Mr. Frank Callanan:

Senator Colm Burke made a valid point on what head 4 provides in regard to psychiatrists. I have to say we seem to keep coming back to the point of there being no psychiatrist in the X case. It is hard to see how that, in any event, would affect the correctness of the principle that was annunciated in the decision in the X case.

Senator Burke also referred to the position of children under 18, and the age of consent for medical treatment going to 16 years under the 1997 Act. That is something that in practice, between the courts and parents, I do not think has given rise to a great deal of difficulty.

Deputy Maloney made some valid points on the floodgates argument in terms of what actually happens to women travelling out of the jurisdiction for terminations. Deputy Fitzpatrick raised the issue of the obligation to legislate which had come up earlier. The argument has never really been made that the Oireachtas had to legislate and could not leave a vacuum. As Justice McGuinness has said, judges have frequently lamented - not least in this particular area - the absence of legislation. It is at least theoretically conceivable that one could make an argument that it was incumbent on the Oireachtas to legislate on a particular subject and, irrespective of the content of the legislation, that there was a pure obligation to legislate. It has never come to that, but it would give rise to complex separation of powers issues. However, I suppose it is at least a theoretical possibility.

Deputy Naughten asked about the Cosma judgment. I was quite surprised at Dr. Cahill's reliance on the Cosma decision with which, I have to say, I am not that familiar. It seems inconceivable that one could argue that a High Court judgment on an immigration matter could be considered to have overturned the X case judgment. I do not think she was suggesting that it superseded X, but was suggesting that it represented some sort of new norm of which X was deemed to fall short. However, that is an untenable argument. One might as well Google "suicide" and use whatever comes up to say that it must remove X and take it off the field. I do not know where that argument comes from.

Senator Bacik referred to the need in the "reasonable opinion" to refer to the life of the woman. It might assist but I am not sure it is necessary because the legislation will be construed in the context of the Constitution.

Senator Walsh raised the issue of the advocacy of the position of the unborn, which is a very complex matter. Certainly in so far as legal proceedings are concerned - and I appreciate the purpose of the Bill is to get away from legal proceedings - it is something that has been addressed from time to time by the courts. For example, in the Article 26 reference in the information Bill there was counsel for the unborn. It is something that will be required as a matter of rarity.