Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

Yes. I am seeking this change because I was approached by quite a number of people who are very concerned about disability and other reasons for which people might seek terminations. It hinges on viability and the fact that a termination is possible up to the point where there is a viable foetus and a potentially viable early birth. There are three issues involved. The first is a simple drafting issue, which is dealt with via the amendment. The amendment simply states that we should take the definition of "viability", word for word, and move it to section 10. In that way, when people read the conditions under which a termination is possible, they will state, first, that there is a risk to the life or serious harm to the health of the pregnant woman, second, that the foetus has not reached viability - the meaning in this regard is outlined in the section - and, third, that it is appropriate to carry out the termination in order to avert the risks to life and health.

In terms of where I believe there may be an error in the drafting, the definition of "viability" in section 9 states, ""viability" means the point in a pregnancy at which, in the reasonable opinion of a medical practitioner ...". However, section 10 states, "A termination [of pregnancy] may be carried out in accordance with this section where 2 medical practitioners ...". In section 9, "viability" is defined as one medical practitioner but in the main section where it is used it is defined as requiring two medical practitioners. The first issue is around drafting to provide absolute clarity and to state that if this is the main section where "viability" is used, then it should be inserted here. That is the first point I would like the Minister to address.

The second point relates to viability and delivery. As I have been explaining this to people, my understanding of the legislation, with this definition of "viability", is that it states that a termination of pregnancy is possible if the woman's life is at risk, if there is a risk of serious harm to her health in the cases of fatal foetal abnormality and in early pregnancy, which obviously viability does not come into. If the two medical practitioners say there is a viable pregnancy, meaning the foetus can live outside the womb, with or without extraordinary life-sustaining measures, which I know we will debate, the implication of that is once a foetus could be delivered and live, the option of termination of pregnancy is no longer available and, therefore, the foetus will be delivered. That is my understanding of the implication of viability but it is not stated anywhere in the legislation that if one or two medical practitioners deem that the foetus can be delivered and live, then the foetus must be delivered and live. In the context of viability, and it all hinges around the concept of viability, will the Minister say, because it is not explicitly written down, whether it is the case that the implication of this is that once the doctors believe the foetus can live, the option of termination is no longer available and there will be an early birth or an induced birth?

The third point - other amendments we will discuss shortly deal with the same issue - relates to the definition of "viability" in section 9, which states, "the foetus is capable of survival outside the uterus without extraordinary life-sustaining measures". I have spoken to obstetricians about this and asked what would normally happen in terms of an early birth and whether they would normally use extraordinary life-sustaining measures to keep a foetus alive. They said that they would. They said the foetus would be resuscitated, that it could be in ICU, in incubation, and that is their non-legal understanding of the matter. When asked if they would throw everything a hospital has at keeping the early delivered baby alive, they said they would. Some clarification is required on that because "viability" means that the foetus can live outside the womb without extraordinary life-sustaining measures.