Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I thank Deputies Clare Daly and Mick Wallace. I can assure them I am not looking for anywhere to hide on this issue.

There can hardly be a more difficult situation for a woman who is pregnant to face than to be told by her doctor that her unborn child is not fully healthy and well, is not going to grow to achieve all that every mother and father wishes for their child and, worst of all, is not going to survive. All her aspirations and dreams for her child are taken away, replaced with grief and distress at the very time when she should be facing a future of joy, hope and happiness. What unites this House is the empathy and sympathy we all feel for the couples and families who face these terrible situations. This House has heard heart-rending personal stories from Members who have had direct experiences of fatal foetal abnormalities. I too have met families who have been through the trauma of knowing their baby will not survive and who have had the courage and fortitude to share their stories in the hope of saving other people some of the pain they themselves endured. Only the heartless could fail to be moved.

Life naturally brings with it sorrows as well as joy. There are certain tragedies, however, that make us all feel the same sense of wrongness. The harsh realities of such a situation were made clear for all to see in the recent report from the United Nations Human Rights Committee when it published its view on the complaint against the State brought by Ms Amanda Mellet whose unborn child had Edwards syndrome. As I made clear at the time, I read with a heavy heart the details in the report of Ms Mellet’s experience. Putting aside for a moment the wider constitutional issue involved, the absence of compassion in her treatment by our health service was deeply distressing. I am very sorry that this is how she was treated. Ireland’s history shows that it has been a cold and uncaring place for women and children. I felt the echoes of that when I read that UN view. I will return to aspects of Ms Mellet’s case again later in my speech, but I want now to address the Bill before us.

Deputies Clare Daly and MIck Wallace and others who support the Bill are minded by a deep personal desire to help every bit as much as anyone else in the House. I not only respect their views, I share them. We all want to help. I am in that 80% to which Deputy Clare Daly referred. We want in particular to do something meaningful to help. I know the Deputies too would want this Bill not only to be legal and constitutional but also to have a meaningful impact for women. Anything less would be to give false hope to and pretend we have done something for women who carry these babies and the doctors who care for them.

I am not opposed to the purpose behind the Bill. I will set out in detail the grounds on which it is currently not possible to support it. In doing so, I am fully reflecting the legal advice available to me on the constitutional issues pertaining to this Bill, as per Deputies Clare Daly’s and Mick Wallace’s request, as well as the medical advice I have received from the Chief Medical Officer for the information of the House.

Deputies Clare Daly’s and Mick Wallace’s Bill provides for termination of pregnancy following a diagnosis of fatal foetal abnormality. This is defined in the 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.

This country, and this House, is bound by the Constitution, one which can be frustrating at times. A referendum was held in 1983, resulting in the adoption of a provision which became Article 40.3.3° of the Constitution, commonly known as the eighth amendment. Article 40.3.3° reads as follows:

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

This Bill falls outside the parameters of Article 40.3.3° as interpreted by the Supreme Court in Attorney General v. X in 1992, also known as the X case, which 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 commenced on 1 January 2014. I believe this Act addressed generations of neglect in this House in terms of facing up a Supreme Court reality. Its main purpose is to regulate 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. That Bill was considered and debated extensively in Oireachtas committees, in this House, in the Upper House and probably in homes across the country. I think it was well understood and acknowledged in the context of that debate that this legislation was as far as the Legislature could go in the absence of a referendum. I am sure the House will also be aware that the second annual report on the Act has recently been laid before the House.

Returning to the Bill before us, the Supreme Court reviewed the meaning of the term "unborn” in Article 40.3.3° of the Constitution in the Roche v. Roche case in 2010. On that occasion, Mrs. Justice Denham, now the Chief Justice, stated with regard to the wording of the eighth amendment:

...both language versions refer to birth or being born. Thus the fact of being born or birth is a factor in both versions. The beginning of "life" is not the protected term, it is the unborn, the life capable of being born, which is protected. The capacity to be born, or birth, defines the right protected.

Therefore, in the case of a foetus with a condition that is incompatible with life, but which is capable of being born alive and surviving even for a very short period, such a foetus is protected by Article 40.3.3° of the Constitution.

The Bill put forward by Deputies Clare Daly and Mick Wallace does not define what is meant by "incompatible with life outside the womb". From examining the Bill before us, two possible interpretations appear possible. The first interpretation is that the "unborn" has a condition which is incompatible with life outside the womb but which is capable of being born alive. It is clear that an unborn child who has a capacity to be born alive for a period, no matter how short, is protected by Article 40.3.3°.

The second interpretation is that the unborn has a condition which is incompatible with life outside the womb and has no capacity or capability of being born alive. This is where I move from the legal advice to the medical advice. I am informed by the Chief Medical Officer that the circumstances in which such a situation would arise do not exist in medical practice. It can never be said that a foetus with a fatal foetal abnormality will not be born to live for a short time, even if that is only to be minutes, to draw a breath and to have a detectable heartbeat. If a foetus has the capacity to be born, it has the protection of our Constitution. Any Bill that provides for termination in these circumstances, as this Bill does, would not be constitutional and would also not be medically practicable. Therefore, to introduce the well-intentioned provisions put forward by Deputies Daly and Wallace would require a referendum to amend the Constitution.

It is for this reason I believe the Government’s commitment to develop a consensus approach within a citizens' assembly is the way to move forward. The Government has decided, in view of the programme for partnership Government commitment, to establish a citizens' assembly as quickly as possible and to make recommendations to the Dáil on further constitutional changes, including on the eighth amendment of the Constitution as its first topic. Let me be clear that the citizens' assembly can report topic by topic; therefore, there is no need for the assembly to wait until the end to report on each topic. The first topic it will consider will be the eighth amendment. The issue of fatal foetal abnormalities can and, in my view, should be examined as part of this process and the assembly will also have the support of an expert group to provide it with the necessary legal and medical opinion.

I also have said very clearly that I expect the views of the UN Human Rights Committee will be considered in that context. The Government is very conscious that the lack of access in this country to termination of pregnancy in cases of fatal foetal abnormality is one that has caused significant distress to many couples. I have heard from the Terminations for Medical Reasons group on this issue. I know some of the members are here with us this evening and I look forward to meeting with them in the corning days.

I would like to take a moment to return to the Ms Mellet case. I have been informed by the HSE of the supports available to women who find themselves in very distressing situations. These include HSE funding for the provision of crisis pregnancy and post-abortion counselling and, in many cases, medical examination through the sexual health and crisis pregnancy programme. A woman’s partner and-or family members can also attend these services for support. Approximately 3,000 women attend State-funded crisis pregnancy counselling services for crisis pregnancy counselling each year. In 2015 more than €3.3 million was provided directly to 16 State-funded crisis pregnancy counselling services through this programme. These services operate out of more than 40 locations nationwide. However, when I read the United Nations' views in regard to Ms Mellet, not only was I struck in regard to the issue of terminations, which, whether we like or do not like the situation, is currently a constitutional reality. What was I particularly struck and upset by, as I believe all our citizens were, was the way Ms Mellet was treated before and after by this country's health service. That was what I apologised for. It is simply not good enough. The detail of the UN report shows that services that should have worked for Ms Mellet clearly did not. There is no doubt this added further to a very distressing situation. I am not satisfied to presume that Ms Mellet's is an isolated experience. That is why I have asked the HSE to report to me, before my meeting with the Terminations for Medical Reasons group, on the clinical and counselling services in place to support women and their families who have to deal with a prenatal diagnosis of a fatal foetal abnormality. In line with requests I have received, I am also considering within the law what other services and responses can be put in place to help women in these terrible circumstances.

I speak here today as a member of a generation who could not vote in 1983 - in fact, I was not even born in 1983. My generation has never had our voice heard on this issue. Ireland has changed. Like many people, my own views on this subject have changed, the more I have considered this complex issue and the more I have listened to the real stories of people. When we listen to the stories of women who received the dreadful diagnosis of fatal foetal abnormality in their babies, there is an inescapable truth. Our present law immeasurably adds to the pain of those who make the difficult decision to terminate the pregnancy. I really wish and hope Deputies Clare Daly and Mick Wallace accept my bona fides on this, it was the case that we could change that situation here today on the floor of the Dáil. However, being truthful, this House cannot change it alone - only the Irish people can. It is my absolute personal hope that the citizens' assembly will recommend that those of us who were never asked the question, and indeed every other citizen in this country, will be given the opportunity to answer it after careful, considerate, respectful and informed debate. It is for these reasons that I find myself in a position to oppose this Bill because, although absolutely well-intentioned, it is unconstitutional, and I cannot support the Bill at this time. However, I hope mechanisms are put in place to bring about the constitutional change that is clearly needed.

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