Michael Creed (Cork North West, Fine Gael) | Oireachtas source

This is certainly the most difficult and contentious piece of social legislation I have discussed in my years in the Oireachtas, and it has consumed a great deal of time for all Members, including myself, over the past number of months, particularly since the report of the expert group and the chain of consultative arrangements that were put in place subsequently.

One of the points I want to make at the outset is that lobbying is part and parcel of the democratic process. Personally, I very much regret the attempt to demonise one side of the debate based on the actions of a small minority. It is true to state that this has been, by and large, a dialogue of the deaf. There has been very little willingness to have real and open engagement, particularly on the extremes of both sides of the argument, and I suppose one must bear in mind also that the vast majority of people have not spoken at all on the issue. It is unfortunate that the actions of a small minority have been elevated to such importance as to provide a justification in some respects for the demonisation of one side of the argument. I have been the subject of quite a good deal of representation - it was ongoing up to this very day - on the matter. I would say that 99% of it has been respectful and conveyed in an appropriate manner. While in most cases we have had to agree to differ on the issue, those involved behaved in an exemplary manner. In that sense, I want to put on the record some correspondence I received from the Carrigrohane Union of Parishes, which is the Church of Ireland parish in my constituency. It wrote to me recently in respect of this legislation, stating:

We, as members of Carrigrohane Union of Parishes,

Thank you for the time you have taken to listen and are ashamed of the abuse you may have received in the name of the Church and Christ.

Are concerned about possible lax interpretation of the legislation and ask that as a public representative you are vigilant in the application of the Act.

Request that in the legislation requiring the annual reporting of notifications of terminations to the Health Minister before 30th June each year, that this is reinforced by requiring the Health Minister to present it to the Dáil for consideration, so that the government is seen to be accountable.

We offer you our prayerful support in your difficult role as a public representatives, and pray for healing and forgiveness so that we can know the blessing of God is in our nation.

They go on to say, "You have listened... you have faced formidable pressures... we may not agree about everything, but you have our respect. Thank you." That summarises, by and large, the tenor of many of the representations I have received. That is from the Church of Ireland but I have also engaged directly with members and clergymen from most of the Christian churches, including the Catholic Church, and I encountered the same tenor. Lobbying is part of the process and we must be cognisant of that.

There is a view that we do not need to legislate and that we could continue to ignore what is an established constitutional right since 1992. I accept there is no legal imperative to legislate. Neither the Supreme Court ruling nor the judgment from the European court in the A, B and C v.Ireland case specifically obliges us to legislate. The European court ruling obliges us to clarify. I sat through the health committee hearings in January after the publication of the expert group report and the hearings in May after the publication of the heads of the Bill. I listened to constitutional experts, obstetricians, gynaecologists, psychiatrists, perinatal psychiatrists and representatives of all the churches. It became abundantly clear that this is enormously complex. While clarity is necessary, it is difficult to see how the appropriate clarity can be provided outside the legislative process.

Some people have suggested guidelines as an appropriate instrument. In that respect I will refer to the current Medical Council guidelines that relate to abortion. The guideline states: "Abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother. Under current legal precedent, this exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide. You should undertake a full assessment of any such risk in light of the clinical research on this issue." For me and most reasonable people, those guidelines are quite vague relative to what is contained in the legislation, where there is an onus of consultation with a number of medical practitioners before an entitlement to a termination can be vindicated. I quote the guidelines merely to show that the current Medical Council guidelines are unsatisfactory. The legislation is an improvement in the sense that the woman seeking a termination under the suicide provision will be obliged to go before a panel of three medical people, two of whom shall be psychiatrists. This is not provided for in Medical Council guidelines. Guidelines are not the be-all and end-all in respect of clarity and in that sense do not serve to advance the euphemistic pro-life interest, as I see it.

Another point must be made in respect of what is already an established constitutional right since 1992. It emerged in a response to a parliamentary question tabled recently by my colleague, Deputy Timmins. He asked the Minister for Children and Youth Affairs in respect of the C case to provide information on the number of girls in the care of the State "that were taken to Britain or elsewhere for an abortion following a court decision, following testimony from a psychiatrist for the State that she was suicidal for each year from 1998 to date in 2013; the psychiatrist involved on each occasion; and if she will make a statement on the matter." The Minister replied as follows:

I am advised by the HSE that six minors who were in State care were assisted in travelling abroad for abortions since 1992. The circumstances in each case are complex and unique to the individual involved. In the interests of confidentiality and given the very low numbers involved the HSE is constrained from providing details of the individual cases. The HSE has confirmed that it acted within the legislation and in the best interests of the children involved in all cases. In each of the six cases a psychiatrist was involved in providing an assessment of the mental health needs of the child. In four of the six cases a court hearing was convened."

Under the constitutional right established since 1992, six children in the care of the State who were pregnant have had that right vindicated. It is not as if this legislation is establishing a new legal right. It is providing the clarity required for how that legal right may be interpreted and in many respects, in the context of how it was accessed or vindicated up to now, it is making it more restrictive in terms of the obligation to consult more widely.

In respect of the suggestion that we are not required to legislate, the reason I quote that reply and the Medical Council guidelines is that the right already exists, but how the right is vindicated is shrouded is uncertainty. Some have already vindicated it. Guidelines are wholly inadequate in my view in the context of the guidelines that already exist under the Medical Council. Others say we can deal with this by regulation. However, regulations must be underpinned by some form of primary legislation, so it is a circuitous argument. Given the complexity of the issue, I believe the only way to provide the required clarity is to proceed by way of legislation.

There are a number of issues I wish to raise with the Minister. Framing this legislation has been something of a high-wire act in trying to move within the parameters of the X case judgment in 1992, the A, B and C v.Ireland judgment, the constitutional provisions of Article 40.3.3° and the expert group report. That is the space within which the legislation is framed. I have raised a matter previously with the Minister, so he might address it in detail in his reply to the debate. It has been raised in the public domain most recently by the former Director of Public Prosecutions, DPP, Mr. Eamonn Barnes. He argued, perhaps more cogently in a legal way than I could when I raised the issue in the health committee hearings on the heads of the Bill, that whether we like it or not there is an Article 40.3.3° in the Constitution. It states that the State recognises the equal right to life of the unborn and in so far as practicable shall by its laws seek to vindicate that right. As a father, husband, brother and son in respect of my relationships with the women in my life, I find it difficult to grasp that equal right to life. In my family circumstances I would certainly elevate the right to life of the mother. I believe most people would, notwithstanding the difficulty of the situation.

However, in the legislation are we not legally elevating one right above the other beyond what was envisaged in the 1982 amendment to the Constitution by granting, in section 13, a right of appeal to one party above the other in respect of entitlement to a medical procedure to terminate a pregnancy? That is the point both I and the former DPP have raised. Would it not be appropriate that an authorised medical officer - I am not anxious that this matter would become bogged down in a legal sense - appointed under this legislation would be empowered to act if it sees fit and bearing witness to all the medical evidence, to represent the interest of the unborn in any proceedings that might be undertaken under sections 7, 9 or 13? The latter two are the sections dealing with an entitlement to a termination under the suicide provision or entitlement to an appeal where a decision has been refused by the appropriate panel. In the interests of ensuring the constitutionality of the Bill, this is something that raises fundamental issues about what we have provided for in the context of an appeal.

I say this because it is against the background of Article 40.3.3° that this legislation will undoubtedly be adjudicated upon, either by referral by the President after consultation with the Council of State or by way of subsequent challenge by some third party. There is a danger that the constitutionality of the legislation might be undermined by that failure or the elevation of one party's entitlement above another. I say this cognisant of the flaws in the provision that was inserted in the Constitution and how it has since been interpreted. In many respects, the referendum outcome has been a bitter harvest for those who, in 1982, advocated for a referendum. They certainly did not envisage the outcome although wiser counsel in many quarters did in 1982 predict it as a possibility. I would like to see the comprehensive, legal Government response to this issue.

I thank the Minister for his engagement with me and others on the Bill to date. Reference has been made to Lord Steel's legislation in the United Kingdom and to the French and Californian experiences. I am conscious of these. It is important, in framing our legislation and given its complexity and the fact that there was very little meeting of minds among all the experts we heard, that we put in place an effective review mechanism. Its genesis, but certainly not the finished article, is encompassed in the legislative provisions for notifications. I wish to raise with the Minister some of the weaknesses I noted, and I hope he will be in a position to improve upon these on Committee Stage. There is a requirement under section 20 to report to the Minister where a medical procedure referred to in section 7(1), 8(1)or 9(1)is carried out. The glaring omission is that there is no reporting or review mechanism concerning decisions made under the appeal system. That should be addressed. Section 20(3) states:

The following information is specified for the purposes of subsections (1)(a) and (2)(a):(a) the Medical Council registration number attached to the registration of the medical practitioner who carried out the medical procedure referred to in section7(1), 8(1) or 9(1), as the case may be, in respect of the pregnant woman concerned;

While I can understand the reason for this requirement, it clearly highlights the glaring omission of an equally or more important requirement to provide to the Minister the Medical Council registration numbers of the three medical practitioners who, under the legislation, jointly certify that an entitlement exists. This is because the three medical practitioners are effectively the gatekeepers. It is stated that perhaps one pregnant woman in 500,000 is genuinely suicidal and that nobody wants the death of that woman on his or her hands, but it is surely as important to know the identity of the three medical petitioners who certify an entitlement as the identity of the medical practitioner who carries out the medical procedure. Could the Minister commit to addressing this omission?

Section 20 states the Minister shall publish all the information he is furnished with by the appropriate institutions. A simple additional requirement would be the placing of the publication before the Houses of the Oireachtas by the Minister. I hope the Minister can accede to this based on conversations we have had on this matter.

It is ludicrous to talk about Oireachtas reform if the Executive continues to assume it knows best and that it is the only authority that may be dealt with. It is important that we review the impact of this legislation, particularly given the international experience and the facts that we are fallible and may get it wrong. Most people want to deal with emergency circumstances in which a woman's life is in danger owing to a physical condition or, perhaps more contentiously, a threat of suicide. We need to know annually how the legislation is working. In the process of reviewing the legislation before Committee Stage, could the Minister examine the two issues I have drawn attention to in regard to notification?

Section 15 requires the HSE to submit to the Minister a report on the operation of the chapter in question. I refer to the certification of identity on review. The purpose is to ascertain whether there are doctors who will automatically provide certification without due regard to best medical practice. The Minister stated he will not hesitate to use the powers afforded to him under the legislation, as drafted, to suspend a service in that instance. We will only know the answer by having an effective reporting mechanism. I would like the Minister to assure us that this matter will be dealt with.

I am prepared to support the legislation on Second Stage. It is the culmination of a very extensive consultation process. It does not involve an easy decision; it is difficult. I have gone to extremes to listen to and engage with all sides. I found the engagement process to be constructive in 99% of cases. There is an established constitutional right to be borne in mind. We would not trespass lightly on any other established constitutional right. I have heard the view that the judgment is flawed. I could imagine the hullabaloo that would have arisen if the Government had decided, in respect of the most recent ruling on its inappropriate handling of the children's rights referendum, that it was only a Supreme Court ruling and did not have to be taken very seriously. We have waited a long time to bring the required clarity to this issue. Doing so challenges all of us and forces us to deal with enormously complex issues. As lay people charged with legislating, we must take account of eminent persons in all the appropriate fields, who have failed to agree. The legislation is a measured step. In the context of suicide, which is the most contentious aspect, it is balanced in the sense that the entitlement to a termination on grounds of suicide must be in the context of those certifying entitlement in this regard being satisfied that no other form of treatment would effectively protect the life of the mother.

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