Róisín Shortall (Dublin North West, Independent) | Oireachtas source

Amendment No. 27 proposes to amend section 4 in respect of regulations. I have already expressed concern about the open ended nature of this provision for making regulations. It is unusual in legislation that the regulations proposed to be made are not specified in all instances. A number of speakers requested that the regulations be published in order to allow a full and thorough debate on the legislation. Unfortunately, that request was not acceded to.

Amendment No. 27 would insert a new paragraph (c) in section 4(1) to set gestational limits for the termination of pregnancy. Many people find it difficult to understand how the Government could propose a termination regime that does not set out gestational limits. There was limited public awareness of this issue until quite recently. The issue has to be addressed and, therefore, I propose that provision be made for the Minister to set term limits for termination. I am not being overly prescriptive because the thinking on this issue changes according to progress in medical science. In the UK, the limit was previously 28 weeks and has since been reduced to 24 weeks to reflect medical science.

This issue was raised at some length in the committee hearings by the Master of the Rotunda, Dr. Sam Coulter Smith. A number of speakers have quoted his comments. While his concerns were raised in a very clear and a stark way no serious attempt was made to address them. Dr. Coulter Smith suggested that premature delivery of a baby at 25 weeks gestation could lead to his or her death or result in significant developmental issues such as cerebral palsy. He pointed out that the outcome would be entirely iatrogenic, in other words, a result of the treatment provided. He raised the question of the responsibility of those clinicians who agreed to be involved in this process. What is the responsibility of clinicians who carry out a treatment that results in significant disability to the baby? This was a serious concern for Dr. Coulter Smith and his colleagues. The significant ethical dilemma and legal questions that have been raised by people working at the coalface have not been addressed satisfactorily by the Minister for Health. I call on him to set out the position on the ethical dilemmas that have been identified and the legal situation as regards clinicians who participate in a process having that outcome. People working in the field, and others, are entitled to a response.

When this issue was raised previously, reference was made to legal difficulties because the right to a termination in the case of a threat of suicide arises from a constitutional provision. That is one view or reading of the situation but Prof. Gerry Whyte from the law school in Trinity College Dublin has outlined his very different understanding of the situation, which is worth rehearsing given Prof. Whyte's experience in this area. He states:

Recently the view has been expressed that it may not be constitutionally possible for the Oireachtas to prescribe time limits on the availability of abortions under the proposed Protection of Life during Pregnancy Bill 2013. In my opinion, this view is at least questionable. In enacting this legislation, the Oireachtas has to ensure that it complies with the terms of Article 40.3.3 as interpreted by the Supreme Court in the X case. In that case, the Supreme Court did not advert to the issue of any time limit on the availability of abortion necessary to avert a real and substantial risk to the life of the mother and this led some commentators to suggest that X was authority for the proposition that an abortion to save the life of the mother could be obtained at any point during the pregnancy. However in deciding the principle of law established by a court decision, one has to take account of the material facts of the particular case. In my opinion, one of the material facts of the X case was that, by the time the Supreme Court handed down its decision, Ms. X was, at most, only twelve or thirteen weeks pregnant and so it was clearly not possible to attempt to save the life of the foetus as well as the life of the mother. Consequently in my opinion, the decision in X can have no application to cases in which the pregnancy is at such an advanced stage that it may be practicable to save both lives. To that extent, I would consider the right to an abortion established in the X case to be a time limited one that expires once it is practicable to save the lives of both the mother and the foetus. If I am correct in this, then it would seem entirely appropriate for the Oireachtas, if it saw fit, to legislate for time limits indicating at what point in a pregnancy it could be deemed practicable to save both lives.

I want the Minister to respond to those serious concerns that have been raised not just by Members but by two very eminent people in the medical and legal fields. Despite the fact that they were raised at the committee hearings and on Committee Stage, they have not been satisfactorily addressed.

See this speech in context