Mrs. Justice Catherine McGuinness:

There have been a number of questions and I will try to deal as quickly as I can with as many as I can. With regard to the Medical Council, I simply do not know whether the council extended its circumstances.

I do not have the expertise to answer that question.

I was also asked what the judgment in the X case would have been if Article 40.3.3° had not been included in the Constitution arising from the 1983 referendum. Obviously, I do not know what it would have been. It may not have been all that different. It is obvious that I cannot answer that question.

It is important to answer the question about the protection of doctors and Deputy Mitchell O'Connor's question about repealing the 1861 Act. I think we should repeal it. There needs to be a protection of some kind to deal, for example, with the question of someone who is running an illegal abortion factory. Some area of the criminal law would have to deal with that. We do not need it to have been framed in 1861. We do not necessarily need penalties of the level provided for in the Act in question. I think doctors are worried about it. They probably know that the Director of Public Prosecutions is not watching every doctor and waiting to prosecute, but there is a worry in the back of their minds. It is possible that the kind of negligence regime mentioned by Professor Binchy, which already exists in civil cases, is a reasonable approach. I would go along with that to a large extent. At the same time, some level of criminal sanction for someone who deliberately engineers illegal abortions needs to be maintained as well. Perhaps that is what we would have, to a much greater extent, if we were not beside what one Deputy referred to as the "old enemy".

Senator van Turnhout also mentioned our proximity to the United Kingdom. Perhaps she was right when she suggested that we do not necessarily need to specify the nature of the threat to life. It is interesting that in his judgment in the X case, the Chief Justice specifically said that he felt:

The Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with .... persons who are dependent upon her and her interaction with other citizens and members of society .... Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother's right to life.

That is a general statement. It is not about suicide. I think it deals with the question of cancer and other serious illnesses that was raised here. If the risk to the life of the mother has to be immediate, it "insufficiently vindicates the mother's right to life". Many of these questions are discussed in the judgment, discredited and all as it may be.

Deputy Mattie McGrath asked about the separation of powers. Of course we have the separation of powers. While the Judiciary does not "direct the Oireachtas" on the legislation it should enact, it can point out that legislation is needed in a certain area. This does not just apply to the abortion area. It applies to lots of other areas as well. The courts have often said that clarity of legislation is required in a certain area having been asked to make decisions with regard to that area. The job of making such decisions should, under the separation of powers, be done by the Oireachtas rather than by the Judiciary. That is precisely why Mr. Justice McCarthy said in 1992 that the failure to legislate over the previous eight years was inexcusable.

Reference was made to the need for clarity and we were asked who we are answerable to. I think I have more or less dealt with the various referendums. If we are to have any more referendums, we should put various options before the public rather than simply asking the people whether they want X or Y. That is important. There are other views that could be reflected in the way the public votes.

I would like to respond to the floodgates question that was asked by Deputy Mitchell O'Connor. It is in the hands of members to act on the way things are at the moment. It does not look to me that the very limited kind of legislation that will be introduced if the judgment in the X case is followed could possibly open any floodgates. If members are worried that the inclusion of the suicide ground will lead to a move in that direction, they should try to ensure the Oireachtas sets up a strong and difficult gateway, which would need convincing medical evidence, in the outline legislation and the regulations thereunder. It is really up to the Oireachtas. Protocols and standards are all very fine, but they are not enough when it comes to the crunch in front of the courts if the law is needed. Professor Binchy said that everyone feels for the circumstances of the pregnant woman. Of course we all feel for the circumstances of the pregnant woman, but we also need to do something about them. I think I have covered the list of questions, by and large.