Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

Let us break this down. We are talking about legal and medical advice. We need to look at section 12, "Condition likely to lead to death of foetus", subsection (1), which states: "A termination of pregnancy may be carried out in accordance with this section where 2 medical practitioners, having examined the pregnant woman, are of the reasonable opinion formed in good faith that there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before, or within 28 days of, birth." This subsection is what we are talking about.

Because of the sections concerning offences, the Bill is structured to state that termination of pregnancy is illegal, with a long potential prison sentence, except in the circumstances referred to, and this is one of those circumstances. Therefore, if we include this in the legislation rather than in the guidelines, any doctor making this call, sitting with a couple and telling them the foetus will not survive but, rather, will die either in the womb or shortly after birth must certify this and sign his or her name to it. The couple then ask more precisely how long the foetus will live and the doctor saying he or she does not know, that it could be three days, 15 days or 30 days. Every single case then gets written up and sent to Deputy Harris or whomever the Minister of the day is. The doctor must be able to stand by the fact that the baby, if delivered, will die within 28 days. In many cases the doctor will not be able to make that call. He or she will know that there is a fatal foetal condition present, that the baby will die within days or weeks of birth, but will not be able to say, "Yes, I can certify that it will be within 28 days." That is the legal position that this creates.

The two points the Minister makes are based on the medical advice and the legal advice he has. I do not know what medical personnel he has spoken to but I suggest that their advice is that we need clarity. I doubt they are saying to anyone that the 28 days must be in the legislation rather than in guidelines. What they are probably saying is that they need to know if the provision states "shortly after birth" or "within 28 days". The issue of what they are saying can be dealt with by putting the 28-day provision in the guidelines. I doubt medical practitioners, including obstetricians, are saying they need the provision in the primary legislation. Perhaps they are.

The second point is the legal point. The Minister says he has legal advice that he must give an exact time period. If that legal advice is from the Attorney General, my understanding is he cannot share it with us as one cannot share the Attorney General's advice. I have been trying to get that advice during my eight years in the Dáil and the position is always "Sorry, but the Attorney General's advice is privileged." Therefore, if the advice from which the Minister quotes is from the Attorney General's office, which it must be, he is prohibited from sharing that advice with us. The point of this committee is for us to tease out the legalities of legislation. I accept in good faith that the Minister has advice from the Attorney General.