Michael McNamara (Clare, Labour) | Oireachtas source

I thank the Leas-Cheann Comhairle for the opportunity to seek leave to introduce this Bill. It is important to point out that it is difficult, if not impossible, to reconcile the views expressed by members of the Government on Second Stage of the Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013, which was introduced by Deputy Clare Daly, with the arguments that were made on behalf of the Government to the European Court of Human Rights in D. v. Ireland. Not only did the Government argue in that case that it might be possible to terminate a pregnancy where there was no realistic prospect of the foetus being born alive, but it went further and argued that it might even have been possible under the Constitution to terminate pregnancies in cases of diagnoses of Trisomy 18, where the medical evidence is that the median survival age is approximately six days. I should point out that this Bill is more restrictive than Deputy Clare Daly's Bill and than what the Government argued in Strasbourg might be constitutional.

When responding to Deputy Clare Daly's Bill a month ago, the Minister for Health stated:

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.

I would not introduce this Bill if I did not believe it to be constitutional. I have set out my reasoning for this in the explanatory memorandum accompanying the Bill. The Bill is more restrictive in its definitions than Deputy Clare Daly's one and allows for the termination of a pregnancy where there is a diagnosis by two obstetricians of a fatal foetal abnormality, which is defined as a medical condition or medical conditions suffered by a foetus resulting in that foetus having no prospect of being born alive or a medical condition listed in Schedule A, which is a schedule of medical conditions that result in a foetus not having the capacity for life as a human person after birth. Anencephaly is listed.

Two other important issues that arose during the previous debate need to be addressed, including the use of Article 15.4 to gag debate in the House. That article reads: "The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof." The discussion of a Bill on Second Stage is not the enactment of legislation. We are all clear on this point. Many a Bill has been initiated in the House over which there have been constitutional discussions that resulted in amendments during the course of Committee Stage. It is important to bear this point in mind, as the claim that there might be constitutional issues surrounding Bills is an increasing phenomenon in the lifetime of this Government.

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