Denis Naughten (Roscommon-South Leitrim, Independent) | Oireachtas source

The difficulty is that the suicide provision provides for a more liberal abortion regime than exists in the United Kingdom. There are no term limits on it, which means it provides legally for late-term abortions. I acknowledge that it is not the intention of the Government or parliamentary draftsman to make that provision, but the Bill as drafted so provides. All the evidence from those in favour or against the legislation which we heard at the joint committee made it clear that late-term abortions can have serious mental health outcomes for women. We can all agree on that.

In raising specific issues of concerns on late-term abortions, I turn to the evidence of Dr. Sam Coulter Smith, the master of the Rotunda. He stated to the joint committee:

The fact that there is no gestational limit in respect of the third scenario relating to suicidality is a major ethical issue for obstetricians. I will illustrate this with two scenarios. First, let us consider the case of a patient who is 25 weeks' gestation. If she is deemed to be sufficiently suicidal to require a termination of pregnancy by one or more psychiatric colleagues, an obstetrician who is tasked with dealing with this situation is faced with an enormous ethical dilemma. Delivering a baby at 25 weeks' gestation could lead to death, due to extreme prematurity or it could lead to a child with cerebral palsy or with other significant developmental issues for the future.

That is the evidence he gave to the committee. What happens to a woman who is suicidal due to having a foetus with a serious abnormality and a very limited lifespan of perhaps minutes or hours after birth? Medical science allows this determination to be made, usually around the threshold of viability at 21 to 23 weeks. What if a woman is suicidal on the basis that she does not want to give birth to this particular baby? In order for the obstetrician to meet the medical requirements set out in the legislation, there is a need for the sake of the woman's mental health and the threat of suicidality that the foetus is not born alive. That means it is vitally important that the foetus is made unviable in utero. That causes huge ethical issues not only for medics but for many in the Oireachtas. I hope the Minister deals specifically with that issue in his reply on Second Stage or on Committee Stage. It is a genuine concern and anomaly in the legislation as drafted. It is a weakness in the legislation that there is no specific provision for the unborn who is potentially viable outside the womb to ensure that a medical procedure shall not impede all efforts to sustain life on the complete emergence of that baby after birth from the body of the woman. These are the terms of an amendment I have put down for discussion on Committee Stage. While it is not the intention of the legislation to create this anomaly, it causes problems as drafted and must be clarified.

It is important to consider suicide and the approach of the courts. I refer to the case of Cosma v. Minister for Justice, Equality and Law Reform. In that case, a woman who did not want to be deported from the State expressed suicidal ideation as her reason for requiring the court to quash the deportation order. She made the case that if she was returned to her country of origin, she would die by suicide. The High Court rejected the evidence presented in support of the claim of threatened suicide. The court found that the applicant had no treatment plan and was not undergoing therapy, without either of which the court could not determine whether there was a real and substantial risk to her life, which is the test set out in the X case. If the High Court is correct on that, its judgment is contravened by the legislation before the House.

If a woman is receiving treatment or an alternative of treatment is available to her for suicidal ideation then she is legally not entitled to a termination under section 9 of the Bill, yet the High Court determination was that in order for there to be a real and substantial risk she must be receiving treatment. There is a contradiction in both of those and the High Court determination is based on the Supreme Court judgment.

The final point I want to make is that the Government, at the time of its initial decision in December last, as I referenced earlier in my contribution, made the point that it would introduce primary legislation and regulations. As the House will be aware, there are regulations to come in this regard. At the time, the Taoiseach made it crystal clear that we would have both the primary legislation and the regulations in front of us to consider during the passage of this legislation. We have not seen any regulations. We have not been given any indication as to the content of those regulations and it is wrong to be considering the primary legislation without the secondary legislation also being before us. Both, in the case of this legislation, work hand in hand. It is difficult to interpret the intention of the legislation and I have raised some difficulties with the interpretation as currently drafted. I presume the Minister's defence in that regard will be that the matter will be provided for in regulations. We were promised by the Taoiseach in December last that we would have the regulations in tandem with the primary legislation. We have not seen those regulations. We should have those regulations. It is difficult for this so-called reformed parliamentary democracy to debate an issue with one hand tied behind its back when we have not seen the other element of the legislation. I would hope that in advance of the completion of Second Stage we would see the publication of those regulations.

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