Catherine Murphy (Kildare North, Independent) | Oireachtas source

The penalty of 14 years in prison and an unlimited fine is an extraordinarily onerous sanction. It does, without question, carry forward the chilling effect deriving from the Offences Against the Persons Act 1861 into the new legislation. The European Court of Human Rights, in its deliberations in the case of A, B and C v. Ireland, paid significant attention to the threat of criminal prosecution under the 1861 Act, the severity of sentences likely to be imposed on conviction and the chilling effect this had on clinicians in terms of their willingness to make a determination and treat women in need of lawful termination services.

That is a key issue. To impose a 14 year sentence opens up the prospect of a challenge that may be successful. The criminalisation of pregnant women under the provisions is likely to act as a significant deterrent to women seeking services under the Bill. Several Members have said women will continue to go to Britain even where there is an entitlement under the Constitution. It could open up the State to further prosecution under the European Convention on Human Rights. A remedy that is not accessible is not a remedy and so it is tantamount to no remedy in international law. Deputy Collins referred to people going to other jurisdictions so I will not labour that point. We are all getting tired and coming towards the end of the debate.

In setting out such a punitive regime pertaining to unlawful terminations, clinicians are likely to err on the side of refusing to certify women seeking terminations under the Bill in order to have certainty of avoiding prosecution. I did not think that was what we were trying to achieve. I have serious concerns about the sanctions. I do not understand why the standard sanctions that apply to clinical malpractice do not apply in this case. It is extraordinary and almost unique that this is treated in a separate way.

Criminal sanction is warranted for backstreet abortions or where people are unlicensed. It is intended only to address the likes of clandestine medical institutions with untrained and unlicensed people. It is reasonable that the kind of sanctions here will make the legislation a great threat rather than an enabling item of legislation for women to get something they are entitled to under the Constitution.

There could be unintended consequences. We may find unsafe practices, such as women taking large amounts of the contraceptive pill or a rolling back of the availability of contraceptives where people look for alternative solutions. The sanctions are out of keeping with an honest approach even in a highly restricted sense. I am concerned we are opening ourselves up to other challenges, some of which are likely to succeed.

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