Bernard Durkan (Kildare North, Fine Gael) | Oireachtas source

I thank the Leas-Cheann Comhairle and am delighted to have an opportunity to speak on this most important legislation. Like him, I have been around this House for similar discussions over many years. My earliest recollection of a similar debate was as a very small child, when legislation was brought through the Houses by the late Dr. Noel Browne, namely, the famous mother and child scheme. That was a long time ago and there have been many debates in this Chamber in the intervening years. The issue was revisited in the 1980s when a debate arose in which it was considered necessary to, in the phrase used at the time, enshrine in the Constitution the protection of the life of the unborn. Moreover, there was no general disagreement with that. However, the issue became really difficult at the time of the formulation of the wording. At the time, two Attorneys General advised the pro-life movement to the effect that the proposed wording would arrive at a situation whereby abortion in some shape or form would actually be permissible. This is what happened and it happened rather more quickly than people had anticipated. Incidentally, like the Leas-Cheann Comhairle and many other Members of this House, I have been the recipient of thousands of e-mails, letters and postcards, all indicating a particular preference. In common with everyone else, I have tried to respond, in so far as I could.

Like many Members of this House, I am a Catholic. I am sure I am not the best one in either this House or country and I certainly do not propose to judge any of my peers. I do not have the moral right to judge, except in a court of law, where that kind of judgment can take place. I wish to refer to a court of law because it has featured repeatedly in the course of this debate over the past six months. It has featured on the basis that the Supreme Court was wrong in its determination regarding the 1983 amendment to the Constitution.

That was on the basis that it did not hear all the evidence, but that is not the job of the court. The court heard all the evidence given to it and made a decision based on the evidence. Members have since reiterated that the judges made a judgment on the case presented before them. If they had not done that they would have been delinquent in their responsibility, but they did.

The problem was the equality of the right to life of the mother and the unborn. It was always understood that the medical profession and the State would do all in its power to try to ensure that was observed. However, a situation arose whereby a decision had to be made in favour of one or the other. That may seem to be a violation of what was decided by the people but the only way that could have been done at the time was to do nothing and observe both die, and that was not an option. I believe the Supreme Court was correct.

I would remind people inside and outside this House that one always disputes the decisions of the courts but whether we like it or not, when a case goes up along the line to the Supreme Court we must accept its decision. That is a sad fact of life, but that is the way it is. We may have our personal views but as the Supreme Court remains the supreme court in this country, there is nothing else to do other than appeal to a higher court elsewhere such as the European Court of Justice or whatever. That was always available to people. People could have done that if they wanted to, but they did not.

I turn now to the case presented and the recent events that took place. I attended the hearings in January and in May held in the Oireachtas and I compliment my colleague, Deputy Jerry Buttimer, on his chairing of those meetings. I compliment also all those who made submissions and appeared before the committee. One thing is certain, and I want to emphasise this point, depending on the person to whom one speaks outside this House the automatic response will be that the hearings determined clearly and unequivocally on one side or the other, but they did not. On the medical grounds the determination was quite clear. On the case of suicide, it was not clear; there was a debate about that.

I am in a quandary as to how to determine what was meant in some of the arguments made. It has been suggested to me that 130 psychiatrists made a submission to the effect that it was impossible to determine whether suicide was inevitable in certain circumstances. That may be the case, and that may be their view, but we must not forget that psychiatrists have addressed the courts and decisions have been made on the basis of their evidence, which was deemed to be good, sound, professional evidence. They did that in good faith.

Regarding the sequence of events leading to the situation in which we now find ourselves, we had the 1861 Act, which prohibits abortion. We had the Health (Family Planning) Act of 1979, which recites the prohibition on abortion. We had the 1983 Eight Amendment of the Constitution, which acknowledged the right to life of the unborn with due regard for the equal right to life of the mother. It is that equal right to which I have already referred in regard to the X case. We then had the X case, which sets out the criteria for lawful abortion or termination of a pregnancy. I have referred to that already.

We then had the 1992 Thirteenth and Fourteenth Amendments of the Constitution, which ensures the right to travel for an abortion outside this jurisdiction. Questions have been asked as to the reason young women in care should be allowed travel outside the State for such services. It is simply because the State is obliged to ensure that whatever right or entitlement is available under the Constitution is made available to such persons. To do otherwise would leave the State open to a legal challenge.

Similarly, I do not agree with those who say there is no obligation on the Oireachtas to legislate for the X case. The European Court has already referred to that. There may not be a legal obligation but in the event of the Oireachtas being unwilling or unable to provide a legislative base for the 1983 amendment to the Constitution, as interpreted by the Supreme Court, it could leave the State open to a serious legal challenge and consequential costs. I am not a legal practitioner. The Minister of State is, and he has considerable knowledge in that area. I do not wish to argue a case one way or the other at this juncture but I assure the House that from what I have read there is considerable ground for believing that could happen.

Much has been spoken about suicide being a ground for abortion but we always forget that the people of this country decided twice on this issue by way of referendum. We can view that any way we like, and there is no sense in saying that those in the different lobbies did that for contradictory reasons. That is not the issue; the issue is the final outcome.

At the same time people suggest we should have another referendum. I would have a concern about that for a different reason. I would seriously worry about using a referendum to bypass the Supreme Court in any country. It is a dangerous route to take and in other jurisdictions where that has been used as a means of dealing with the decision of a court that some people did not like, it had disastrous consequences.

It has been suggested to me that a pregnant woman has never committed suicide in this country. I do not wish to go into the particular details but that statement is untrue. For whatever reason women who were pregnant have felt suicidal and in those circumstances there is an obligation on all of us to ensure, in the event of that arising at any stage of their pregnancy, that they receive treatment. It cannot be treatment that excludes one type of treatment or another. It must be whatever treatment will deal with their particular situation. That is my view, and if we did not recognise that as legislators we are not doing our job.

In the past women here did not always receive the highest quality treatment. I have spoken about that previously. It is a fact of life that some of the procedures offered to or forced upon women in the past 50 years were unpardonable. We should never allow ourselves to even venture into an area whereby we determine the extent of the lack of facilities, services or treatment that might be made available to a woman or a girl in the event of becoming pregnant.

I am pro-life, as I am sure is the Leas-Cheann Comhairle and everybody else in this House. I am certainly not pro-death, as suggested to me in some e-mails I received recently. However, despite the best intentions, cases will arise whereby the life of the mother and the life of the unborn are in the balance. Two situations then arise. The first is the pre-viable state in which case a serious risk to the health of the mother will warrant, even more now under this legislation than under the previous amendment to the Constitution, that an intervention is required. The theory as put forward by some people is that the intention is to kill the unborn child. That is not true. It is not permitted under our Constitution, and there can be no doubt about that.

The second situation, and this was referred to obliquely and unfairly recently, is the post-viable stage of the unborn where a pregnant mother may find herself with a health condition that requires an intervention. It has been suggested that the intervention at that stage could lead to brain damage in the unborn child or whatever, and so it could, but so could a normal birth in normal circumstances. One thing is certain, however. In the event of the mother suffering from a condition that will ultimately lead to her death, there is no doubt in my mind that inducement is required.

I ask those who suggest inducement should not be allowed in such circumstances to give careful consideration to the matter. Ultimately, not allowing inducement would result in the willful death of the pregnant woman. It follows that if nothing was done in a scenario such as that to which I refer, the pregnant mother and her unborn baby could both die. In the past, both mother and baby have died. This matter must be addressed. Therefore, I strongly urge people to give careful consideration to all of the implications involved.

It must be acknowledged that pregnant women cannot always be entirely in control of the situations in which they find themselves. We all accept that unborn babies are very vulnerable. That is true and some of the situations which arise can be extremely difficult. However, expectant mothers can also be vulnerable and if they have particular medical conditions, they may not be in a position to offer advice on what should be done. However, it should not fall to a group of experts - regardless of whether they are men or women - to determine the treatment to which an expectant mother in circumstances such as those to which I refer is entitled. One can visualise what would happen if a male member of the public found himself requiring specific hospital treatment and he was left wondering whether the provision of such treatment would be approved by a particular body, group or court or at a public meeting. There would be a very understandable reaction from members of the male population to such an eventuality and they would be right. Similarly, women who find themselves in vulnerable positions should have the right to expect the protection of the State as laid down in the Supreme Court's interpretation of the 1983 amendment to the Constitution.

Another interesting matter to which I wish to refer is that which relates to conscience and conscientious objection. What the Government is proposing to do via the Bill is to try to ensure pregnant women will, within reason, have an expectation of standard or universal treatment when they present in hospital with particular conditions. This means that it will not be the responsibility of one or other body, institution or ethos to determine the extent to which a woman's condition will be addressed. This is critical and it was referred to by various individuals who contributed to the hearings of the Joint Committee on Health and Children. It is hugely important that a person going into hospital to receive treatment, particularly a woman with a problem pregnancy or who is facing an emergency as a result of such a pregnancy, will be catered for. I accept that most pregnancies are trouble-free, but it must be recognised that where difficulties arise, the woman involved is entitled to expect a certain response. The nature of that response must be laid down by the State. The entitlement of a woman to such a response is determined in law by the Supreme Court, regardless of whether her predicament arises on foot of a physical or mental condition. I do not believe we are in a position to second-guess the decisions of the Supreme Court in such matters. If we begin to do so, we will be faced with a problem. The Bill will, to a huge extent, eliminate variations in the treatment a pregnant woman can expect to receive when she presents with a particular condition.

Various references have been made to the separation of powers and the fact that the courts have no function in determining what the Oireachtas might do. However, the courts have the right to identify deficiencies in the extent to which the Legislature addresses issues which have arisen as a result of the evolution of the law or society over a period. That is what is being done in this instance. Avoiding identifying such deficiencies would be a dereliction of duty.

This is good legislation, it is sound, pro-life and sets out the parameters within which the terms of the 1983 amendment to the Constitution, as interpreted by the Supreme Court, should be followed. A tremendous job has been done in addressing that issue in the Bill which I hope it will be passed. I will certainly be voting in favour of it. I would have preferred if it included a provision in respect of rape and incest, but I recognise the reasons this could not be done. I have had some very interesting discussions with people who are strongly opposed to my point of view in this regard. I am sincere in my opinion on this matter and, as stated, I do not propose to sit in judgment on others and I do not propose to allow them to sit in judgment on me. I am not God and neither are they. Those who want to assume the position of a deity will be obliged to wait for the afterlife in order to do so. When and if that time comes and if we are to be judged, I hope we will be judged mercifully.

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