Dr. Simon Mills:

With regard to viability and time limits, I agree with Ms Staunton that the strict construction of Article 40.3.3° as interpreted in the X case does not include time limits. I can also see that in drafting legislation that would attract general support and still not be unconstitutional there might be certain types of termination not expressly covered by the X case judgment for which time limits might be appropriate. I do not want to put it any further than that. It is something that is almost germinating in my head as I have been sitting here having this very helpful discussion, bearing in mind the submissions of Ms Schweppe and Ms Staunton. It is something I would be happy to return to in future discussions of the draft Bill.

Senator Van Turnhout also mentioned the question of treating suicide differently. I largely agree with Ms Staunton that as a matter of broad principle there is no distinction to be drawn between a threat to the woman's life by reason of the continuation of her pregnancy as a medical or as a psychiatric matter. Two distinctions, however, need to be drawn. This is one of the reasons I treated suicide separately in the draft Bill.

First, the required specialisation of the doctors making the assessment must necessarily be different. Someone touched on this earlier. Do we want obstetricians deciding on the psychiatric well-being of women? No, we do not, any more than we want neurosurgeons deciding on the viability of pregnancy. That is how one would deal with that. One has different and appropriate experts.

The second way in which one might treat it differently, and which I offer tentatively in the draft Bill, goes to the difficulties in suicidality which have been identified across witnesses, which is that its presence or absence my be fluctuant. It may be there one day and not be there another. I tentatively suggest in the draft Bill that, as distinct from scenarios of medical emergency or crisis, it may be appropriate that assessments for suicidality be carried out on two separate dates.

Flowing from that and in reply to the question about rural hospitals where there may only be one doctor, I am reminded of what Senator Crown was saying earlier. If we assume that the opinion of two doctors is generally preferable to the opinion of one, should we put women who are in rural locations or in poorly resourced hospitals at an effective disadvantage? In drafting the issue of a serious and immediate threat to life, one may have to reflect on the question of the number of experts who would give an opinion where, for example, only one expert is available and in the view of that expert a termination, within the meaning of any available legislation, is necessary. Provision could be made, by way of regulation of the reporting or certification of any termination, for an expert to explain why a second opinion could not be obtained although it would normally be required under the Act. That is one possibility.

There was a more general question about the need for clarity and whether legislation would provide the kind of clarity doctors require for their work. I suggest that the Deputy read my draft Bill which I have provided to the committee. I hope it shows that clear, workable, sane and sensible legislation that will guide doctors in a way they can live with is not an unachievable norm. Doctors make life and death decisions every day.

The last question I was asked was an important one. Deputy Naughten asked if there was a difference between a foetus with a lethal abnormality who will suffer by reason of being born and a foetus who is delivered prematurely and must suffer as part of being delivered prematurely. There is an obvious moral and legal difference. The foetus born with a lethal foetal abnormality is being born solely to die. The foetus who is delivered prematurely with a view to effecting its survival is being born to a wholly different purpose. This seems to me to be a logical moral distinction.

To deal with the last point raised by Senator Crown and his disagreement on the meaning of Article 40.3.30, I hope it is clear to the committee - I will reiterate for Senator Crown - that this is not the three of us forming our view of Article 40.3.30, it is the three of us articulating the view of Article 40.3.30 formed by the Chief Justice in the Roche case.