Seán Ó Fearghaíl (Kildare South, Fianna Fail) | Oireachtas source

I cannot rise to add my few words to what has to be said without paying tribute to the Minister of State, Deputy Creighton. She has spoken with courage, conviction and passion about an issue that I know is close to her heart. I commend her on that.

Like many previous speakers, I feel obliged to contribute to the debate as it is one on which I believe there is an obligation on Members to indicate where they stand and, indeed, why they have reached the particular conclusions on this critically important legislative issue. Let me state at the outset that I am totally committed to the lives and welfare of women, and that any legislation which seeks to secure and enhance that objective is deserving of our full support. However, section 9 of the Bill before us takes the legislation far beyond this point and, in my view, it does so wrongly and unnecessarily.

Much has been said and written about the Supreme Court decision on the X case in 1992. Evidence was given to the Joint Committee on Health and Children by Dr. Maria Cahill and Mr. Paul Brady, BL, which raised the question as to whether the decision in the X case is binding on the State. In their presentations they quoted the former President of Ireland, the late Cearbhall Ó Dálaigh, and members of the divisional High Court, Judges Morris, Carroll and Kelly, as basically concurring. I quote them: "A point not argued is a point not decided. This doctrine goes for constitutional cases as well as for non-constitutional cases."

Additionally, in his submission to the Oireachtas committee, Mr. Paul Brady, BL, quoted Mr. Justice Brian Walsh, speaking extra-judicially at the National University of Ireland, Galway, about the eighth amendment to the Constitution.

According to Mr. Brady, Mr. Justice Walsh, speaking in this context of the eighth amendment, stated:

[It] confers no immunity for taking life and its stated objective is the preservation of and respect for life. It is perfectly consonant with the idea of safeguarding of the mother's life without intentional and direct intervention to terminate the life of the foetus. The claim that it admits of direct termination has never been fully argued. In the X case it was conceded. There was no legitimus contradictorto argue against such a construction and therefore the court's decision can only bind the particular case as it was based on a conceded and unargued construction. It is well established that neither a constitutional provision nor even a statutory provision can be construed on the basis of a concession if it were to be bindingin rem.

Another important contribution to note and put on the record of the House is that of Dr. Maria Cahill which states:

From a separation of powers perspective it would be remiss of me not to avert to the fact that, as Members of the Oireachtas, you know more than most that head 4 (or Section 9 as it is now known) is not compatible with evidence based best practice. What head 4 therefore asks you to do, as legislators, is to set entirely aside the medical knowledge that you have, to ignore the great clarity that the January hearings brought to this policy area, and to legislate instead in defiance of science and explicitly to contradict best medical practice, in the absence of a legal justification for that legislation.

For my part, I have been impressed by this argument. Nonetheless, and despite the passage of time, it is my opinion that the decision by the Supreme Court in the X case was wrong. At the end of the day, no court or Legislature can turn something that is fundamentally wrong into something that is right. Having mentioned the hearings undertaken by the Joint Committee on Health and Children I take this opportunity to commend Deputy Jerry Buttimer and members of that committee on the positive atmosphere and professional manner which prevailed over the six days of those hearings. However, it came as a great disappointment to many of us that the committee did not effect any significant change to the legislation as initially proposed by Government. Indeed, much of the professional evidence given was totally disregarded. In addition, I consider it bizarre to say the least that women with direct personal experience of abortion who sought to come before the committee were refused the opportunity to do so.

Section 9, which provides for the termination of pregnancy in the case of suicidal ideation, is clearly the most controversial. Without it, all Members who have expressed opposition to the Bill would be readily available to support it. The facts have been well documented, namely, one in 500,000 pregnant women will be suicidal because of their pregnancy; three of every 100 determined by psychiatrists to be at risk of self harm or suicide will go on to take their own lives and abortion is never a treatment for suicidal ideation.

Former Director of Public Prosecutions, Mr. Eamon Barnes, in an article in The Irish Times- this was also referred to by the Minister of State, Deputy Creighton, in her speech - sums up the particular problems that arise under section 9 as follows:

There is an immediate and obvious essential distinction between cases arising under sections 7 and 8, on the one hand, and cases arising under section 9 on the other hand. Issues which will, sadly but unavoidably, arise under the former category could be issues of objectively ascertainable physical fact, however difficult such ascertainment would in many cases be for the medical practitioners involved. They are peculiarly suited for professional resolution by such practitioners. While psychiatric expertise would no doubt be of assistance in ascertaining the reality of a claim that a woman is suicidal because of her pregnancy, it could scarcely be asserted that such expertise is peculiarly or exclusively appropriate for the resolution of such a claim. Obviously this would be particularly true of a case where a woman would make a spurious or dishonest claim of suicidal ideation for the purpose of obtaining a termination of her pregnancy under the provisions of the Bill if enacted in its present form.

Further on in the article Mr. Barnes offers us an opportunity to improve the legislation by proposing that the unborn child be represented in any case pursued under section 9.

He states:

Under the Constitution, and in particular article 40, a pregnant woman's right to life, like that of all others, must be vindicated by the State and its laws. Such a woman has a facility not available to the foetus, the facility to assert her constitutional rights. It could, and no doubt will, be argued that the provisions of sections 9 to 14 of the Bill constitute protection for the constitutional right to life of the foetus. It is necessary to consider if those provisions do in fact constitute such protection, and if they do, whether such protection is adequate and whether the provisions comply with the requirements of article 40, section 3, subsection 3, particularly but not exclusively because of the absence from them of any mechanism for the assertion on behalf of the foetus of its constitutional right to life corresponding to the facility available to the woman.

It is clear that a majority of Members propose to support the Bill before us. I appeal to them, when the opportunity arises in the days ahead, to support amendments which give effect to what Mr. Barnes proposes and make perfect sense in the circumstances.

I emphasise my total support for measures aimed at giving certainty to pregnant mothers about the high quality of care they will receive in maternity units and I do so as a brother, husband and father. In each and every case. it is essential to intervene to save the life of the mother. Equally, however, it is completely wrong to unnecessarily and deliberately take the life of the unborn child. I am convinced of the precious nature of human life in all its manifestations, from the point of conception to natural death.

The Deputies who, in conscience, support this legislation believe for the most part that it will not result in the opening of the floodgates. There is, however, at least a question as to whether the Bill achieves the objectives the Minister and Taoiseach purport to support. For my part, there is a significant risk that, as currently worded, it will usher in abortion on demand, despite the provisions of Article 40.3.3° of the Constitution. For this reason, I will oppose its passage through the House.

As Deputies Kirk, Mathews and others noted, there would be considerable value in availing of the opportunity to take Committee Stage in the Chamber where all Deputies would have an opportunity to contribute. I do not mean to detract from the work that has been done by the Joint Committee on Health and Children or the manner in which the Select Committee on Health and Children might transact its business. However, given the desire on the part of everyone to maximise involvement in the Committee Stage debate, it would be of beneficial to hold Committee Stage in the Chamber.

I reiterate my Opposition to the Bill, as it is currently constructed, and commend again the Minister of State, Deputy Lucinda Creighton, on her contribution.

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