Alex White (Dublin South, Labour) | Oireachtas source

I quoted Deputy Michael McGrath fairly. I have simply said in the course of the debate, as I am entitled to do, that he put that question and that I think the real question to put is the other one. That is a perfectly reasonable point to make in the course of debate. It is very hard to understand why we are having interruptions from a colleague at the very end of the debate. We know that it cannot be said that it would never arise. We simply cannot say that and that is the basis on which we must proceed as legislators.

There is another aspect I have genuinely had difficulty in understanding. This is a genuine objection I have because it has never really been properly explained to me. It is the notion that if, it enacted, section 9 will have the effect of normalising suicide. I genuinely cannot understand how it could reasonably be suggested this would follow. We have a provision in our law that everybody accepts is entirely limited and restricted. I cannot understand how the rare and restricted circumstances covered by a very rigorous process set out in the Bill, whereby a woman who finds that she is suicidal and seeks to have a termination must face the very rigorous requirements set out in section 9 and is or is not certified as having a real and substantial risk to her life that can only be averted by a termination, would have the effect of normalising suicide. I simply cannot understand this. The point has been made and repeated, but it has never been explained to me.

The Government is aware that concerns have been raised about whether it could be possible to insert gestational limits on the carrying out of the medical procedures mentioned in the Bill. It is important to stress that the proposed legislation only covers situations where there is a real and substantial risk to the life, as distinct from the health, of a pregnant woman which may only be averted by a termination of pregnancy. To put the matter plainly, it will only allow a pregnancy to be terminated where it is judged that a woman may otherwise die. I do not accuse Deputy Peadar Tóibín of this, but others have posited quite grotesque scenarios relating to late term pregnancies that might arise in very rare circumstances and which I think would almost certainly never arise, although there can be no certainty. If they ever did arise, they would be very rare and the Minister for Health was unfairly represented as having a particular view in this regard. He and I are of the same view, as reasonable people would be in any analysis of the Bill, that such circumstances would be extremely rare. If they did arise, let us not forget what also might happen in that circumstance, namely, a woman may die if this procedure is not afforded to her. There is very little reference to this fact when that particular circumstance is being addressed.

I will repeat a point made before, that while a woman has a right to have the pregnancy brought to an end, the provisions included in the Bill are intended to ensure that in circumstances where the unborn may be potentially viable outside the womb, doctors must make all efforts to sustain his or her life after delivery. It is very important to recall the definition of "reasonable opinion". Sections 7 to 9, inclusive, require doctors to give a reasonable opinion. "Reasonable opinion", as defined in the definition section of the Bill in respect of a medical practitioner or a review committee, means an opinion formed by the practitioner or committee in good faith which has regard to the need to preserve unborn human life as far as practicable. Doctors must have regard to the need to preserve unborn life as far as practicable, which is exactly what the Constitution states.

I assure all Deputies that, as drafted, the Bill prohibits the killing of a viable foetus. Including a reference to viability would not provide for further clarity in that respect because pregnancies become viable at different points in their development and the clinical foetal assessment would still be required, as is the case. Let us remember what the test is. There must be a real and substantial risk to the life of the mother that can only be averted by the procedure. I know Deputy Charlie McConalogue raised this question when he, quite reasonably, pointed out that there were gestational limits in other jurisdictions with quite liberal abortion laws. That is precisely the point. They are jurisdictions with liberal abortion regimes, but that will not happen here under this legislation. We will not have a liberal environment on foot of this legislation; far from it. Therefore, we are not comparing like with like.

Some Deputies have expressed concern about the potential criminalisation of pregnant women. I wish to clarify that a woman can be prosecuted for an unlawful abortion under an extraordinary provision in the Offences Against the Person Act 1861 which is still on our Statute Book. If found guilty a woman "shall be liable to be kept in penal servitude for life". The proposed legislation does not create a new offence for pregnant women; it brings the penalty for this offence in line with current parameters, in other words not exceeding 14 years instead of life.

I certainly recognise the potential criminalisation of a pregnant woman is an extremely difficult and sensitive matter, to put it at its mildest, but this provision reflects the State's constitutional obligations arising from Article 40.3.3° and the constitutional protection of the life of the unborn. This is a very grave and important point. To suggest we could do anything other than have a criminal sanction associated with a breach does not face the reality of what the Constitution does. Just as I say to colleagues opposed to the legislation that we cannot ignore the Supreme Court decision in the X case I must also say that I must also respect, and do profoundly respect, the Constitution, although as a citizen I find quite extraordinary and frankly offensive the notion there would be a criminal sanction involved for a pregnant woman in these circumstances. The Constitution is clear on the right to life of the unborn and the protection of the right to life of the unborn, and until such time as this is revisited it remains the position. In so far as there is a statutory provision restating the offence there is no way of avoiding a criminal sanction of the level proposed in the legislation. The sentence to be applied in a particular case is always a matter for the court involved and in the circumstances we have here a prosecution may only be brought with the consent of the DPP.

The Bill clarifies existing law and I am conscious of the point raised by many Deputies that it does not address many circumstances which arise too often for pregnant women throughout the country. Many colleagues would like to see other grounds included in the legislation, particularly in heartbreaking cases where there is a diagnosis of a fatal foetal abnormality. With profound regret I must say these provisions cannot be included because the purpose of the Bill is not to confer new rights to termination of pregnancy but to clarify existing rights.

The question of representation or separate representation for the unborn was raised and it has been debated here and outside the Chamber. It is important to be clear about what people must mean by separate representation for the unborn, how it might possibly work and what precisely is being suggested. It is not simply a case of the Attorney General appointing a lawyer just to act in some generalised way. Ours is an adversarial system and what is being proposed, because it can only mean this, is to introduce some type of procedure allowing for a forensic cross-examination of a woman, essentially of her bona fides to establish whether she is making an honest claim. What else could it mean? This is all it could mean. Article 40.3.3° neither requires nor contemplates such a procedure. The Constitution requires the State with due regard to the equal right to life of the mother to respect and, as far as practicable, by its laws to defend and vindicate the right to life of the unborn. If one reads the section closely, the State's obligation is to be carried through in its laws. The requirement on the State is to vindicate the right to life of the unborn in its laws. This is why the legislation before the Oireachtas sets out a rigorous certification procedure by doctors who are expressly required to have regard to the need to preserve unborn life as far as practicable. It would be wholly inappropriate and entirely unnecessary constitutionally to introduce a legal procedure with separate representation for the unborn, and frankly there is no proposal to do so in the Bill.

Some Deputies raised the issue, quite reasonably, of greater supports for crisis pregnancy in general. I reiterate the HSE crisis pregnancy programme funds 15 service providers to provide counselling services in more than 50 locations nationwide. A number of these services also provide access to free post-termination counselling and medical checkups. I urge all women who have a termination of pregnancy to avail of these services to which they are entitled and which are provided free of charge.

The main purpose of the Protection of Life During Pregnancy Bill 2013 is to restate the general prohibition on abortion in Ireland by regulating access to lawful termination of pregnancy in accordance with the X case and the judgment of the European Court of Human Rights in A, B and C v. Ireland. There is much talk about stepping stones and floodgates and what the future will bring. I do not know what the future will bring on this issue. I agree with Deputy Kyne and many others, and Deputy Walsh also made the point perhaps from a different perspective, that this issue will not be finally resolved in this legislation because how could it? No country in the world can draw a final line in the sand under this issue. It simply is not a realistic proposition. Perhaps there will be a future referendum. The case for a future referendum will be made and it has some force, but the requirement on us in this context with this legislation is to give legislative foundation to a right which already exists in our Constitution. We have set out a procedure by which it can be availed of. It is balanced legislation. Deputy Catherine Murphy stated the Bill is the bare minimum and I must agree with her on this. It is a fair assessment. On the other hand, Deputy Clare Daly suggested we could have done much more, and I was surprised to hear her state this because, in fairness to her, the two draft Bills she brought forward made it very clear what the constitutional constraints were.

Two quotes from two colleagues fairly reflect on what is being done here. They are not particularly legalistic, but they encapsulate very fairly and in a very reasonable way what we are doing. Deputy McLellan described the measure as a matter of common decency and Deputy Cowen described it as a good faith measure. I thank both of them for their support for the Bill. I thank all Deputies in the House who have set out their views and for contributing to the debate, whether for or against. This legislation is measured, and it is fair-minded and balanced. I commend the Bill to the House.

See this speech in context