Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I am happy to do my best to provide Deputy Bríd Smith with clarity, although I do not know if she will agree with what I have to say. She might recall that when we published the general scheme in March, we defined this as "shortly after birth". I think we all understood the policy intention - as a policymaker, I certainly did - that this was to ensure that the issue of fatal foetal abnormalities could be dealt with in our country and that arguments put forward by groups such as Terminations for Medical Reasons, TFMR, could be addressed. Those of us who campaigned for a “Yes” vote very clearly and determinedly argued that there is a distinct difference between this and a disability. I felt there was an effort on the part of some to muddy those waters. We are talking about fatal foetal abnormalities, which is not the medical or legal phrase but it is the way that we all understand what is involved. To have that, there must be a specified end period. When I met clinicians - mainly after the referendum - and legal advisers in the Office of the Attorney General, it was clear that there were two periods from which to choose from a policy perspective, namely, the perinatal period or the neonatal period, that is the seven days or 28 days. I opted for the 28-day period.

I do not wish to speak for the Deputy, but I think this is from where she and others may be coming, namely, how can one know with absolute certainty that it is within 28 days and how a doctor might interpret that? This is the key question that a number of us are trying to address. I would answer by saying that the legislation includes the phrase “in the reasonable opinion of” and was formed in good faith. These are clinical decisions and I am not going to do anything in legislation - nor is the Deputy asking me to - which means that I, as Minister, or we, as legislators, would prescriptively decide that. However, I need to provide a period for guidance for our doctors. We are saying that if, in his or her reasoned opinion, a doctor believes a baby which it is at this stage is not viable and would not live outside the womb for 28 days, it will be legal to provide termination services.

I genuinely do not believe that it is Deputy Bríd Smith’s intention. However, I am concerned that if there a specific period were not stipulated, we would have a very peculiar situation because we would be saying that this is only for fatal foetal abnormalities but also that it is for fatal foetal abnormalities that may not be that fatal. We would be getting into a broader range of conditions. I promised the people that disability would not be a ground – I am not suggesting that is the Deputy intention – but my worry is that this might be an unintended consequence. We must provide our doctors with clarity. I have not received any information to the contrary from any doctors, masters or clinicians to the effect that they are unhappy with this period. On the contrary, this is a welcome clarification which was provided in the July general scheme but which was not in the March general scheme. That is from where I am coming.