Dr. Simon Mills:

Perhaps Deputy Healy's final questions offer me a useful point from which to begin to reply to the totality of the questions. He asked what the current legal position is. Two aspects need to be considered when answering that question. The first aspect, which has already been addressed by Ms Schweppe and Ms Staunton, relates to what we know from the X case. That has already been set out. There is slightly more to be said about what we can reasonably infer from the text of Article 40.3.3°; from other Supreme Court decisions, particularly the Roche decision to which Ms Schweppe has already adverted; and from decisions of the European Court of Human Rights. The decision that was handed down in the case of D v. Ireland is one such relevant decision. In that case, the European Court of Human Rights found that the complaint was not admissible but made certain pertinent observations in relation to cases of lethal foetal abnormality.

There are things we can infer from the state of law in general. For two reasons, it is a mistake to confine our consideration of this matter to the X case, notwithstanding the terms of reference of this group. The first reason, which has already been identified by Ms Staunton, is that the X case was about X. That is all it was about. That is all the court was asked to decide. One might wonder what the courts would have decided if some recent cases in this jurisdiction had come before them. If they had, we would be talking not only about X but also about E, F and G. It is simply a fact of our proximity to the United Kingdom that more cases have not come before the courts. In my view, such cases would amply identify the number of circumstances in which terminations are permissible within the meaning of Article 40.3.3° and in a manner that is consistent with existing Supreme Court and High Court jurisprudence. That is the second limb. The first limb relates to what we know from Article 40.3.3° and from the X case. The second limb relates to what we can infer.

Among other things, we can infer from the Roche decision and, in particular, from the judgment of the current Chief Justice, Ms Justice Denham, that the meaning of life in a constitutional sense - I am sure the committee will hear more about the meaning of life from the church leaders tomorrow - relates to the capacity to be born alive. That is the basis for my decision to include two specific provisions in the draft Bill I have prepared. The first provision would apply in the case of the inevitable miscarriage of a non-viable foetus. When I say "non-viable", I mean incapable of surviving by reason of its prematurity. The second provision would apply in the case of a lethal foetal abnormality. In this case, I refer to a foetus or embryo that is incapable of surviving outside the womb. Unfortunately, I have to agree with Ms Staunton and Ms Schweppe about the foetus - or baby, once born - that will survive for a few moments outside the womb. I have to say I think there is something disturbingly utilitarian about Article 40.3.3° in that it comports an obligation to be born, only to suffer and die where the wish of a caring, prudent and loving parent might be for a different outcome. However, I do not think that is a matter for this committee to consider.

Like Ms Schweppe and Ms Staunton, I think the best of the options outlined in the expert group report is the last of the four that were proposed and recommended; namely, a combination of legislation and regulation. That is why the draft Bill I have prepared for the assistance of the committee provides for legislation setting out a broad framework and providing for the Minister to be entitled to make certain regulations in relation to certain aspects of the operation of the Act for its smoother and better operation and to respond to any exigencies that may arise.

The question of conscientious objection is clearly set out in the Medical Council guidelines. However, I think it requires express statutory provision. This is specifically provided for in the draft Bill that I have furnished to the committee. I deal with conscientious objection in that Bill in two ways. The termination of a pregnancy under that Bill or any Bill will be a two-step process, firstly involving the provisions of opinions that are sufficient to ground a lawful termination and secondly the performance of the termination itself. With regard to the first element of that process, my Bill requires that opinions must be provided by a registered medical practitioner, who has a right of conscientious objection subject only to an obligation to refer the person in question to another registered medical practitioner who is prepared to provide an opinion. Of course the Bill does not set out an obligation with regard to what that opinion must or should contain.

The second element is the performing of terminations of pregnancy. I maintain that any registered medical practitioner, nurse or midwife who has a conscientious objection to participation in the performance of a termination of pregnancy should be entitled to refuse to participate. I do not provide an obligation in the Bill to refer the person on, but I note the comments and the view of Professor Kieran Murphy of the Irish Medical Council and that of the council on the question of conscientious objection. Further, conscientious objection will not operate to allow a registered medical practitioner, nurse or midwife to refuse to participate in treatment that would be necessary to save the life of a pregnant woman.

The final area to deal with is the question of lethal foetal abnormality. It flows from what I have already said about what we can reasonably infer that I row in behind Ms Schweppe and Ms Staunton on the question of lethal foetal abnormality. Where there is no capacity to be born alive then Article 40.3.3° does not confer a constitutional right to life. It does not lessen the moral seriousness of a termination. It does not lessen the values we may hold about the question of termination. However, it does tell us what the Supreme Court has told us, that is, such foetuses or embryos do not attract protection under Article 40.3.3° and, as such, a Bill that provided for the termination of an inevitable miscarriage or non-viable pregnancy or which provided for termination in scenarios of lethal foetal abnormality would be permissible under Article 40.3.3°.