Charles Flanagan (Laois-Offaly, Fine Gael) | Oireachtas source

I welcome the report and recommend its reading by as many citizens of the State as possible. I hope the report is available in all public libraries, schools and colleges. I encourage everyone to go online to read it. The Government must ensure that hard copies of the report are available because of its importance.

I acknowledge the great work of the expert group and its composition of medical, legal and administrative expertise. It is regrettable the abortion debate in this country has been dominated by extremists on both sides for many years. There is now a middle ground of public opinion that urges us, as legislators, to get on with the job. We have, on the publication of this report, an historic opportunity for all-party consensus on a way forward. The report and its options offer a reasonable solution to a highly charged and emotive issue. Abortion is a difficult, sensitive and divisive issue not only in this country, but around the world. People hold strong personal views. The debate must be kept calm and within certain perspectives of civility. The Government sought the report to provide expert guidance and advice on the State's obligation to the judgment of the European Court of Human Rights. A range of options was sought and it was delivered. Delay and the status quo are not among them. It is 30 years since the highly-charged referendum and 20 years since the X case judgment. The issue must be addressed within the framework of the Constitution and its interpretation by the Supreme Court in the X case.

The constitutional review group of 1996 recommended legislation as the "only practical possibility" to clarify the state of the law. The all-party group stated that the legislation should cover matters including definitions, protection for appropriate medical intervention, certification of real and substantial risk to the life of the mother and a time limit on lawful termination. Three years later, the Green Paper on abortion in 1999 considered seven options and, of those, two fall within the terms of reference of the current expert group's work. The two options involved primary legislation and regulating abortion in line with the X case criteria.

It seems to me, therefore, that the only means by which certain legal clarity is required to the issue of lawful termination in Ireland is by means of primary legislation. People require clarity. Failure to act may cost lives. Courts in this country and in Europe have made it clear that this legislative vacuum is unacceptable. Mothers must know the law; doctors must know the law; people must know the law. We are told there are grey areas. Grey areas may cost lives. The report acknowledges that no criteria or procedures have been laid down in law since the X case by which to measure or determine the risk to a woman's life. Hence, there is uncertainty as to the application of the law.

We have a duty as public representatives to help provide clarity on issues, but I acknowledge that whatever legal clarity is assured, such clarity must be within the confines of the current constitutional framework. Four options were outlined in chapter 7 of the report. None of the four options will lead to abortion on demand. One or more of the options will be considered by the Government and acted upon.

There is also the issue of the Offences against the Person Act 1861 and in particular sections 58 and 59 thereof. If the favoured course of action is that this House opts for legislation to give effect to the provisions of the X case – I believe it will - then sections 58 and 59 must be replaced. The "chilling effect", as it applies to women and medical practitioners, must be removed in its entirety. The expert report reminds us that the European court indicated that the criminal provisions still in force would have a chilling effect on both women and doctors during the medical consultation process because of the risk for both parties of criminal conviction and imprisonment. The need for legislative compliance which would offer a defence from criminal prosecution seems a necessary protection for medical practitioners.

Current Medical Council guidelines may be seen at times as ambiguous and can on occasion be interpreted differently. Obstetricians say they require legal protection and they deserve protection where there are legal and practical grey areas. In situations where the mother’s life is not at risk, where the health of the mother is not life threatening, then the law is clear, "A termination cannot be performed". The 1861 Act will apply and a criminal offence will be committed. However, medical emergencies can throw up difficulties and it is sometimes problematic to distinguish between threats to the life of the mother and threats to the health of the mother. The X case decision is the law. The European court requires the State to establish procedures in law to determine the risk to the mother's life and to set out criteria which a doctor may employ to measure that risk. The X case judgment states that the correct test is that a termination is permissible if it was established as a matter of probability that there is a real and substantial risk to the life of the mother and the risk can only be averted by the termination of the pregnancy.

It should be noted that under current law the doctor need not be of the view that the risk to the life of the woman is inevitable or immediate. That is a decision for doctors and doctors only.

The setting out of the four options, one or more of which will ultimately form the basis of the Government's response, is clear and detailed. The report leaves it to Government to choose an option, and I understand that will be done next week. I welcome that. Under the terms of reference of the expert group it was not the function of the group to specify the way the judgment was to be implemented but to provide this House with options, and it has done that. However, it appears from reading the report that a combination of primary legislation and statutory regulation offers a likely way forward.

The focus must always be primarily on the health and well-being of the mother. As legislators and regulators we must accept that burden of responsibility. I do not believe a referendum is the best option but in any event it is not considered by the expert body. I strongly disagree with colleagues who call for this issue to be put to the people again by way of referendum. Government must govern, and the Dáil must act in accordance with the principles of a representative democracy. The Dáil must ensure, on the best advice available, that no woman's life is ever put in danger. We need safeguards for medical procedures to protect the life of the mother by setting out criteria and conditions which are required to be met to be lawful. Those criteria must be framed in primary legislation and regulation.

The precise detailed nature of the legislation must be carefully considered and it must respect the current constitutional position. Legislation is by definition specific, sometimes very specific. That is where the complication arises.

I wish to state categorically that I am very much against abortion as a form of lifestyle choice or for so-called socioeconomic reasons. However, where there is a clear and undeniable medical necessity or emergency I will be guided by doctors.

I have heard many men make statements on this issue but I advise my single male colleagues in this House and beyond to discuss it with women before they make a final judgment on their position. This is primarily a matter for wives, daughters and partners and it is essential that we get this process right in a calm and logical sequence.

The fact that senior medical specialists remind us as legislators that there are situations where a termination is necessary but that there are grey areas where they need legal protection must be addressed. Doctors deserve protection and, more importantly, women deserve protection.

The expert report, like the Supreme Court in the X case judgment, uses the phrase "real and substantial threat" to cover all forms of threat to the life of pregnant women. Within that general definition of the threat two different medical scenarios can be identified, the first being physical health threats and the second being mental health threats, particularly the threat of suicide.

There is an emerging political consensus on the way to deal with the physical health threat scenario, and I welcome the cross-party consensus in the debate in the House today and yesterday. I believe, therefore, that we can reach an historic cross-party consensus on the matter of legislation covering the physical health threats. The matter of the mental health threat may not be as straightforward.

The matter of suicide is a major, delicate and sensitive issue. We must answer the question as to whether and when the threat of self-destruction can be justified as a reason for the termination of a pregnancy. Sometimes I wonder why the Supreme Court got into the medical definition of risks to a mother's life in the first instance having just ruled that medical actions to protect the life of pregnant women are lawful. In that context the threat of suicide is a valid medical threat factor. Personal health risk factors endangering the life of the mother are best left to the medical profession supported by legislation and regulation.

On the one hand it is difficult to understand the reason a simple blackmail threat by a pregnant woman with no personal history of mental health issues, and no evidence of physical health condition other than being pregnant, might ever be accepted as sufficient reason to end a pregnancy. On the other hand there is the case of the pregnant woman Anna Byrne who tragically took her own life when 38 weeks pregnant. The rationale for ending a pregnancy on mental health grounds is an extremely difficult area. Choosing one particular medical health factor, the threat of self-destruction, and making explicit provision for it as a reason for termination seems fraught with difficulty. I would like to hear more from psychiatrists in that regard, and I welcome the health committee hearings to be held in the new year.

I welcome the fact that the stigma around suicide has diminished in recent years and that a more humane and sympathetic attitude now prevails. Nevertheless, we must at all times ensure that as a society we value life, that people know there is always a better way than suicide, and that help is always available. Suicide prevention must always be at the heart of our policies. I am pleased that most suicide prevention policies and treatments are successful, but greater awareness is necessary. Expenditure of greater resources is necessary, and I have huge regard for the pioneering work of my colleague, Deputy Dan Neville, who passed through the House a moment ago, who has been campaigning on this issue for many years both within this House and outside it.

As a society we can do everything possible to prevent suicide yet, regrettably, sometimes the outcome is a sad and inevitable part of the human condition. In this debate on the termination of pregnancy where there is a real and substantial threat to the life of the mother we must deal with the claim that the threat of suicide constitutes a real and substantial threat to the life of the mother thereby justifying the termination of the pregnancy.

In dealing with that situation we must be conscious of the danger of the threat of suicide being formally and legally elevated to an acceptable option or criterion for the attainment of a personal objective, or sometimes becoming a matter of choice. The real danger is dignifying the threat of suicide with a social, moral and legal approval that in effect undermines all the good work being done to prevent suicide being seen as an acceptable solution to a problem in life. Suicide is never a solution to any problem, no matter how grave. We must amplify our message that human life is treasured and ensure that we do not offer a thin veneer of acceptability to a public policy that suicide and the threat of self-destruction sometimes meets with our approval.

Some evidence exists to the effect that there are cases, however rare, in which there is a real and substantial threat to the life of a pregnant woman from suicide but the X case was primarily about the right to travel for an abortion. The Supreme Court reference to the suicide factor was not a primary finding. It is a fact that one judge was against the idea, one references the word "suicide" only once, one references "loss of life", while the remaining two speak of the real risk to the mother's life without any great elaboration, but perhaps a deduction or an assumption to include suicide.

The threat of suicide can be regarded as a conventional experience in mental health practice. There are standard mental health responses to the situation that are employed to remove such a threat. A threat of suicide made by any patient for some guarantee of concession to a different demand would never be entertained by doctors when that demand comes from mental health patients of every age and either sex.

The real challenge for medics and legislators is to distinguish between those pregnant women who are in real danger from a threat to their life from suicide and those who do not belong to such a classification of mental health condition. Among the factors to be considered will be the pregnancy timeline, the medical evaluation factors, the medical evaluation timeline, therapy options, the termination timeline and the emergency timeline. I have no doubt we will revisit this issue in the new year.

The current statistics on pregnant women committing suicide must be clarified but if it is a rare occurrence, it nevertheless requires a response from us.

I commend this report and its authors. They admit that it was not in their remit to adjudicate on legal, medical or political controversies. The doctors on the group were not settling legal issues. The lawyers on the group were not settling medical issues, but they were expert and they did report. We must now respond, and I believe legislation must follow.

It is a full 20 years since Mr. Justice Niall McCarthy stated: "The failure of the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable." We have a duty to respond but regardless of the detail, form or shape the legislation takes it must be governed by rules which are fixed, knowable and certain, with no room for the grey area that currently exists.

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