Michelle Mulherin (Mayo, Fine Gael) | Oireachtas source

I welcome the Minister to the House. It is fair to say that no issue has come before the House which has caused such controversy or which causes the manifestation of such extreme views in our society. It is difficult and personal for women affected and their families. It is difficult for individuals as members of political parties and as legislators to introduce legislation and when legislation is introduced it is very difficult for medical practitioners dealing with life or death cases to have to make the call in a given situation.

It is remarkable and confusing at times to witness, as we did at the two hearings of the Joint Committee on Health and Children, the fundamentally opposing views of the professionals, both medical practitioners and lawyers, on issues of interpretation and practice in respect of the issue of abortion, often given in complex "medicalese" and "legalese" which does not make it any easier. As we debate this legislation we must try to make sense of the evidence to arrive at the best position for a mother in a life threatening situation and for the unborn child.

No pregnant woman, because she met the wrong doctor on a given day or night, should be left without all necessary treatments, including a medical intervention to save her life which may result in the termination of the life of her unborn child. I welcome the aspect of the Bill which seeks to bring a formal process for a pregnant woman to invoke when her life is at risk, owing to a physical threat, and which brings clarity for herself and her medical practitioners.

This responds to the obligation which the A, B and C v. Ireland case judgment of the European Court of Human Rights placed on the State. However, much impatience has been expressed in some quarters about years of delays in introducing X case legislation to include the recognition and regulation of a pregnant woman's right to a termination where there is a real and substantial risk to her life from suicidal ideation, in the same way that a physical threat is recognised.

At this stage there are people who wish to see us sprint over the line and put legislation in place once and for all. Notwithstanding it being over 21 years since the X case judgment, the truth is that tentative discussion and debate in middle Ireland and mainstream politics has only begun in the past year, with the Bill only having being published under two weeks ago. Previously, the debate has been the domain of extreme views on the issue, with most people in the country not really that comfortable in speaking about abortion. Most of the media seems to be preoccupied with the politics of who will lose the party Whip on the issue rather than examination and illumination of the issues of concern.

Many of those pressing for legislation on the X case cite polls conducted indicating that a majority of Irish people are seeking legislation in line with it but given the complexity of the matters, how reliable can such a simple question for such a poll be? Much of the sentiment and support on the face of the poll stems from the people's upset - rightly - at what happened in Savita Halappanavar's tragic case, which does not have a correlation with the substance of the X case, which provided for suicide as a grounds for termination of pregnancy. In doing this, the X case did not provide a sufficient exposition and examination of the medical evidence which might support the creation of such a ground. After all, the assessment of the risk to the life of a woman and appropriate treatment is a medical matter.

Many lawyers are uneasy about, or at least acknowledge, this unsatisfactory aspect of the X case judgment. Many proponents of this legislation and an abortion regime more liberal than permitted by our current Constitution want to conveniently gloss over this unhelpful fact. It would seem there is general agreement among psychiatrists that abortion is not a treatment for a pregnant woman who is suicidal. Notwithstanding this, there are some medical practitioners who indicate that on very rare occasions, a termination would be required on suicide grounds, but they can point to no clinical evidence to support this proposition. The medical statistics tell us that a pregnant woman is less likely to commit suicide than a woman who is not pregnant. To compound matters, the Irish citizens voted in two separate referenda not to exclude suicide as grounds for termination, so to say the issue is complex is an understatement.

Of great concern is the recent revelation that six young girls - minors in the care of the State - have been taken to the UK for the purpose of termination of pregnancy. This has been given as a reason to introduce X case legislation. What are we really looking at and could we please have some answers to some of the following issues? Four of these cases entailed an application to the courts, with all six having been seen by a psychiatrist. We have been told that a suicidal pregnant woman who would require a termination is a rare event, with the numbers possibly at one in 500,000. The odds for a young girl in State care seem to be much higher so why is that? What treatment did these girls receive for suicidal ideation and why did these young girls get pregnant while in State care and protection? Who does it suit that there should be no pregnancy? Is it those responsible for the girls?

We know that in the D case the girl in question subsequently claimed she was told by the authorities to say she was suicidal. Could these cases possibly expose a culture within the HSE and some psychiatrists that a young girl in the State's care who gets pregnant through rape should ultimately receive a termination? If it is the case, we are not acting within the boundaries provided for by the Constitution as it stands and the questions must be answered. Why did all of these cases not go before the courts? There is nothing in the Bill stipulating that the HSE will be prohibited from arranging travel for a procedure in a foreign jurisdiction, as in these cases, and the right to travel is restated in the legislation. What has happened to these women since? Surely these questions should be answered in the public interest and considering the import of the legislation which we are on the brink of introducing.

In the legislation we are challenged with balancing the protection of the life of a pregnant woman with the right to life of an unborn child, which we guaranteed to vindicate in accordance with the Eighth Amendment to the Constitution, which was voted upon and inserted by the citizens of this country. This is the blueprint by which we create laws on this issue in accordance with the will of the people. Looking at the Bill, I am concerned with the suicide ground that the correct balance is not being achieved and on account of the lack of medical evidence to support its use as grounds for termination of pregnancy and its possible abuse if included.

I am concerned that the regulations pursuant to this legislation have yet to be published. The Bill sets out a framework but does not give detail which may help in assessing how workable it is. Moreover, it is objectionable that we should be debating and required to vote on this Bill in the absence of the draft regulations which have been promised. I have met with the Minister on this and other issues with the Bill as drafted and I am waiting for him to revert to me about my concerns, which include the following.

The standard of "good faith" placed on medical practitioners is not sufficient and is a subjective test. I contend that it should be explicitly stated that the decision should be objectively reasonable on the part of the medical practitioner, and it should be made in reliance on some objective standards and meet at the very least a standard required in medical negligence cases. For example, the Medical Council guidelines of 2009 refer to an objective standard stipulating to psychiatrists as follows: "You should undertake a full assessment of any such risk (i.e. suicide) in light of the clinical research on this issue." It should be stated that the three medical practitioners referred to in section 9 should be required to examine the pregnant woman separately before certification.

We have been assured that a suicidal woman will be afforded all treatments and termination would be a last resort. This has been offered by way of comfort for those of us concerned that treatments should be explored. However, the Bill does not actually state this but simply sets out a procedure for a woman to establish whether she qualifies for a termination. So what if a woman is suicidal and at risk but has no mental illness and refuses treatment, which she is legally entitled to do? At least one of the psychiatrists at the Oireachtas health committee hearings stated that she did not see her role as treatment in that scenario and rather that she would be simply certifying the medical grounds for legal eligibility. What are of particular concern are the differing views of psychiatrists as to their function in this scenario as set out at the hearings, and that is unsatisfactory to say the least.

A required cooling-off period or a pause of at least a week to ten days for a decision on a section 9 certificate should be included where a woman does not have a mental illness from the time a formal request is made and a medical assessment is conducted. This would accord with medical evidence given at the hearings that no decision should made in haste when a woman presents as suicidal because with the right supports given to her, such heightened states of distress can pass.

How is the right to life of the unborn vindicated in accordance with the right of representation and fair procedures set out in Dellway and Others v.NAMA 2011? What is provided for in this Bill is the making of a medical decision with legal implications for the unborn as a constitutional person and as a third party to the process which is covered by the Dellway case but which does not appear to be addressed by this legislation. I know this is an issue raised by many of the speakers in the House. There are no term limits and why is no reference made to viability? The X case makes no distinction and this continues to be the case. The Government has maintained that no viable foetus will be aborted so why not state the obligation to deliver such a viable foetus explicitly in the legislation?

It is easy to conclude that we have attained a state of enlightenment or sophistication - if the two are different - so much as to determine the course of our lives. Today, as distinct from days past and days synonymous with ignorance from our point of view, is defined as the era of self-awareness which translates to self-ownership or possession.

We believe we have come to that point where individually we can say "this is my life to do with as I choose. I determine the course of my life. I need no God or external authority to be accountable to." Is this the truth? In the era of the black box of technology, all that matters is what the thing does. We leave the concern for "how" to the few who know its architecture. What makes the gizmo in our hands tick is rocket science for the majority of its users and we trust the few to know what we want. According to this viewpoint, since we determine the course our lives take, what we want is paramount and what we want are tools to live as we please. This ignorance of what is inside the solid state of the black box extends, by default, to what makes us tick as individuals and as a community of humans and how we are created.

In that regard, we deliberately choose not to know the price others paid to make our lifestyle possible but there is no escaping the fact that many gave their lives for our existence. We are not the source of our own existence. Nobody wants to know the price parents, particularly women, the local community and every generation before us have paid for the environment and supports that make possible the peaceful and healthy transition from foetus to young adulthood to what we then call "my life". So many before us and around us have been servants to make reality the singular gift that says "my life". Who then can speak for that life and propose its termination? It is a subject we must surely approach with awe and humility, not impatience or cynicism.

I have many issues of concern, as have many other speakers. I hope the Minister can bring clarity to these issues in his summing up on this Stage this evening.

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