a penalty. That is not my reading of the legislation before us. Section 2(1) says that no person shall carry out or effect an abortion in the State, therefore it is the person who carries out an abortion who is liable to penalty, not the mother.
Mr. Ryan: Is that to say that a woman having an abortion does not aid and abet it?
Mr. Dardis: I will try to be moderate in my language and restrained. I concede that, of necessity, the 12 year period of the penalty is arbitrary. However, what is being represented is a minimalist approach. In other words, on the margins, 12 years is an excessive penalty, but we can also envisage circumstances where it would be an adequate penalty for people who callously and calculatedly exploit young women. For that reason, 12 years is a reasonable number of years. As has been explained, it is at the discretion of the Judiciary.
Mr. Norris: Will the Minister give some more information about there being no prosecution brought under the 1861 Act? Does he mean no prosecution of the woman or of the abortionist? I understand there have been prosecutions of abortionists. Is that correct?
Mr. Martin: Where? In Ireland?
Mr. Norris: Was Nurse Cadden not prosecuted, for example?
Mr. Martin: I meant of women.
Mr. Norris: Is that of women who underwent an abortion?
Mr. Martin: Yes.
Mr. Norris: Yes, but there have been prosecutions under the 1861 of persons carrying out abortions. Is that not right?
Mr. Martin: I do not know. I would have to check that for the Senator.
Mr. Norris: I believe that is the case.
Mr. Martin: I will check with the legal team about the legal position concerning women. I understand cases have been taken against abortionists.
Mr. Norris: I thought I was right on that and it is important we clarify that point. Senator Ryan made a telling point that a woman who consents to an abortion could be held to have aided and abetted the commission of that act. On top of that, one of the matters on which I was briefed and about which there is particular concern is self-induced abortion. In that case there can be no question that the young person, such as a teenager who, terrified of the consequences of pregnancy, induces an abortion, will be liable under the Bill.
On what my good friend and genial companion, Senator Walsh, had to say, it is a pity we have reverted to this silly Nationalistic notion that England is the sink of iniquity.
Mr. Walsh: We need go no further than the Dublin and Monaghan bombings to discover the morality and interests of the British with regard to the taking of human life.
Mr. Norris: Senator Walsh has made my point beautifully by his fatuous comment which is on the point of racism.
Mr. Walsh: No, it is not.
Mr. Norris: It is. I am old enough to remember when the Dublin District Court used to give a sentence of either six months or going to England. Let us be a little realistic about our attitude to the neighbouring island where more Irish people live than in this little split pea.
Mr. Martin: The people voted for the right to travel. The C case was highlighted as a major issue prior to this.
Ms Keogh: They voted for the X case judgment as well.
Mr. Martin: That is stretching it.
Ms Keogh: No, it is not.
Acting Chairman: The Minister should continue without interruption.
Mr. Martin: We have attempted to ensure the C case is not excluded from the legislation and that was done by the provision in section 4(2). What could be construed in one way as a humanitarian attempt to facilitate the person in the C  case is also construed as one of the most hypocritical and cynical approaches one could adopt. We do not have a uniform view on these issues in this country. We cannot affect what happens in other jurisdictions. The people voted logically in that context.
No one has pretended that this legislation will stop people going to England for abortions. We never advanced that argument and I said from the beginning, as did the Taoiseach and Tánaiste, that the legislation and the constitutional amendment would not prevent women going abroad for abortions. What came across in the all-party committee was that the most effective mechanism we could employ to assist women with crisis pregnancies or who have had an abortion was the establishment of a crisis pregnancy agency. That was the mechanism put forward by the Oireachtas and which we adopted. We have provided for the first time a national agency with a direct focus on crisis pregnancy and the need to support women in that position, developing proper education and prevention programmes, proper options, and so on, and also providing post-abortion counselling services. It was identified in the Trinity study, which was articulated comprehensively in the all-party committee's deliberations, that women required that type of support.
The Fine Gael Party has, to a large extent, tried to have it every way in this debate so far.
Mrs. Jackman: Not here.
Mr. Martin: It has tried to have an each way bet on almost every option. No one except Senator Norris has so far suggested that we should have an abortion law. Senator Jackman followed up on that. All political parties, including the Fine Gael Party and the Labour Party, have presided over the criminalisation of women since 1861. I have to stand back and count to ten when I hear tremendous remonstrations against and huge emotional comment about my criminalising women through this legislation when every Member who says that in the House tonight has presided over the criminalisation of women and a penalty of life imprisonment for abortion since 1861. It is a bit hard to take some of the emotional outbursts on this subject. That must be said and put on record.
Mr. Costello: That is not true.
Mr. Martin: It is true.
Mr. Ryan: No, it is not. The Minister should not get cranky.
Mr. Martin: I am not, but it is true. It cannot be denied that it is true.
Acting Chairman: The Minister should continue without interruption.
Mr. Norris: It is a fair point.
Mr. Martin: I accept—
Mr. Costello: On a point of order—
Acting Chairman: The Minister should continue without interruption.
Mr. Costello: On a point of order—
Acting Chairman: No, Senator Costello.
Mrs. Jackman: He is entitled to his point of order.
Mr. Costello: I am entitled to a point of order.
Acting Chairman: What is the point of order?
Mr. Costello: The Bill to which the Minister referred is from another jurisdiction and such legislation—
Acting Chairman: That is not a point of order. The Minister should continue.
Mr. Costello: The Bill is from another jurisdiction and has fallen—
Acting Chairman: No, I do not accept that as a point of order. Senator Costello should let the Minister continue.
Mr. Martin: It has long been recognised as law. The other fundamental point on the criminalisation issue is that we could go the whole hog and decriminalise abortion completely, but that would be to legalise it. If one continues with the argument that there should not be any sentence for abortion, the de facto consequence would be to legalise it. No political party has put that forward as a perspective. Therefore, we are clearly talking about degree and the amount of years, if there is to be consistency in the debate. It is a question of whether it will be five, six, seven, eight, ten or 12 years.
I have explained that the Government did not wish to go the route of the Offences Against the Persons Act of 1861 which we believed was too severe in its penalty of life imprisonment. We have many safeguards in the Bill in the form of what I call stepping stones leading to eventual prosecution and the term of imprisonment will ultimately be at the discretion of the Judiciary, which will take into account all the circumstances of individual cases, as it has done before. Despite all the provisions in the 1861 Act, there has not been a conviction of woman in circumstances which contravene that Act.
Dr. Henry: Will the Minister address the matter I raised?
Mr. Martin: I cannot adjudicate on every case. I am not the court.
Dr. Henry: Has the Minister any idea—
Acting Chairman: Senator Jackman has indicated she wishes to ask a question.
Mrs. Jackman: In regard to the question I asked earlier, Senator Dardis seems to disregard the suicidal young woman that I gave as an example, but the Minister said he believes the DPP will take that particular situation into account.
Mr. Martin: With respect, that is not a fair question. I am not the DPP or the Judiciary.
Mrs. Jackman: I know that but the Minister is giving us no comfort because the whole reason—
Mr. Martin: Any case only exists—
Mrs. Jackman: The reason we are discussing this issue now and that there is a referendum and legislation is specifically the X and C cases. I find it extraordinary that they are not being considered here and that the Minister is not even giving the commitment—
Mr. Martin: They are.
Mrs. Jackman: The Minister said he cannot give a commitment and the DPP may not see eye to eye. A distinction should be made there. Senator Dardis does not appear to take the woman into account, but to think more in terms of the person running an abortion clinic in this country or aiding and abetting in that regard. That is why Senator Henry wanted the definition. We were not talking about 60 and 70 year olds but young girls for whom this whole issue has arisen. That is the context in which the people will view this referendum. They will see it in the context of the X and C cases and they will ask if such young girls will be criminalised. That is how it will be interpreted unless we get something more specific.
Dr. Henry: I did not think the office wanted to specificate. This has been pointed out to me by people in clinics in England who looked at this legislation.
Mr. Martin: I cannot adjudicate on individual cases.
Dr. Henry: Has it been considered by the Minister's Department? Did he think about these types of cases when framing the legislation? Did  he think of the problem where a person takes half the medical abortifacient in England and the other half on return here. This is a practical problem.
Mr. Martin: Would the person be careless on the way back?
Dr. Henry: Yes. What if she was asked where she took them? Will we ask people to tell lies?
Mr. Martin: One could go on and on and take every conceivable case. We can only write law that has some practicable application.
Dr. Henry: People in England would happily let people come back to England with the tablets and there would be no trouble about it.
Ms Keogh: With regard to the point made by Senator Henry, it might be helpful if I gave an example of another case I used before. I cited the example of a young girl who went to England for an abortion. Unfortunately, something went wrong and after she returned home, she started to haemorrhage badly. This was two months ago when there would have been much discussion about this legislation. The poor child went into a Well Woman Centre because she was afraid to go to her GP or to hospital. It is the first time this has happened. Her concern was that the Garda should not be called. The child was terrified that would happen. Following on from the point made by Senator Henry, if somebody goes to England for an abortion and haemorrhages after returning, is she all right because the procedure took place there, despite the fact that something has gone wrong? There will be these grey areas.
Mr. Martin: In accordance with this law, she would not have committed an offence. That young person would not have committed an offence in the context of this Act because it specifically states “in this State”.
Ms Keogh: If she took the abortifacient—
Mr. Martin: I take the Senator's point that the person would require post abortion counselling and assistance. That will be provided by the Crisis Pregnancy Agency. One of the functions of the agency is to help people in that position. Studies show that they do not come back to GPs.
Ms Keogh: They probably think they are criminals now.
Acting Chairman: This matter has been debated.
Mr. Costello: I wish to make a brief point in regard to the 1861 Act. Much legislation was passed prior to the foundation of the State which has not been repealed. Therefore, it is not correct  for the Minister to say that successive Governments have presided over the situation. There has been an omission in not addressing legislation that was passed in the last century. There is plenty of legislation on the Statute Book that has fallen into disuse. The Minister has updated the provisions in this area by means of a constitutional amendment and, in the process, he has introduced legislation which has the effect of criminalising women and children. At the same time, activity will take place elsewhere where no criminalisation is involved. That is at the heart of the hypocrisy of what is being done deliberately now.
Cuireadh an cheist, “Go bhfanfaidh an figiúr a thairgtear a scriosadh”, agus faisnéiseadh go rabhtas tar éis glacadh leis.
Question, “That the figure proposed to be deleted stand”, put and declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
Mr. Ryan: Tairgim leasú a 21:
I leathanach 9, idir línte 40 agus 41, an méid seo a leanas a chur isteach:
“(5)In aon ionchúiseamh i leith ciona faoin alt seo ina gcruthófar go bhfuil taifead scríofa déanta agus sínithe ag lia-chleachtóir, ar taifead é a airbheartaíonn a bheith ina thaifead ar an tuairim dá dtagraítear in alt 1(2), toimhdeofar, mura gcruthófar a mhalairt, gur thuairim réasúnta í an tuairim sin ar tháinig an cleachtóir sin uirthi de mheon macánta agus a d'fhéach don ghá a bhí ann beatha dhaonna gan breith a chaomhnú.”
I move amendment No. 21:
In page 8, between lines 38 and 39, to insert the following:
“(5)In any prosecution for an offence under this section where it is proved that a written record purporting to be a record of the opinion referred to in section 1(2) has been made and has been signed by a medical practitioner, that opinion shall be presumed, unless the contrary is proved, to have been a reasonable opinion, formed in good faith by that practitioner, which had regard to the need to preserve unborn human life.”
Dr. Henry: Can we discuss section 2?
Mr. Ryan: We cannot deal with it because of the peculiarities. I presume we will come back to  the Schedule when we have dealt with all the amendments.
Dr. Henry: I am sorry about that.
Mr. Ryan: My understanding is that we have to deal with all the amendments to the Schedule before we can talk about the Schedule. It is a peculiar way of doing things.
Amendment No. 21 deals with the offences we have discussed. It states that where there is a prosecution for an offence under this section – procuring or aiding or abetting – and where it is proved that a written record purporting to be a record of the opinion, as in the requirement under section 1(2) that a doctor had formed the appropriate opinion and taken the steps necessary, that opinion shall be presumed, unless the contrary is proved, to have been a reasonable opinion formed in good faith. Where there is a record showing that a doctor attempted to follow the procedures and arrived at a conclusion, he or she should not have to prove it.
It should be the requirement of the prosecuting authorities to prove the contrary. In other words, because of the existence of the document, as the amendment states, it “shall be presumed, unless the contrary is proved, to have been a reasonable opinion, formed in good faith. . . ” A doctor should not have to go into court and prove that he or she formed that opinion if there is evidence to show that he or she acted in reasonable good faith. The amendment provides that where a document exists that would be sufficient to lead to a presumption that the doctor was behaving properly unless we have some suspicion that the doctors of the nation will get involved in a conspiracy to run abortion clinics.
Mr. Martin: We consulted doctors and obstetricians in relation to how this might apply. Broadly speaking, they are satisfied that section 1(2) is an improvement on the current legal situation which they feel is somewhat uncertain. This amendment, in essence, proposes that in the event of a prosecution for an alleged breach of the law regarding abortion, a written record of a doctor's reasonable opinion under the Act shall be presumed, unless the contrary is proved, to have been made in good faith and with regard to the need to preserve unborn human life.
My advice is that the amendment does not take account of the reality of criminal law where a presumption of innocence applies in any case and proof beyond reasonable doubt is required for a person to be found guilty of an offence. That presumption of innocence is in criminal law. Presumption of innocence applies and a case has to be proved beyond reasonable doubt before anybody can be found guilty of an offence.
Acting Chairman: Is the amendment being pressed?
Mr. Ryan: We have not discussed it properly yet. All we have had is a preliminary skirmish so let us not get carried away.
Acting Chairman: Does the Senator anticipate that?
Mr. Ryan: A skirmish? It would be improper of me to anticipate the Chair on any issue.
I know that criminal law says that people are innocent until proved guilty, but this is a delicate area for the medical profession. There is no argument against including this explicitly to reassure medical practitioners that there will not be a witch hunt conducted against them and that as  long as they operate according to laid down procedures, they will be immune from prosecution. It is an extra level of reassurance.
I accept that given the open nature of our legislation, particularly post the X case, many doctors would find the provisions of section 1(2) an improvement on the uncertainty that was there. If such prescriptions are made, it is a good idea to clarify that those left at the cutting edge of these decisions are reassured. That is what the amendment proposes.
Cuireadh an leasú.
Ó Fearghail, Seán.
Tellers: Tá, Senators Costello and Ryan; Níl, Senators T. Fitzgerald and Gibbons.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
An Cathaoirleach: I want to announce a correction to the Irish text of amendment No. 22, “líne 43” should read “líne 44”. Amendment No. 23 is an alternative to amendment No. 22 and, therefore, they may be taken together by agreement.
Mr. Ryan: Tairgim leasú a 22:
I leathanach 9, líne 44, “dhéanamh.” a scriosadh agus “dhéanamh; ach féadfar a chinneadh gurb ionann mainneachtain ag lia-chleachtóir gníomhú ar mhaithe le leas a othair nó a hothair agus mí-iompar gairmiúil.” a chur ina ionad.
I move amendment No. 22:
In page 8, line 41, to delete “act.” and substitute “act; but the failure of a medical practitioner to act in the best interests of his or her patient may be held to constitute professional misconduct.”.
I fail to see how what is meant to be a proposal to preserve the right of a woman to receive a medical procedure necessary to prevent a real and substantial risk to her life, which is what this Bill is supposed to ensure, is consistent with the proposal in subsection (3) that “Nothing in this Act shall be construed as obliging any person to carry out any medical procedure referred to in section 1 of this Act”.
I do not understand how we can give medical practitioners the right not to do something they do not want to do while at the same time telling women that they have the right to whatever procedures are necessary to protect their lives. Our amendment suggests that the failure of a medical practitioner to act in the best interests of his or her patient may be held to constitute professional misconduct. I would not be in favour of a clause which might have some pretences to be about conscience and which could be used to protect  doctors who were negligent in looking after their patients' interests.
Dr. Henry: This section causes me great concern because coupled with the fact that the terminations can only take place in an approved place, a situation could arise whereby someone could be brought to an approved place and find that no one was agreeable to undertake what is a legal procedure. There is nothing in the Bill to the effect that someone has to be made available to treat the person or that a person must declare his or her position on what are legal, life-saving procedures when applying for employment. Nor is there anything in the Bill to the effect that when doctors take on these patients, they have to tell them that they will not perform legal, life-saving procedures. That is in direct conflict with the Medical Council guidelines published in 1998. I understand there is to be another publication shortly, but it has not yet been finalised so we must go on the 1998 guidelines.
For example, in section F – Reproductive Medicine, under The Child in Utero, the guidelines state: “Refusal by a doctor to treat a woman with a serious illness because she is pregnant would be grounds for complaint and could be considered to be professional misconduct.” I would have thought that section allows people to flout that guideline because in a life-threatening situation doctors can say they have a conscientious objection to carrying out the procedure, and there is no onus on that person to find another doctor to treat the patient. There is nothing in the section to the effect that there is an onus on the hospital to ensure someone is always on duty to deal with such cases.
In Section B – Doctors and Patients, under Maternity Care, it states: “Registered medical practitioners who agree to undertake the antenatal and delivery care of a woman should clearly inform her at the time of booking about the arrangements for delivery.” If a woman is in a life-threatening situation and this person decides that he or she has a conscientious objection to doing anything which may terminate the pregnancy, should they not be obliged to inform her at the time of booking? This is a very loose section and I foresee women's lives being put in danger again. It is not impossible to find doctors who will refuse to become involved in certain forms of treatment, and I understand the reason they should be allowed to opt out, but some provision should be inserted in the Bill to the effect that they have to inform their patients and those employing them so that provision can be made for these patients.
The Minister may remember the situation that arose a number of years ago where a general practitioner in the west of the city refused to prescribe the pill even though she had a large GMS  practice, and it was impossible for her patients to go anywhere else. That doctor could not be made prescribe the pill, but neither could she be made refer those people to someone who would prescribe it. Ethically one should do that. There are many doctors who will not prescribe, say, the morning after pill, but all those whom I know refer patients to someone who does prescribe it.
This is a very difficult situation and we need to work out the way it will apply in practice. What if someone who is bleeding profusely goes to an approved hospital but there are not the teams of people mentioned by Senator Fitzpatrick to take care of her? What if there is only one person on duty and that person decides to conscientiously object? Nothing will be done for that patient, but the hospital will not have had any prior knowledge that this person would claim to be a conscientious objector. Certainly those bringing the patient to the hospital will have no knowledge of it. This section is too loose and the doctors have to be reminded that they have an ethical duty not just to their patients but to society in general and indeed to the profession.
Mr. Costello: With her medical expertise, Senator Henry has hit the nail on the head once again. What we have here is an opt-out clause. We have defined three areas including “medical practitioner”, who will carry out a medical procedure in an approved place, but we are saying that the person who is employed in that approved place for that medical procedure will not have to carry out that procedure. Why do we have approved places? Why define “medical practitioner” and the medical procedure if we are not obliging the person employed to carry out the procedure to do so? Is there some hidden meaning in the expression “in person”? Why is “any person” mentioned? According to the Bill, the only person who can carry out the medical procedure is a medical practitioner. Why is that not stated in the Bill? Why is it left out?
Mr. Martin: Or to assist.
Mr. Costello: Where is “or to assist” in the Bill?
Mr. Martin: In the second line.
Mr. Costello: It states that nothing in this Act shall be construed as obliging any person to carry out any medical procedure referred to in section 1 of this Act.
Mr. Martin: The Senator does not have the up-to-date version of the Bill. On Committee Stage in the Dáil we amended the Bill to cover people assisting a medical practitioner, that is, a nurse or midwife who would assist a medical practitioner in such a procedure. If we were to extend the con scientious objection to doctors, one would have to apply it to all those assisting in that procedure.
Mr. Costello: It is “or assist”. What is the reason for that?
Mr. Martin: That is why we are including “or person”.
Mr. Costello: It states: “. . . shall be construed as obliging any person to carry out, or to assist in the carrying out of . . . ”. So it would also include the medical practitioner. It includes a midwife or a nurse, but it also includes a medical practitioner.
Mr. Martin: The Senator asked why the word “person”—
Mr. Costello: Yes, I thank the Minister for that, but that does not take from the argument as to why the medical practitioner who will carry out the medical procedure is not obliged to do so. That is the nub of the issue because of the manner in which the Minister has gone to such detail in prescribing the exact person and place in which the procedure will be carried out. There is a general opt-out clause for those supposed to carry out the procedure. The Minister cannot allow those employed for this purpose to act on a whim. They should have to abide by best medical practice and the Hippocratic oath to save a person's life. They will carry out the medical procedure in an emergency where there is a real and substantial risk to the mother's life, yet an opt-out clause is included under which the woman concerned could be left high and dry and in danger of losing her life. A penalty should be imposed on anybody who does not proceed in this fashion.
Mr. Dardis: Twelve years.
Mr. Costello: If somebody acts in this fashion, a woman's death could result. That is a reasonable conclusion if nobody else is available to carry out the procedure. This situation could arise in the middle of the night. Can people be employed if the purpose is to ensure such medical procedures are carried out? It is difficult to comprehend the provision. The Minister has serious problems in this regard. He should examine the provision overnight and consider accepting one of the amendments tomorrow.
Mr. Lydon: The amendment should be rejected. Even in pagan Britain opt-out clauses are provided for nurses and other medical personnel who may not want to assist in a procedure that is against their personal ethics. Doctors must be given such an opt-out. What medical emergencies would require this to happen immediately? An opt-out clause must be provided. Everybody can be a conscientious objector in some cases,  including doctors and nurses. It was forgotten in the debate on earlier amendments that two people are involved, the medical practitioner and the unborn child. If somebody does not want to destroy an unborn child, he or she must be able to avail of an opt-out clause.
Ms Keogh: The Senator means that person does not want to save the life of the mother.
Mr. Lydon: No, I mean the life of the child.
Mr. Norris: It is a pity that my friend, Senator Lydon, used the phrase “pagan Britain”. It is so fatuous at this stage of the night. We deserve a little better. We have had it a couple of times from the Government benches. Let us grow up and forget this racist nonsense.
Mr. Martin: The nub of the issue is whether we want to legislate for the ethical guidelines of the Medical Council. That is at the heart of both amendments. Amendment No. 22 seeks to add a provision whereby the failure of a medical practitioner to act in the best interest of his or her patient may be held to constitute professional misconduct. This seeks to bring elements of the Medical Council's ethical code for doctors into the legislation. These require that if a doctor for ethical reasons is not in a position to treat a patient, he or she must arrange to refer the patient to a colleague who will provide the treatment required.
Amendment No. 23 again proposes to add to the conscientious objections provision by inserting the words “any medical practitioner must act in accordance with his or her ethical obligations.” I accept the Senators' objective in tabling the amendment is undoubtedly to seek to ensure a doctor should not use this provision as a basis for withholding treatment from a patient where there is no colleague available to provide the care required, but this is in accordance with the current ethical guidelines of the Medical Council. In other words, under its ethical guidelines which govern registration, misconduct and so on, a doctor is obliged to refer the patient to another doctor who will carry out the necessary treatment.
There are other potential difficulties. Senator Henry pointed out that ethical guidelines change. I have a difficulty incorporating them in legislation, particularly that which will enjoy constitutional protection, and linking the legislation with the current ethical guidelines of the Medical Council giving them the automatic protection of law. That is not appropriate because guidelines can change over time. That is the reason we have introduced this combination of a constitutional amendment and legislation. If at a future date the ethical guidelines were amended in such a way that they were not in keeping with the spirit of  the legislation, the effect of the amendments would be to create an inherent contradiction.
With regard to Senator Costello's contribution, we do not live in a totalitarian state and there must be room for conscientious objections on issues of fundamental ethical concern. This also applies in regard to blood transfusions on which certain religious groups hold particular views such as Jehovah's Witnesses. Senator Henry acknowledged in her contribution that this is a difficult area. One cannot cut off the right of a person to have a conscientious objection. That is not her intention.
Dr. Henry: I have no problem with people being conscientious objectors. I hope it would be a rare occurrence where a doctor would be a conscientious objector to saving the life of someone in a life threatening situation.
Mr. Lydon: Hear, hear.
Dr. Henry: This issue relates to life threatening situations, not socio-economic abortions. This is a serious issue. There is an absolutely appalling problem in the State in regard to malpractice suits. The situation is so bad that St. Paul's Medical Indemnity Society is refusing as of today to insure any more medical practitioners or hospitals in Ireland. It stated it would fulfil its current obligations. We are in a dire position regarding medical indemnity and there will be a major temptation for people to say they are conscientious objectors. Senior consultants must make sure they take on the more difficult cases, but I do not know what will happen if approved places are spread over a wide area.
Mr. Martin: The Senator is making the case for approved places in one sense. The concept behind them is that there would be a strong senior multidisciplinary in them which would have all the necessary expertise, equipment and facilities.
Dr. Henry: It is not provided that at approved centres a doctor must insist that someone is on duty who will cope with these medical procedures. There is no provision in the legislation to ensure somebody will cover them. The provision is loosely worded. I am not making the case for approved places because it would be worse if women went to an unapproved centres as people would be wise to become conscientious objectors as quickly as possible.
Ms Keogh: I accept people can be conscientious objectors. I would be the last person to suggest they could not do so. The legislation states: “Nothing in the Act shall be construed as obliging any person to carry out a medical procedure.” I agree with the Minister that we cannot legislate for ethical guidelines as they are laid down by the  Medical Council and they may change. He is not then allowing for referral where someone is a conscientious objector so that a woman can get the treatment she needs, which is a point raised by Senator Henry. It is not against conscientious objection but to ensure that there is a referral so that in a life-threatening situation a woman's life will be saved.
Mr. Norris: On balance, I favour Senator Henry's amendment. Senator Ryan's opens the way to compensation cases, a matter which has bedevilled the medical profession. I am glad she elaborated on this point. If one is saying that the failure of a medical practitioner to act in the best interests of his or her patient may be held to constitute professional misconduct, which is probably the case anyway, one is almost inviting compensation cases by patients who feel that they were not treated appropriately. I hope that it will be put to a vote soon if we are to vote.
Tarraingíodh siar an leasú faoi chead.
Amendment, by leave, withdrawn.
Níor tairgeadh leasú 23 go 26 go huile.
Amendments No. 23 to 26, inclusive, not moved.
Mr. Ryan: Tairgim leasú a 27:
I leathanach 11, línte 21 go 23 a scriosadh agus an méid seo a leanas a chur ina n-ionad:
“(5)I gcás go mbeartaíonn an comhalta den Rialtas lena mbaineann ordú a dhéanamh, cuirfidh sé nó sí faoi deara dréacht den ordú sin a leagan faoi bhráid gach Tí den Oireachtas agus ní dhéanfar an t-ordú go dtí go mbeidh rún ag ceadú an dréachta rite ag gach Teach acu sin.”.
I move amendment No. 27:
In page 10, to delete line 22 to 25 and substitute the following:
“(5)Where the member of the Government concerned proposes to make an order, he or she shall cause a draft of that order to be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.”.
Given the sensitivity of these issues, I do not understand why there is no requirement for positive approval by the Houses of the Oireachtas.
Mr. Martin: There is. I think that this is a repeat of an amendment that was taken in the Dáil.
Mr. Ryan: The Minister may be correct as I had  difficulty in getting a copy of the Bill as passed by the Dáil.
Mr. Martin: During the Dáil debate, Deputies expressed concern about the provisions in section 5(4) of the envisaged Act and they considered that there should be a provision for a higher level of parliamentary scrutiny of ministerial orders given under the Act. Having considered this, I introduced a similar amendment which has the effect of the Senator's.
Mr. Ryan: I trust the Minister will accept my apologies.
Tarraingíodh siar an leasú faoi chead.
Amendment, by leave, withdrawn.
Níor tairgeadh leasú 28 go 30 go huile.
Amendments Nos. 28 to 30, inclusive, not moved.
Tairgeadh an cheist: “Gurb é an Dara Sceideal an Dara Sceideal a ghabann leis an mBille.”
Question proposed: “That the Second Schedule be the Second Schedule to the Bill.”
Mr. Ryan: I regret if anyone believes that I unnecessarily delayed the House. It was not my intention. The record will show that I was not the most voluble contributor to this debate. However, I must raise one more matter. There are many definitions in the legislation, but the womb is not defined. Senator Henry procured the only medical dictionary in the Library of the Oireachtas and the word is not in it although the word “uterus” appears.
Senator Henry assures me that the ordinary understanding of the word “womb” includes the fallopian tubes, which raises the question of ectopic pregnancy. Such pregnancy is regularly terminated by medical intervention. It occurs after implantation as fertilised embryos can be implanted in the fallopian tubes. Modern practice involves their removal. Will the Minister reconsider what is meant by womb in this context? If it is the ordinary medical understanding, it might involve the fallopian tubes which would mean that the current practice for dealing with such pregnancies would be prohibited.
Dr. Fitzpatrick: An ectopic pregnancy is a pregnancy outside the womb. Measures must be taken to protect the mother's life and they are always taken without equivocation in that case.
Mr. Martin: I accept what Senator Fitzpatrick said. We are talking of pregnancy in the womb and that does not encompass the fallopian tubes. An ectopic pregnancy, for the purposes of this Bill, is a pregnancy outside the womb.
Dr. Henry: As I stated on Second Stage, I object to the definition of abortion. I know that we can define things as we wish for a Bill, but this definition is unfortunate. I have not seen a definition of abortion without an end point, that is, that did not stop at viability. I am happy with the start, that is, at implantation, but there is a loosening of language from then on. No termination of a pregnancy which takes place after the child is viable could be considered an abortion. I am surprised Senator Lydon, among others, did not object to this. The word “abortion” is used too loosely throughout the world, which is why I object to it. It is bad enough in legislation but I am sorry to see it in the Constitution.
Mr. Martin: Is the Senator seeking a timeframe?
Dr. Henry: After the child is viable, it is not abortion. The word “viability” should always be used with abortion so that people know what is meant.
Mr. Martin: Medical science has evolved, as the Senator knows, and we are now down to 25 weeks.
Dr. Henry: That is why we use the word “viability” without giving a date. It is an important concept which I regret is not being included in the Constitution.
Mr. Martin: Very well.
Cuireadh agus aontaíodh an cheist.
Question put and agreed to.
Cuireadh an cheist, “Go bhfanfaidh alt a haon mar chuid den Bhille,” agus faisnéiseadh go rabhthas tar éis glacadh leis.
Question, “That section 1 stand part of the Bill,” put and declared carried.
Níor tairgeadh leasú a haon.
Amendment No. 1 not moved.
Cuireadh an cheist, “Go bhfanfaidh alt a dó mar chuid den Bhille,” agus faisnéiseadh go rabhthas tar éis glacadh leis.
Question, “That section 2 stand part of the Bill,” put and declared carried.
Aontaíodh an Teideal.
Title agreed to.
Tuairiscíodh an Bille gan leasuithe.
Bill reported without amendment.
An Cathaoirleach: When is it proposed to take Report Stage?
Mr. Cassidy: This morning.
Tairgeadh an cheist: “Go dtógfar an Tuarascáil inniu.”
Question put: “That Report Stage be taken today.”
An Cathaoirleach: I understand the division bells are not working. I suggest that we postpone the vote until the morning.
Mr. Manning: In deference to you, a Chathaoirligh, I agree.
The Seanad adjourned at 3.45 a.m. until 10.30 a.m. on Thursday, 13 December 2001.
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