Seán Conlan (Cavan-Monaghan, Fine Gael) | Oireachtas source

I met a large number of individuals and groups to discuss this issue and the proposed legislation. It is clear that the vast majority of people whom I met were very sincere and exercised in articulating their concerns about the content of the legislation. There is no doubt that many individuals who would define themselves as being either pro-choice or pro-life will be unhappy with the final legislation passed in this House. Ultimately, however, the Government has a responsibly to enact laws which are consistent with the views of the people as set out in the Constitution and interpreted by the Supreme Court. The Government is also obliged to provide clarity in the law under the terms of the judgment handed down in the A, B and C v. Ireland case. Many of the pro-life individuals I met would like to another referendum to be held in order to narrow the definition of a lawful termination to exclude a termination where the main risk factor to the life of the mother is based around a risk of suicide. Many others are quite clear that everything should be done to save the life of a mother where there is a real and substantial risk to her life, regardless of whether that risk is physical or psychological in nature. The vast majority of people I met who personalised the matter in order to include their own loved ones were very clear in stating everything should be done primarily to save the life of their loved one, regardless of from where the risk emanated.

A substantial number of people expressed the view to me that a termination should be available for the victims of rape or incest or where a foetus had a fatal foetal abnormality and would not be viable outside the womb. They will not be satisfied with this legislation, but in the absence of a referendum, the Government simply cannot act on their wishes. If it were to do so, it would be acting in an unconstitutional fashion. I met very few people who said they wished to see abortion on demand introduced in this country, either now or in the future. A substantial majority of the people are of this view, as has been consistently shown in opinion polls during the years. This reflects the view of the vast majority of the people that every life is precious and that a termination of pregnancy should only be lawful in the very restrictive circumstances I have outlined.

The people have given their views on this issue in three previous referendums. Some speculate that the people were confused about what they were voting on in the two referendums held in the aftermath of the decision handed down in the X case. The fact remains, however, that on two previous occasions the people rejected amending the Constitution to remove a real and substantial risk of suicide as a legitimate ground for obtaining a termination in Ireland. The country was fairly evenly divided on the most recent occasion. I am not convinced that the result would be any different on a third occasion. Given the opinion polls and changes in societal attitudes during the past decade, I would conclude that the margin to retain the status quo would be much wider than in 2002.

I will now focus on the text of the Bill as it stands. I have engaged in discussions with the Minister for Heath, Deputy James Reilly, on how the legislation will operate in practice. He has articulated to me his understanding, based on legal advice he has obtained on section 9(1)(b), that in a situation where a woman with no history of mental illness presents as suicidal and refuses alternative treatments, a medical practitioner cannot certify in good faith and his or her reasonable opinion that said risk can only be averted by carrying out a termination. That is of critical importance as it contradicts some of the testimony at hearings held by the Oireachtas Joint Committee on Health and Children.

I would interpret this as meaning that a medical practitioner who did certify in these circumstances would not be able to avail of the exemption contained in section 22(4) of the Bill and would be committing an offence. He or she would be committing the offence of intentionally destroying unborn human life and would be liable if found guilty to a fine or imprisonment up to a maximum of 14 years. This is a severe penalty. I believe that, if applied as envisaged, this will ensure the legislation will be extremely restrictive. It illustrates that the Taoiseach, the Minister for Health and the Government take their obligation to protect the life of the unborn child, with due regard to the equal life of the mother, as contained within Article 40.3.3° of the Constitution, very seriously.

I have discussed with the Minister for Health certain aspects of the Bill, particularly sections 2, 3, 4, 7, 8, 9, 10, 12 and 19. I have done this because I believe additional safeguards would be helpful in reassuring people who are concerned about the Bill and have real reservations that unintended consequences cannot and will not result from the passing of this Bill. It is crucial that all efforts are made to accommodate the views and very real concerns of as many Members of the House as possible.

I ask the Minister, on obtaining the advice of the Attorney General, to bring these possible amendments to the attention of his Cabinet colleagues prior to Committee Stage. I will also forward them to the Chairman of the Joint Committee on Health so that members may discuss and consider adopting the amendments. The first suggested amendment is to section 2(1): in the definition of "reasonable opinion", to insert at the end of that definition, immediately after the words "as far as practicable", the words "and where such opinion is formed on substantial medical grounds having carried out an assessment of any real and substantial risk to the life of the woman in light of clinical research and having regard to the necessity, proportionality and justification for any medical procedure in the clinical circumstances prevailing at that time". This amendment would enshrine in the Bill the test currently set out in the Medical Council guidelines, which state:

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.

This amendment would also ensure that any reasonable opinion is based on medical grounds alone and not on any other extraneous non-medical consideration. It ensures compliance with the terms of Article 40.3.3° of the Constitution.

The second proposed amendment is to section 2(4). It seeks to insert a new subsection (4) as follows:

(4) Any medical practitioner involved in the treatment of a pregnant woman is obliged, subject to the provisions of this Bill and the right to life of that pregnant woman, to safeguard the unborn and, where it is potentially viable outside the womb, to make all reasonable and practicable efforts to sustain its life after delivery.

This amendment would explicitly give effect within the terms of the Bill to the assurances given by the Minister for Health in his Second Stage speech, during which he said:

The definition of "reasonable opinion" requires that this opinion must be formed in good faith and must have regard to the need to protect the right to life of the unborn and preserve unborn human life where practicable. The emphasis on preserving unborn human life means that a doctor will be obliged to make every effort to safeguard the unborn and, where it is potentially viable outside the womb, to make all efforts to sustain the life of the child after delivery.

The third proposed amendment is to section 2(5). It seeks to insert a new subsection (5) in section 2 as follows:

(i) Notwithstanding the provisions of sections 7, 8 and 9, where in the reasonable opinion of a medical practitioner a course of treatment or course of action could reasonably and practicably be offered to the pregnant woman which would avert the real and substantial risk of loss of the pregnant woman's life but which would not require the carrying out of a medical procedure in the course of which, or as a result of which, an unborn human life is ended, they may not conclude that the risk in question can only be averted by carrying out that medical procedure,

(ii) For the avoidance of doubt, a medical practitioner may not conclude that a course of treatment or course of action could not reasonably and practicably be offered to a pregnant woman merely because of the refusal of the pregnant woman to accept, permit or consent to the course of treatment or course of action in question.

The purpose of this amendment is to give effect to the requirement of the ruling of the Supreme Court in the X case that a termination of a pregnancy is permitted where there is a real and substantial risk to the life of a woman which could only be removed by terminating the pregnancy. It ensures that a medical procedure in the course of which, or as a result of which, an unborn human life is ended is only carried out as a last resort and where no other reasonable or practicable treatment is available.

The fourth proposed amendment relates to section 3(1), which defines appropriate institutions for purposes of the Bill. I propose the deletion of the words ", or by another person pursuant to an arrangement entered into under section 38 of the Health Act 2004". The reason is that the Schedule to the Bill designates 25 hospitals as appropriate institutions under the Bill and this section permits the Minister to add further hospitals to that Schedule. The amendment ensures that private clinics cannot be added to the Schedule by the Minister, and would explicitly give effect within the terms of the Bill to the assurances given by the Minister for Health in his Second Stage speech, during which he said:

Locations for the delivery of this treatment will be limited to public obstetric units or, where needed, large public multi-disciplinary hospitals with critical and intensive care facilities. ... For this reason, the definition of "appropriate location" includes a small number of large multi-disciplinary hospitals with intensive and critical care facilities. However, I believe the State's constitutional obligation and its responsibility to act in the common good demand that provision of terminations of pregnancy only be allowed in public health care facilities where they can be duly monitored and investigated, should the need arise.

Section 38(1) Health Act 2004 reads:

The Executive may, subject to its available resources and any directions issued by the Minister under section 10, enter, on such terms and conditions as it considers appropriate, into an arrangement with a person for the provision of a health or personal social service by that person on behalf of the Executive.

Such a wide scope could extend the provisions of section 3 outside the close parameters outlined by the Minister. The Minister would retain the power to specify further institutions for the purposes of section 3 where those institutions are managed by the HSE. The specification of a private clinic would, however, not be permissible without an amendment of the Act.

The fifth proposed amendmentseeks to amend section 4 by inserting a new subsection (4) as follows:

(4) For the avoidance of doubt, any regulations made under this section must be consistent with and acknowledge the right to life of the unborn and, with due regard to the equal right to life of the mother, respect, and, as far as practicable, defend and vindicate that right.

This proposed amendment would explicitly limit the regulations that could be created to those that comply with the provisions of Article 40.3.3° of the Constitution as inserted by the Eighth Amendment in 1983.

The sixth proposed amendment relates to a number of sections. It proposes to add the words "in their unanimous reasonable opinion" at section 7(1)(b)(i) and section 9(1)(b) immediately before the words "there is a reasonable and substantial risk of loss of the woman's life"; to add the words "and in his or her reasonable opinion" at section 8(1)(b) immediately before the words "believes in good faith"; and to add the words "in its reasonable opinion" at section 13(3)(a), immediately before the words "there is a reasonable and substantial risk of loss of the pregnant woman's life". This amendment would explicitly give effect within the terms of the Bill to the assurance given by the Minister for Health in his Second Stage speech that doctors would be required to conclude that in their reasonable opinion there was a real and substantial risk to the life, as opposed to the health, of the pregnant woman arising from a physical illness that could only be averted by carrying out that medical procedure." The Bill as initiated does not require doctors to certify that there is a real and substantial risk of loss of the pregnant woman's life in their reasonable opinion; this amendment would fix the omission.

With regard to applications for review of a medical opinion, a new section 10(3) could state as follows: "(3) The three medical practitioners who make a section 9 certification shall forthwith make an application to the Executive for a review of the relevant decision and the said section 9 certification shall have no effect or standing until and unless it is upheld by a review committee under section 13(3)." Ancillary amendments could be as follows. In section 12(1), to add the words "or section 10(3)" after "section 10(2)" and in section 9(1) to add the words "Subject to section 10(3)," at the beginning of the subsection. Such an amendment would ensure a fair and independent assessment of the decision to terminate an unborn life on grounds of suicidal ideation and ensures the constitutionality of section 9 by ensuring an impartial balancing of the equal rights of the pregnant woman and the unborn life. It merely invokes the same procedures that are available to the pregnant woman in the event of a refusal of certification under Chapter 2 of the Bill to have the decision of the medical practitioners in question independently reviewed. The reasons given for the following amendment also substantially apply to this amendment.

My last amendment is to section 19, which deals with certification. In paragraph (b) I seek to replace the word "may" with the word "shall". The reason for this is that the current text does not require the certification issued by medical practitioners to include the clinical grounds for carrying out the medical procedure to which the certification relates. The current text merely states that it may include those clinical grounds. The fact that the Bill as initiated refers to certification on clinical grounds in this section is not reflected elsewhere in the Bill. In fact, this is the only section in the Bill that refers to "clinical grounds". This draws attention to the lack of a requirement for the decisions of medical practitioners to be made on medical or clinical grounds, with the Bill currently merely requiring decisions to be made "in good faith" without any requirement for substantial and objective medical or clinical grounds to exist.

I suggest these amendments in the spirit of ensuring that as many Members of this House as possible are satisfied that the legislation complies with the Constitution, and that what is enacted is, in effect, what the Minister and the Taoiseach have previously articulated, protecting the life of both mother and child as much as permissible within the bounds of the Constitution. It would be remiss of me not to bring such proposed amendments to the attention of the House and I hope to participate on Committee Stage.

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