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

I thank all Members who contributed on this section of the Bill. I will speak first to my amendment No. 155 which proposes to delete subsection 22(4). While it was initially thought that this subsection was necessary for the avoidance of doubt, subsequent advice has proved that this is not the case and for this reason I propose to delete it.

I refer to amendments Nos. 150 to 154, inclusive, 157 and 158.

I will first address the amendments which aim to decriminalise a woman who unlawfully seeks or undergoes a termination of pregnancy. While I understand concerns in this regard, I wish to clarify that a woman can currently be prosecuted for an unlawful abortion under the Offences Against the Person Act 1861 and until this Bill is passed, that is the case. The Act states, "She shall be liable to be kept in penal servitude for life". Therefore, the provision proposed in the Bill does not create a new offence for pregnant women; it merely brings the penalty for this offence in line with current parameters, not exceeding 14 years instead of life imprisonment. The Director of Public Prosecutions will use his or her discretion and the wisdom of the office in deciding whether to refer a case. The courts will also have discretion. None of us would want to see a 14 year old in the situation described by Deputy Kelleher. I cannot imagine how it would happen but equally I cannot give a cast-iron guarantee that it will not happen. The sentence of 14 years is included on the advice of the Attorney General that there has to be some relativity to the current law which this Bill proposes to replace. As Deputy Creed and the Minister of State, Deputy Creighton have argued, Article 40.3.30. states that the life of the unborn is to be protected because it has an equal right to life. Therefore, this has to be vindicated

While it is recognised that the potential criminalisation of a pregnant woman is a very difficult and sensitive matter, this provision reflects the State's constitutional obligation arising from Article 40.3.30. It would also be inequitable to have, as a matter of course, a significant penalty for the person performing a medical procedure but none at all for the woman who is willingly undergoing such a procedure. This provision also relates to men.

What would be done with a back street operator who was a recidivist carrying out dangerous procedures on vulnerable persons? It is a maximum, not a minimum, sentence and discretion is provided for.

The effect of amendments Nos. 151 and 158 would be to delete the provisions that cover the offence under the Bill of intentionally destroying unborn human life. These provisions replace and update sections 58 and 59 of the 1861 Act and, therefore, are essential to uphold the constitutional position on the issue. I will not accept the amendments.

Amendment No. 152 would require the penalty for the offence under section 22 to be reduced to a term not exceeding five years. I cannot accept this amendment. Based on a review of the main categories of criminal offences on the Statute Book, the term of 14 years was considered appropriate by my Department and the Department of Justice and Equality. The sentence to be applied in any case is a matter for the court involved. We debated this issue at considerable length on Committee Stage. I acknowledge it is sensitive and that it is not the intention of any Member, no matter how hard are his or her beliefs, that a 14 year old should be subject to a 14 year sentence. However, in response to the question raised by Deputy Billy Kelleher, the normal criminal law applies in sentencing and it has always been more lenient on minors than adults. That will be the case. The discretion of the courts and the Director of Public Prosecutions will apply.

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