James Reilly (Dublin North, Fine Gael) | Oireachtas source

The amendments seek to remove the criminal sanction for a woman who unlawfully undergoes a termination of pregnancy. While I understand the Deputies' concern in this regard, it should be noted that, as it stands, a woman may be prosecuted for non-lawful abortion under the provisions of the Offences Against the Person Act 1861 which states any such woman shall be liable to be "kept in penal servitude for life". In other words, the provision in the Bill does not create a new offence for women in such circumstances but merely brings the penalty for the existing offence in line with current parameters, namely, that instead of imprisonment for life, the sentence shall not exceed 14 years.

While it is recognised that the potential criminalisation of a pregnant woman is a very difficult and sensitive matter, this provision reflects the State's constitutional obligation arising from Article 40.3.3°. It would also be inequitable to have, as a matter of course, a significant penalty for the person performing a medical procedure but none at all for the woman who willingly undergoes that procedure. It is vital to point out that the sentence to be applied in any particular case is a matter for the courts. We are always inclined to consider the worst case scenario in these matters. There is no intention under this section that a woman would be sentenced to 14 years in prison, but it is there in the law.

There are two important issues to highlight. First, it is very clear that a prosecution can only be brought at the behest of the Director of Public Prosecutions. The latter has discretion in this regard and I have absolutely no doubt that this discretion will be exercised. Second, if a case does come to court, the court also has discretion at its disposal. I cannot foresee a case where a court would inflict that level of penalty on a woman. I share Deputies' concerns for women in difficult circumstances, potentially including minors who might be more likely to purchase certain items from the Internet. I am confident, however, that the courts have wisdom, as well as justice, as does the Director of Public Prosecutions. It is my expectation that the type of penalty described will not be inflicted on individual women and will instead be reserved for recalcitrant operators of illicit services.

In regard to the comments on suicide and how it is treated, it is important to point out that suicide is to take one's own life, whereas abortion is to take the life of another, namely, the unborn. It would not be appropriate to equate the two.