Mrs. Justice Catherine McGuinness:

I thank the Chairman and committee members. I am very much honoured to be asked again to discuss the questions arising out of the heads of the Bill. I noted in the letter the Chairman sent inviting me that witnesses were asked to discuss the actual heads of the Bill and go through them rather than go back over the same arguments we had the last time. I am disappointed to find we are going through the same arguments about picking over the analysis of the X case. As I made very clear the last time I was here, my strong belief is the decision in the X case is the law of the land and it is necessary to introduce legislation.

Professor Binchy stated we have a range of options. This comes a bit strangely from the mouth of someone who, since 1983, has been trying to reduce the range of options available to legislators to deal with the question of abortion by the very introduction of the amendment in 1983 which, for instance, means one cannot legislate for the question of what happens in the case of rape which is, according to present opinion polls, approved of by 75% of the Irish people, and which may indeed be more easily dealt with than the question of suicide, which is a complicated question, as I perfectly well acknowledge.

We also see the point made by Archbishop Diarmuid Martin and again by Dr. Binchy about the dangers of late abortion. It brings the whole question of abortion into a human rights area. Where one puts it into the Constitution one creates this question of constitutional rights of the unborn and the constitutional rights of the mother. The arguments can be very readily made that one cannot put a time limit on constitutional rights and the Government is probably right in saying this. Therefore, one cannot do what Dr. Martin suggests in the last line of his letter is done in other jurisdictions; one is not free to introduce a time limit.

We must remember when we speak about a range of options that this range of options is dealt with by what happened in 1983 much more than merely the Supreme Court's interpretation of what happened in 1983 in the X case. I should state when giving evidence here I am a member of the working group established by the standing committee of the General Synod of the Church of Ireland which has already made written submissions to the committee and I am in general agreement with these submissions.

I appreciate and entirely agree with what Mr. Callanan stated about the legal interpretation of the X case and the fact it is the law of the land. The Government is constitutionally constrained to bring forward this legislation, and in framing the general scheme of the legislation. By and large I am in general support of the heads of the Bill as set out and it appears they are consonant with the provisions of the Constitution as interpreted in Attorney General v. X and Others.

As I stated in my previous oral evidence, I see myself as expressing the middle ground in the debate which has surrounded the proposed legislation, and therefore I do not stand for either extreme side in the argument.

On the whole, the heads of the Bill have been carefully drafted to try to provide for the termination of a pregnancy where it is constitutionally permitted and to clarify the position of medical personnel. I can deal with other aspects in more detail later, but I wish to make a number of remarks.

I am disappointed that the definition of the unborn and the way in which heads 2 and 3 are drafted do not allow for the situation of the foetus that is incapable of independent life, where the mother may have to continue the pregnancy of nine months knowing that the child is dead within her or will die almost immediately upon birth. In D v.Ireland 2006, the State asserted that there was a reasonable chance that termination would be allowed in such cases. It should be allowed for in the legislation.

I have a concern about the reference to the general practitioner. I understand that, while it may be desirable to refer to the woman's GP, that it is "shall refer" apparently means that a reference to the GP and discussion of the woman's position can be done without her consent. In all medical situations, it is important that a person should give consent before her or his medical records can be discussed with a third person. This issue should be considered. Perhaps a substitution of "may" for "shall" would be sensible.

Head 4 is the most controversial of the heads. We must consider these matters from a human point of view as well as a practical one. It seems that, as the legislation has set up such a conservative and difficult procedure through which to have a pregnancy terminated under head 4, suggesting it will open the doors to a significant number of abortions is unrealistic. From a practical point of view, it could well be argued that the procedure is so rigorous that women in this situation would be most likely to choose the option of going abroad for a termination rather than even applying under this head. Discussion on the medical aspects of the head is best left to the medical profession. As written by Ms Miriam Lord in this morning's The Irish Times, it appears that the end result will be "Doctors differ, patients fly". I understand that this poses a difficulty for legislators but I suggest that they view it from the human point of view. People make legal arguments about the X case judgment being flawed or not flawed, as the case may be, but what precisely would they do if faced with a 14 year old girl who had been raped by her neighbour? They discuss the law in a theoretical way, but let us consider what we do with human beings.

There is a certain illogicality in the argument that head 4 will open the floodgates. On the one hand, it is strongly asserted that Irish people in general reject abortion and that the various forms of public lobbying demonstrate the idea that the Irish people reject the idea of introducing legislation, particularly under head 4. On the other hand, it is argued that, if the door is even slightly opened to the obtaining of a termination of pregnancy, even in the extremely narrow terms of the proposed legislation, there will be a flood of Irish women seeking abortions on false excuses, supported by a flock of doctors willing to collaborate with them. Who are these supposed women if they are not the Irish people, too? Where are these doctors if they are not the caring doctors who have appeared before the committee to date? Is there not an inherent contradiction in this? The floodgates argument is an assumption about reality, namely, that there is a large proportion of the Irish public who want wider access to abortion and will get it unless they are legally prevented by a minority who oppose it. The results of public opinion polls on the subject may be relevant to considerations in this regard. For example, 75% of people are in favour of abortion in rape cases. While considering all of the ins and outs of head 4 and so on, legislators should keep in mind the reality of life in this country. They and I know that thousands of Irish women avail of abortion in other jurisdictions. This legislation is at least an effort to regularise the situation and make a sensible reply to what is a human situation as well as a legal one.