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

I move amendment No. 22:

In page 7, between lines 12 and 13, to insert the following:“ “viable”, in relation to a pregnancy, means a foetus or embryo that is, or would be expected to be, capable of surviving independently outside the womb by reason of its gestational age;”.

I would like to speak to amendments No. 22 and 85. They would make it an offence for an abortion to be carried out under sections 7 to 9, inclusive, of the Bill in situations where the unborn child is viable and where it is possible for labour to be induced and the life of the unborn to be saved. This would simply reinforce and enshrine in the legislation what the Government has stated to be the constitutional position that once an unborn child reaches the point of viability, there is a legal onus on doctors to preserve the life of the unborn. This view that this should be enshrined in the legislation is substantiated by the most eminent constitutional lawyers in the State, Mr. Hogan and Mr. Whyte, in the fourth edition of J. M. Kelly: The Irish Constitution. They state the following:

Though none of the judges in the Supreme Court adverted to this point, it cannot be imagined that the ruling in X would permit abortion at any stage in pregnancy, no matter how late. Clearly if the foetus had developed to the point where it was or would soon be viable outside the womb, it would be possible to vindicate both the life of the mother and that of the foetus by inducing labour or performing a caesarean section, and it is disingenuous to suggest that X permits an abortion at that point.

If this is already stated Government policy and what the Government believes, and if leading constitutional academics agree, I am simply asking that we expressly state it in the legislation. The wording I have proposed is virtually identical to that presented to the Joint Committee on Health and Children by Dr. Simon Mills. On the whole, it is fair to say that Dr. Mills has proposed an abortion regime which would be considerably more liberal than that provided for in the Bill or, indeed, Article 40.3.3°. However, he felt that a clear and unambiguous term limit ought to be incorporated into the Bill. The amendment would compel the Minister for Health to seek medical advice on the gestational stage that can be considered to be the point of viability for all unborn human life. The amendment reflects the fact that the point of viability can change over time and has reduced steadily in recent decades due to advances in medical science. I hope that continues. I raised the issue informally with the Minister prior to Report Stage and I received a short response. The point argued by, presumably, the Attorney General is that the Government is reluctant to provide a specific referral pathway and prefers to leave it to doctors. There is a little too much of that in the legislation. I appreciate that doctors act in good faith but we should also give them guidance. Essentially, we should give legislative status to something that is already a constitutional reality. In a nutshell, at the point of viability the baby has to be saved. The amendment reflects the evolution of medical science.

Many of us have heard from concerned members of the public, including those who are in favour of a woman's choice when it comes to abortion, who are concerned about the idea that no limit is set out in the legislation. If we are providing a legislative framework, it is not good enough to legislate for certain aspects or interpretations of article 40.3.3° while ignoring others. This is what I am trying to achieve. I have acted in good faith. The amendment would allay the genuine concerns of many citizens. The vast majority of jurisdictions in which far more liberal abortion regimes are in place - the types of regimes I hope we never see in this country - nonetheless enforce gestational term limits for the carrying out of abortions. That is the minimum our citizens deserve and the minimum we should offer in terms of protection of the unborn.

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