James Reilly (Dublin North, Fine Gael) | Oireachtas source

I thank all contributors to this part of the debate. Amendment No. 21 states:

In page 7, to delete lines 10 to 12 and substitute the following:“ “unborn”, means a foetus which has reached that stage of development at which, if born, it would be capable of life outside the womb;”.

What would that mean for a perfectly normal 16 week old foetus with no anomalies? It would have no protection. I will not accept that and the Government will not accept it.

These amendments are attempting to provide for lawful termination of pregnancy following a diagnosis of a fatal foetal anomaly or in the case of inevitable miscarriage. They were discussed on Committee Stage. I know that several of our colleagues in the Dáil would have liked to see these grounds and others being included in the proposed legislation. However, again for reasons clearly outlined by the Minister of State, Deputy Alex White, these provisions cannot be included. I have received legal advice to the effect that inclusion of this issue as a separate consideration in the Bill would go beyond the scope of the A, B and C v. Ireland case. The purpose of the Bill, as the Taoiseach and I have stated on many occasions, is not to confer new rights or to take away any right to a termination of pregnancy but to clarify existing rights.

I would like to ask a question in a completely non-confrontational way because I am little perplexed and my Chief Medical Officer is also having difficulty with it. I do not understand from where these figures of 1,400 to 1,600 cases per year come. We know that in somewhere between 2% and 3% of births there are anomalies, but only a very small number would be fatal foetal anomalies. If it is 2%, it is 1,400 and if it is 3%, it is 2,100, of which a very small percentage are fatal. That is in no way to diminish the hurt and the pain it causes an expectant mother. I have compassion and great sympathy in this situation, but the issue is beyond the scope of this legislation.

I would like to raise another point that will create real difficulties for us. How do we define "fatal foetal anomaly". If we are saying a foetus is incapable of independent life outside the womb, does that mean for five minutes, half an hour, one day, two days, one week, or ten weeks? I see real issues that must be addressed. I am not saying they should not be addressed, but they will certainly provide a real challenge in defining what we mean by it and in terms of how we can be certain about this before we give advice. We know there have been cases where advice was given and found to be wrong. That is not to denigrate the fact or deny in any way that advice has also been given that has been absolutely correct.

I regret that I cannot accept the amendments as they are beyond the scope of the Bill. As one of the Deputies across from me argued, there is a question about their constitutionality. There is a difference of opinion. As legislators, we need to have greater certainty when we pass legislation that we know will be challenged in the courts. The purpose of the Bill is not to confer new rights. Therefore, the amendments are beyond the scope of the Bill.

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