Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

I would like to acknowledge the work undertaken by Deputy Clare Daly in the preparation and publication of this amendment to the Protection of Life During Pregnancy Act, which is before the House this morning.

The Bill provides for lawful termination of pregnancy following a diagnosis of fatal foetal abnormality which is defined in this Bill as "a medical condition suffered by the foetus such that it is incompatible with life outside the womb". The provisions for certification following receipt of such a diagnosis broadly mirror those of section 7 of the Protection of Life During Pregnancy Act 2013. The two medical specialists required to certify under this amendment would be an obstetrician and a perinatologist.

It was just before Christmas when we had our most recent debate on the issue of abortion, again on foot of a proposal tabled by Deputy Daly. During that debate I gave my own views on this particular issue. I do not wish to repeat them in detail but, to summarise, at that time I indicated that I consider myself to be pro-life, as I accept that the unborn is a human life with rights and I do not support abortion on request or on demand. I also stated and sincerely believe that this is an issue where there are few certainties and where families and doctors often find themselves having to making extremely difficult ethical and clinical decisions. Due to my experience as a doctor in the recent past, and as Minister for Health, I have come to the conclusion that the Eighth Amendment to the Constitution is too restrictive, as it has no regard for the long-term health of the mother, or for the viability of the foetus or unborn child. It also forces mothers and their partners to bring to term a child that has no chance of survival outside the womb for long.

This is exactly the type of clinical scenario that Deputy Clare Daly's Bill aims to address and, therefore, I recognise her intentions.

However, as was the case last December, I cannot support this legislative proposal because the Bill is unconstitutional. A referendum would be required to amend the Constitution to ensure legislation, such as outlined by Deputy Daly, could be introduced. The Dáil cannot pass legislation it knows to be unconstitutional. The view of the Attorney General is that this legislation is unconstitutional. Moreover, the legislation requires a doctor should do what is impossible, namely to certify that a child would definitely not be born alive. In most cases, the child can be born alive, even if he or she only survives for a short time. This includes conditions such as anencephaly, trisomy 13 and trisomy 18. I agree we need to consider misdiagnosis. Our medical services are much more advanced than they used to be and there have been enormous strides in obstetrics and foetal medicine. Misdiagnosis still does happen, it is not a myth.

Article 40.3.3° reads:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

In Attorney General v. X in 1992, also known as the X case, the Supreme Court considered the meaning of the eighth amendment in the circumstances that arose. A majority of the members of the court held that if it were established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful.

The Protection of Life During Pregnancy Act was signed into law by the President on 30 July 2013 and was commenced on 1 January 2014. The main purpose of the Act is to restate the general prohibition on abortion in Ireland while regulating access to lawful termination of pregnancy in accordance with the X case and the judgment of the European Court of Human Rights in the A, B and C v. Ireland case. The Act provides for existing rights within the constitutional provisions and the Supreme Court judgment in the X case. It does not confer any new substantive rights to a termination of pregnancy. The Act upholds the right to life of the unborn and the right to life of a pregnant woman whose life is threatened by her pregnancy, as required by Article 40.3.3°. Accordingly, a referendum would be required to amend the Constitution before Deputy Clare Daly's legislative proposal could be introduced. This is because the proposed amendment goes beyond what is provided in the current Act and what is constitutional.

At this juncture, I am sure Deputies who support this proposal will question why I am not advocating the need for a referendum, if I truly believe that the eighth amendment is too restrictive. As I said in December, the current Government has no electoral mandate to hold a referendum on abortion and there is no consensus on what form any amendment should take. Should it delete the eighth amendment? Should it amend it further to introduce new safeguards for the unborn? If so, what form should the follow-up legislation take? Indeed, there is one commitment on abortion in the programme for Government. This commitment was to examine the judgment in the A, B and C v. Ireland case and to make recommendations on how this matter should be properly addressed. This undertaking has now been fulfilled through the enactment of the Protection of Life During Pregnancy Act 2013.

It should not be forgotten this is legislation that had been overdue for more than 20 years. As I stated last December, what I believe is required now is a considered and careful public debate to find a consensus. However, I do believe greater compassion is required to find this consensus and to inform our discussions. The situations that this amendment tries to address can only be described as tragic. I wish to extend my sympathy to any family that has to experience it.

Before I conclude, I will remind the House about the supports available for women experiencing a crisis pregnancy. The Health Service Executive through the crisis pregnancy programme, funds the provision of crisis pregnancy counselling services. In 2013, just over €3 million was provided directly to 15 State-funded crisis pregnancy counselling services through the programme. These services operate out of more than 50 locations nationwide. Approximately 4,000 women attend such services annually, a number of which attend for more than one appointment. The woman's partner and-or family members also attend these services for support. The crisis pregnancy services provide post-abortion counselling and several of them support access to free post-abortion medical check-ups. The HSE has a campaign to increase awareness among women that post-abortion services are available in Ireland. The abortion aftercare campaign, which consists of targeted online and print advertisements, encourages women who have had an abortion to attend for post-abortion medical check-ups and promotes the availability of free post-abortion counselling.

The programme has met with a group representing women who have received a diagnosis of fatal foetal abnormality on relevant crisis pregnancy counselling and post-abortion counselling options available and ways to improve the standard of service nationwide. Following on from this engagement, the crisis pregnancy programme is in discussion with maternity services on supporting the implementation of the draft standards for bereavement care following pregnancy and perinatal loss. These standards have been developed to assist and direct all health care professionals in their provision of bereavement care to parents, including a diagnosis of fatal foetal anomaly. Advice will be provided on the availability of counselling services for women and their partners at diagnosis. The crisis pregnancy programme will work with maternity services, as well as crisis pregnancy counselling services, on the development of a referral pathway between maternity services and crisis pregnancy and post-abortion counselling services to ensure no one affected slips between the cracks. I hope these developments will provide some much needed help and support to those who need it in times of crisis.

I oppose this proposed legislation because, although it is well intended, it is unconstitutional. Accordingly, I do not support this Bill at this time.

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