Dr. Simon Mills:

I thank Deputies and Senators for inviting all of us to set out our views on the law relating to this matter. I have a slightly unusual background. For the purposes of a legal session, I wish to set out briefly my professional background and also the background on which my submissions are grounded. My submissions are somewhat different from those of Ms Schweppe and Ms Staunton, although I agree with almost everything both of them said. In fact, with regard to one of my views, I have been persuaded to change my mind on something, on which I suspect we may touch later. The step I have taken is somewhat unusual in that my written submissions include a proposed draft Bill for the termination of pregnancy in accordance with Article 40.3.30 and existing Supreme Court jurisprudence, including but crucially not limited to the X case.

I have been a practising barrister since 2002 and specialise in all areas of health care law. From 1997 to 2011, I was a practising doctor and for most of that time a part-time general practitioner in an urban setting. It may be helpful to the committee and the other Members present that during that time I dealt with a small but significant number of women who were seeking termination of pregnancy. I retired as a medical practitioner in 2011 and no longer practise medicine. As well as being a barrister and a doctor, I also completed an MSc in philosophical medical ethics. Presciently, my thesis was on the topic of legislating for abortion in a pluralist society.

I wish to comment briefly on the debate which has brought us here. For the purposes of the discussion which I hope is a dispassionate analysis of the law relating to the termination of pregnancy, I adopt no position, one way or another, on the question of abortion. However, I observe that, in general, public discourse on the question of termination of pregnancy - these hearings being a notable exception, judging from what I heard yesterday - very often frames the political and social debate as if it were a two-sided issue. In public discourse there is an apparent assumption that the only conversation to be had - one would always prefer to avoid the divisive terminology - is between the pro-abortion-pro-choice side and the anti-abortion-pro-life side. On this account of matters, it is assumed that "pro-life" means no more and no less than being opposed to abortion in all circumstances and that "pro-choice" means no more and no less than ultimately being in favour of abortion on demand.

I have always believed this is an inaccurate model and that views on abortion are far more complex than this type of simplistic analysis tends to suggest. The constant reinvigoration of this account of abortion, debates characterised by pro-life versus pro-choice arguments, has continually frustrated the attempts to move from rhetoric to resolution on the topic. A far more realistic account is that the debate is a three-sided discussion consisting of the strong pro-life position, the strong pro-choice view and the moderate position which attracts adherents from both the pro-life and pro-choice sides. If there is a majority view on abortion in this jurisdiction - I believe there is - I suspect it is that which frames the majority view on abortion in this jurisdiction that there is a substantial overlap between moderate pro-life and moderate pro-choice views.

I hope what I have done will assist the committee. I have drafted a termination Bill which I hope steers a middle course between constitutional proprieties and the needs of women in this jurisdiction. The draft termination Bill which I have prepared arose, first, from a need to clarify in my own mind what sort of legal regime would be permissible in Ireland, having regard to the Constitution; and, second, to establish whether such a regime was amenable to being drafted in compact and comprehensible legislation. There would be some irony in a situation where we came before the committee as lawyers to say politicians had to legislate without at least having given some thought to how such legislation might work. It can be guaranteed that, were politicians to draft unworkable legislation, we lawyers would be the first to pull it apart.

I hope my draft legislation will at least provide a template for discussion. I do not presume it amounts to any more than that, save for a number of points. First, I believe it accurately reflects the state of law in this jurisdiction, with one qualification relating to viability, about which the Bill, as drafted, may need some thought. I bear in mind in that respect the comments made by Ms Schweppe and Ms Staunton, with which, ultimately, I agree and think are not accurately reflected in the way the relevant section is drafted. Second, I believe the Bill provides the clarity that the medical profession has stated it requires. Third, I believe it provides many of the safeguards required by those who are sceptical of the need for any codification of law allowing for termination of pregnancy. In particular, in my reading of it and the opinion of those to whom I have showed it, there is no scope in the Bill for any scheme of abortion on demand. Fourth, I believe it meets the recommendations of the expert group in so far as it provides for the combination of legislation and regulations. Fifth, I believe it is a Bill to which all political parties which have called for the codification of law on termination can subscribe on the basis of their public pronouncements. Sixth, I believe it provides a clear basis for legal terminations within the scope of Article 40.3.30.

The draft Bill does not include anything to do with rape or incest, that is, pregnancy occasioned by illegal circumstances, because in my view Article 40.3.30 precludes this, save in the circumstances identified by Ms Staunton where, by reason of the pregnancy occasioned by legal circumstances, there is a threat of suicide. I adopt and agree with the remarks made by both Ms Schweppe and Ms Staunton on the question of legislation for suicide.

I will set out briefly the contents of the Bill. Sections 1 and 2 deal with a number of limited preliminary matters, including certain definitions. In section 3 the legal position relating to the 1861 Act is restated in modern language, with alterations to the length of custodial sentences, in line with the last referendum on the question of abortion and the draft Bill contained therein. However, having restated the legal ban on abortion, the Bill sets out a number of clear exceptions under which a termination will not be unlawful under the restatement of the 1861 Act.

In section 4 the first exception is the scenario where termination arises as a consequence of other medical treatment. Sections 5, 6 and 7 deal with the question of the real and substantial risk to life, including the threat of suicide. Section 7 specifically deals with the threat of suicide. It applies the same test Ms Staunton called for, albeit a test executed through a slightly different two-step process, in order to give assurance to those who have certain concerns about the threat of suicide.

Section 8 deals with termination of pregnancy in cases of inevitable miscarriage of a non-viable pregnancy. This was touched on by Ms Schweppe. Again, I agree with her view that the non-viable pregnancy comes within the remit of a permissible abortion within Article 40.3.30.

Section 9 deals with termination of pregnancy in cases of lethal foetal abnormality. I adopt and agree with the remarks of Ms Schweppe on that front.

Section 10 deals with the power of the Minister to make regulations as to the certification of medical opinions. All of the grounds I have set out would be certified on the basis of no fewer than two medical opinions, at least one of which must come from an appropriately qualified medical specialist.

Section 11 affords certain immunities to doctors acting in good faith under the Bill, consistent with the wish expressed yesterday by, among others, Dr. Mahony of Holles Street Hospital. It also imposes certain obligations on doctors to act in good faith.

Section 12 contains an express ban on the termination of a foetus that is viable, which I touched upon earlier. This section may need some modification in light of the submissions by Ms Schweppe and Ms Staunton, which I accept. Section 13, which should be read bearing in mind the comments by Dr. Mary McCaffrey before the committee yesterday, allows for conscientious objection on the part of doctors and, in certain circumstances, on the part of nurses. Section 14 provides for locations where terminations may take place, including the entitlement of the Minister to make regulations providing for such locations and for the reporting of terminations by such locations. Section 15 makes lawful the provision of any information relating to terminations which would be lawful under the Bill. Section 16 provides for certain penalties, while section 17 gives jurisdiction to the High Court to deal with disputes. Finally, section 18 repeals certain matters, most notably sections 58 and 59 of the Offences Against the Person Act 1861.

The draft Bill will not necessarily commend itself to the doctrinaire elements of either the pro-life or pro-choice groups, but it does, in my view, amount to a convincing first stab at a law built on a common ground and around a consensus. It is an attempt, made in good faith, to move the discussion on from rhetoric to resolution. I am happy to take any questions Members may have.