Lucinda Creighton (Dublin South East, Fine Gael) | Oireachtas source

Who or what else can I consult - the latest opinion poll, the party hierarchy or the editor of the most popular newspaper? I mentioned groupthink, which is a corrosive affliction in this country. We saw it in the Haughey era, we saw it during the Celtic tiger era and we see it on this question of abortion. It is easy to understand why people in positions of responsibility want thorny issues to simply disappear. It is far easier than risking conflict or unpopularity, or worse, paying the price for speaking up. Would the country not have been much better served in the 2000s had more people on the Government benches, in academia or in the media been prepared to raise their heads above the parapet? I am sure there were many conscientious objectors who realised that what was happening was wrong yet they all remained reticent to avoid the wrath of their colleagues, the public, their bosses, the media and so on. Conscience lost out and the country suffered greatly. We all have the right to conscientious objection. It is enshrined in Article 18 of the UN Universal Declaration of Human Rights, which states that "everyone has the right to freedom of thought, conscience and religion". I contend that this freedom of conscience is not just a right but a duty.

I will briefly address some of the substance of the Bill. Given my misgivings about this Bill, I am hoping that some substantive changes might be accepted to improve the legislation in order to make it compatible with our constitutional obligations as legislators. It is fair to say that sections 7 and 8 do not cause me any concern. I welcome the fact that we will be ensuring certainty for medical practitioners and pregnant women in a case where there is a real and substantial risk to the life of the mother in accordance with the test set down by the Supreme Court in the X case. It is right and proper that all women, including prospective mothers, can benefit from the highest possible standard of care in Irish hospitals. No woman should lose her life through inaction during pregnancy. I hope and believe that we are all agreed on that. That is surely a pro-life position.

However, I am deeply concerned about the inclusion of the so-called suicide clause in the legislation, which is section 9. This, in my opinion and that of the vast majority of psychiatrists in the country, is a very worrying step. Not only does it fly in the face of the evidence presented at both hearings of the Oireachtas Committee on Health and Children where the overwhelming view of the medical profession was that abortion could never be a treatment for or solution to suicidal intent, this clause has the potential to normalise suicidal ideation by enshrining suicide on our Statute Book for the first time. This is of major concern.

The only way to avoid the introduction of this flawed element of the legislation is to omit it entirely from the Bill, and I urge the Minister, Deputy Reilly, to read and reflect upon the expert psychiatric evidence presented before the hearings of the Oireachtas Joint Committee on Health and Children. I also ask him to study the alarming but illuminating statement endorsed by 113 Irish psychiatrists who unanimously declared the suicide clause is simply unworkable.

It seems from recent statements from Ministers that the Government's view is there can be no term limit on the right to end a pregnancy by inducing delivery. If a woman's life is in danger and the unborn baby is deemed to be viable, there is an obligation to bring forward delivery to save the life of the woman while making all efforts to save the life of the baby. This has the potential to cause major medical negligence litigation, but I do not propose to address this point in any detail as others have already made the point cogently. Further to this position, the Government has expressed the view that whether a pregnancy can be ended by means of an abortion depends on the gestational stage of the unborn child. If a foetus is viable then delivery must be induced and an abortion is not permitted. The clear result of all of this is an inherent term limit for abortion in the legislation. If this prohibition on abortion after viability is assumed and articulated publicly by the Government, then why not enshrine it in the legislation?

In JM Kelly: The Irish Constitution, originally authored by former Fine Gael Deputy and Minister, Professor John Kelly, the leading authorities on Irish constitutional law, Dr. Gerard Hogan and Professor Gerry Whyte, support this line of argument and go so far as to state it is disingenuous to suggest the X case allows abortion until the point of birth. Logically and legally by this analysis there is a constitutional term limit already in place, namely, the point of viability outside the womb. The Government and leading academics agree on this point. Given there is agreement between the Government and leading constitutional lawyers in the State, why should this not be expressly stated in the legislation? I am strongly of the view an amendment to the legislation clarifying and confirming the legal term limit for the carrying out of an abortion is necessary. It is also perfectly constitutional and further, it is the absolute minimum protection necessary in a civilised country. Such a provision would give firm legal basis to what is already the interpretation of the Government and it would provide a small degree of reassurance to those citizens with genuine concerns about the possibility of abortion up to full term which, incidentally, does not exist in any jurisdiction even regimes were liberal abortion on demand exists. They all impose term limits.

I wish to discuss the right to vindicate the constitutional rights of the unborn. I am entirely perplexed as to why the right to legal representation for the unborn is excluded from the legislation. It is the minimum protection required to be afforded to unborn children. It is important to remember at every step of this legislative process that the unborn child is a human being - a person - and has full rights as such under our Constitution. This means that as a constitutional person an unborn baby has the exact same right to life as any other living constitutional person. This concept can sound abstract to many people. They might ask how an unborn baby with no voice and no capacity can benefit from legal representation. In reality, in the pursuit and vindication of human rights, this is absolutely nothing unusual. A baby one day old can be represented in the courts and this happens regularly, for example, in medical negligence cases through the ad litemprocedure. Persons of limited mental capacity can be represented in our courts to have their rights vindicated. This is not a luxury afforded the most vulnerable people in our society. On the contrary, it is often the only way in which they have their constitutional and human rights vindicated in a world where otherwise they might suffer greatly.

I understand that some people do not believe that a foetus is a person and, therefore, that it has no legitimate expectation to have its constitutional rights vindicated. However, this is simply an ideological position and is not borne out by the law or our Constitution, which explicitly recognise a foetus as a person having the same and equal rights as other people.

I can only assume that the logic behind this omission in the Bill is that legal representation is not warranted on the grounds that medical decision making does not warrant consultation with all parties. However, it is difficult to think of any other medical procedure or decision in which the rights of a third party and not those of the patient directly are affected. Surely legal representation is more appropriate in these cases, not less.

Decisions made under sections 7 and 8 are purely medical and based on empirical evidence. However, decisions made under section 9, relating to suicidality, are of a different nature. They involve judgments of credibility, veracity and so on by psychiatrists, not simply empirical observations by doctors. As a result, the decisions should be detailed, forensic and investigative and take place over a number of days at a minimum. This difference in nature between the decisions to be made under sections 7 to 9, inclusive, was the central point of the article written by the former Director of Public Prosecutions, DPP, Eamonn Barnes, in The Irish Times. These decisions are also quasi-judicial in nature, given the panel system. Surely the unborn should be represented in that scenario. It is impossible to justify a situation whereby the unborn, a constitutional person-----

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