Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I acknowledge the apology made by the Minister. It will be important to the individual women, their families and society at large. It is appreciated from that point of view. I recognise from tonight's debate the obvious change that is coming down the track. This is evident from the number of Members present at this hour on a Thursday evening and the cross-party points that have been made.

I appreciate that the sympathy expressed is totally genuine across the House. I do not believe there is any question about that but unfortunately the response put forward by the Government is not urgent enough.

We must be honest with ourselves and citizens. The House would not even be discussing this Bill if Deputy Mick Wallace and I had not been lucky to have it selected in a lottery. That is the truth of the matter. The previous Bill we introduced on this issue was also selected by lottery and since then, nothing has been done to address these issues. As legislators, we are the only people who can address them and what the Government is proposing is not good enough.

There is a consensus across Europe and the developed world, one that has been reflected repeatedly in Irish opinion polls and is an established fact in international human rights law, that terminations of pregnancies in cases of fatal foetal abnormalities must be provided for. I will read part of the Horner judgment in Northern Ireland:

The doctors know when a foetus has an FFA. This is primarily a medical diagnosis not a legal judgment. In those circumstances the doctor can be reasonably certain that the foetus will be unable to live independently outside the womb... There can be no doubt that the mother’s inability to access an abortion in those circumstances constitutes a gross interference with her personal autonomy... But in the case of an FFA, there is no life to protect. When the foetus leaves the womb, it cannot survive independently. It is doomed. There is nothing to weigh in the balance. There is no human life to protect.

Despite this, the violation of the rights of the woman continues and the Government states there is nothing we can do. There was no moral argument put forward tonight against the Bill. What does it say about our society that Deputies Kate O'Connell and Richard Boyd Barrett have to come here and relate their intimate and tragic personal stories on the record and our response is that we cannot do anything.

The Minister states the House cannot change the position. If that is true, we have a serious problem in this country because the job we are paid to do is to legislate. The Government is asking us not to do our job based on the advice of the Attorney General and in the absence of the publication of that advice. It has done so against a clear backdrop in which different advice was given by previous Attorneys General. With one week left before a vote is taken on the Bill, it not acceptable, transparent or helpful that the Government has not published the advice of the Attorney General. If it is serious about new politics, it should publish the advice. The Minister can waive his rights on this issue and publish the advice, as one of his predecessors, Mr. Barry Desmond, did when he read advice received from the Attorney General into the record. There is nothing wrong with doing that.

The Minister of State, Deputy Regina Doherty, made the point that she found the Attorney General's advice so compelling that she went along with it. Lucky for her, but if the advice is so compelling, the Government should let us see it and perhaps we will be convinced by it. Maybe the legal experts who disputed the judgment previously will also be so convinced. What does the Government have to lose? Is what we are trying to do not that important? Are we not as entitled as the Government is to examine the facts? I believe we are just as entitled to do so because we only heard tidbits of legal opinion in the Minister's speech, and in saying that I do not intend to be derogatory towards him.

The Minister referred to the definition of the "unborn" and generalities in respect of the phrase we inserted in the legislation on being incompatible with life outside the womb. He drew an inference that this meant that if the foetus was capable of being born alive, even for one second, it would have protection under the Constitution. That is not clear and it is a matter which only the courts can decide. What we know is that the article in the Constitution refers to balancing rights and equal rights. Court judgments on the issue have found that in the case of a fatal foetal abnormality, the balance shifts to the woman and the question of equality, if one likes, is of lesser importance in that scenario because there is no life to protect. Again, the phrase "as far as is practicable" has been applied. This means that just because something is possible, that does not make it practicable. This also needs to be factored in when we are dealing with these types of cases. It was precisely because of this wording that a previous Attorney General gave sworn testimony to the European Court of Human Rights ten years ago in which he stated that the Irish courts could provide a legal remedy and lawful termination in Ireland of cases of fatal foetal abnormality.

Those are the facts and, as has been pointed out, anything else is just opinion. Only the courts can decide. For this reason, it is not legally incumbent on Deputies to oppose the Bill. On the contrary, it is morally incumbent on us to push it further because the sensibilities of the Attorney General are of little concern to me. One of the Minister's party colleagues referred on radio this morning to a Bill she will introduce to reduce the time limit for divorce. If such a Bill, however welcome, were introduced in the House, it would be clearly unconstitutional because the Constitution states that a divorce must be preceded by a period of separation of four years. As such, if the Deputy in question introduced a Bill providing for a reduction in the period of separation, it would clearly be unconstitutional. The fact is, however, that the Bill before the House is not clearly unconstitutional. In fairness, the Attorney General was widely criticised by the Fennelly commission, among others.

I do not accept the point made by Deputies opposite that the legislation would muddy the waters or stand in the way of the repeal of the eighth amendment. I could maybe buy that argument if the Government offered us, in exchange for withdrawing the Bill, a referendum on the Constitution. It it were to make such an offer tonight, we would certainly consider it but the offer in town tonight is that the status quowill continue.

We must return to the circumstances faced by families who are in this position now and women who do not know that they will be in this position next week. Those are the absolute facts. These are tragic consequences of nature and the diagnosis is not the fault of anybody. It is unbearable for people to have to leave the country and it will be our fault if we do not do something to address the issue.

The citizens assembly is unacceptable. Even if the Government were to speed up the process, it would take at least one year during which at least 200 other women would have to make the journey abroad. I appreciate that the Minister will meet families involved in the Terminations for Medical Reasons group and is examining issues such as the treatment abroad scheme, bereavement counselling and all the basic health care services that these families should be receiving. To be honest, however, these issues are on the agenda because these parents fought and demanded these services in order that other people do not have to endure what they have endured.

The Minister's final point was that only the Irish people can decide on this matter. If he believes that, I can tell him that Irish people would be very happy to deal with it. Will he give them a choice and allow them to do so? Deputies stated they wanted to deal with this issue. Sometimes one has to take a stand, go for it and give a demonstration of intent and solidarity. We have to say to all of those who have been violated by the State that we are on their side, that it is not acceptable that they must leave their families and loved ones and the medical profession that cared for them so well in this country but cannot refer them and must send them sneaking off to a different jurisdiction, and that we will not put barriers in their way. We are legislators and we should grab this issue by the throat and present this Bill. What would happen if did so? Tomorrow would be much like today, except for those who are at the coalface because we will have made a gesture by saying that we will stand by them.

We heard about other courts adjudicating on this matter. That will happen in any case, but at least the House will have taken a stand on this issue. The Minister has not put forward any valid reason that the Bill should not go through. We owe it to ourselves and the people who have been and will be afflicted by this issue to take this legislation further and herald a new dawn in Ireland for human rights and women's rights.

I remind the Government, and in doing so appeal to its backbench Deputies, that three or four weeks ago, it allowed a Bill it described as unconstitutional to pass Second Stage. My God, it can at least do the same on a women's rights issue.

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