Mr. Frank Callanan:

The issue of term limits, raised by Deputy Kelleher, has been a source of much concern. The answer on that point relates to the absolute constitutional imperative to preserve the right to life of the unborn, even in an X type situation, if the unborn is viable or on the cusp of viability. The reason this is a matter of great public concern is the Irish abhorrence of regimes in other jurisdictions which are believed, rightly or wrongly, to permit abortion on demand. The scheme of this legislation to give effect to a constitutional right is entirely different. For that reason, I do not believe the inclusion of prescriptive time limits is called for. Inclusion of such limits also opens up the unwelcome prospect of a constitutional challenge on the grounds that the legislation infringed the equal right to life of the mother as construed by the Supreme Court in the X case.

Deputy McGrath raised the interesting question of whether the Oireachtas could be said to have been in breach of its obligations since 1992.

I do not think anybody would take that position. However, it is worth mentioning that while it is an unexplored area of constitutional law, it may not simply be a matter of the European Court of Human Rights holding that the State is in violation of the convention, although one could perhaps envisage circumstances in which that argument was made under the Constitution.

On the question of the amalgamation of heads 2 and 4, as both Deputy Conway and Senator van Turnhout suggested, one can see some merit in that. The justification advanced by the Minister is related to the subjective nature of a diagnosis of suicidal intent and that, at least, provides an argument for what is not a radically different regime under head 4 as against head 2. Senator van Turnhout also raised a concern about the scope of the offence created by head 19, which is to replace sections 58 and 59 of the Offences Against the Person Act of 1861. Those sections will be repealed by head 18 and I would share the Senator's concern in that regard. The offence could be better crafted to correlate to the rest of the legislation and should probably be narrowed. One would have a slight concern at the very broad wording. The language is quite broad, and reads that it shall be an offence for a person to do "any act with the intent to destroy unborn human life". Given that this is such a vexed area, it would be desirable to avoid any argument that the offence under the Act could possibly encompass the advocacy of abortion rights.