Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I welcome the report of the committee and thank its members for their work on this matter. It was a difficult task, to which they devoted a great deal of time. Having heard from delegates, they produced a report with very decisive recommendations. All of the individuals on the committee deserve to be commended for the time they gave and effort they put into to it.

I speak as a Fianna Fáil Deputy but not on behalf of Fianna Fáil. It is important that every Member of the Dáil lets the public know how he or she intends to vote on the referendum Bill which will be brought before the House and in any referendum, if the Bill is passed. Notwithstanding the fact that each of us has a constitutional right to the secrecy of the ballot in a referendum, I will let the public know how I intend to vote on the referendum Bill and in the referendum. While Members are not required to do so on the second matter, they should do so on the referendum Bill.

I have been a Member of the House for only 23 months and of all the issues that have come before the House, this is the one that has affected me most because it means so much to many. No matter on what side of the debate people are, I have noticed that this issue means a lot to them. That is why it is so important. We need to recognise that we are different from the rest of the country because we are legislators. We make the law in two ways - first, by passing legislation in this House and the Seanad and, second, as a result of giving the people the opportunity to deal with constitutional issues. President de Valera inserted into the Constitution the provision that it could be amended through the vote of the people.

In any debate such as this, even though it is emotional, it is important to understand the law on abortion. The law is very clear: abortion is legal in one very limited circumstance - when there is a substantial risk to the life of the mother. That derives from Article 40.3.3o of the Constitution and is given statutory effect by the Protection of Life During Pregnancy Act 2013. However, the law is too restrictive, does a disservice to Irish women and should be changed.

There are three reasons for my belief the law is too restrictive. First, every year in Ireland a number of unfortunate women who are pregnant are told by their physician that the child they are carrying cannot live outside the womb. People sometimes complain about the terminology used, but such pregnancies occur every year and women are given that diagnosis. It is an appalling situation for any woman or couple to find themselves in and it is cruel of the State to force a woman in those circumstances to leave the country if she wants to have a termination. Fortunately, I have never been in such a position and shudder to think of how awful it must be for any young woman who is told that she is pregnant and looking forward to the birth of her child, but it is perfectly rational for her to determine that she does not want to proceed with the pregnancy, as she cannot cope with it. It is cruel if the State forces her to go through with it and tells her that she has to travel to another country to have a termination. The State should be seen by the public as playing the role of a loving and responsible parent. In a such situation la loving and responsible parent would facilitate a termination.

The second reason for my view that the law is too restrictive is that women in Ireland are the victims of sexual abuse and rape. Each year women are raped and, unfortunately, become pregnant through rape and incest. If I was a woman and that happened to me, I believe I should have the right to a termination in this country. There is an unanswerable argument that the child in the womb is blameless and faultless. Notwithstanding this, if any woman close to me was raped and became pregnant as a result and said she wanted to terminate the pregnancy, I would respect that decision and facilitate and help her in doing so. It is hypocritical to force her to go outside the country to have it.

The third reason for my view is that under the Constitution there is equality of treatment between the mother and the unborn child. That relationship needs to be balanced more in favour of the mother. If there is a significant risk to the health as opposed to the life of the mother and the physician recommends a termination to protect her health, she should be entitled to have one.

The law should be changed because it is too restrictive. There were other views expressed on this issue which I fully respect. If I want to see the law changed, I have to recognise that it cannot be changed if the eighth amendment remains in the Constitution. The circumstances I have outlined cannot be dealt with if the eighth amendment remains in it. It needs to be amended to ensure the circumstances I have outlined can be dealt with in legislation. The constitutional protection provided by Article 40.3.3o prevents any statutory law from being enacted beyond that which is in place. The Constitution contains the monolith of the right to life of the unborn. The only thing that can stand in its way is the right to life of the mother. That is an unusual situation where there are conflicting constitutional rights and I believe grey areas. I know that some people do not view it as black and white. Another constitutional right is freedom of expression, but it is not absolute; it is limited by the requirements of public order and the constitutional right of people to their good name. Because there are conflicting rights this House can pass legislation to reflect those rights and at the same time set out the limitations, but that cannot be done in this instance if the eighth amendment remains in the Constitution. All we can do is state a termination can take place if there is a real and substantial risk to the life of the mother.

That is too restrictive and therefore the law should be changed. For that reason, I will vote in favour of the referendum Bill which will come before this House and which will seek a Constitutional amendment to delete or amend the eighth amendment. Subsequently, when there is a referendum, I will vote in favour of the proposal to amend or delete the provision.

It is important that we now consider the issue that has arisen recently as to whether there should be a repeal or an amendment of the eighth amendment. I do not envy the task of the Attorney General, who is a very fine lawyer, in advising the Government on this matter. We must be clear on one thing, however. There is no avenue we can take that is going to eradicate legal risk, or that we can be sure will not result in a legal challenge. We must also recognise that the status quohas given rise to successful legal challenges and, if it remains, will continue to do so into the future. No matter what happens, if the provision is repealed or amended the likelihood is that there will be a legal challenge. The challenge will be as to whether the personal rights contained in Article 40 of the Constitution provide for rights for the unborn. It will seek to suggest that the unenumerated rights in the Constitution and perhaps the right of bodily integrity include rights that can be conferred on the unborn. We cannot get away from the fact that there may be legal challenge. That is not a reason for us not proceed down the route of deleting the eighth amendment.

The other proposal that has been put forward is that the provision should be amended. I would be slightly concerned about a proposal to amend the Constitution to provide that this one issue should be the exclusive preserve of the Oireachtas. We need to remember that the courts are the fundamental protectors of the rights of citizens. It is one of the great achievements of the Constitution that the courts are there to play a supervisory role in respect of legislation that is introduced by this House. For that reason, I would be loath to have a situation develop in which the courts would have no supervisory role in respect of a fundamental right that is referred to in the Constitution. If we put into the Constitution a provision that the law in respect of this issue shall be the exclusive preserve of the Oireachtas, we need to recognise that the Oireachtas can change. A hundred years from now, we could have an Oireachtas that might be much more extreme on this issue than is the case at present. Just because it gives the exclusive preserve to the Oireachtas does not mean that the rights of the individual are going to be protected.

When cases come before the courts, they do so in a complicated way. We are not just going to have a case dealing exclusively with the question of whether there are unenumerated rights in the Constitution for the unborn, or whether the personal rights still subsist in respect of the unborn. It is going to be much more complicated than that. There will be cases invoking the rights of the family under the Constitution and other constitutional provisions. The idea that a court would be precluded from dealing with one issue in a complicated scenario is not something I would support.

My recommendation is that there should be a referendum Bill brought before the House seeking to delete the eighth amendment. The courts do not live in a separate, parallel universe. They have to interpret the fact that the amendment was inserted in 1983. If the referendum is passed, the courts will recognise that the people have made a decision to take it out. People may ask what will happen next, if it is the case that the people agree to delete Article 40.3.3° from the Constitution. The law will remain as set out in the Statute Book and the Protection of Life During Pregnancy Act. The Oireachtas will have an ability to pass laws to deal with this scenario. We need to be straight with the people, however. No-one can give an assurance as to the type of legislation that would come afterwards. The Government does not have a majority in the Dáil and it is hard to assess the likely outcome in respect of such legislation.

We cannot give an definitive answer as to what is going to happen. I have reflected on and considered my view carefully as I am very conscious of my responsibility and the role I have as a legislator and a person who can facilitate a referendum. It is my strong belief that the eighth amendment has not been of service to the women of Ireland. As my leader said earlier today, the eighth amendment has not prevented abortion in Ireland. I respect the views of other people. However, I will be supporting a referendum to delete the eighth amendment and will be voting in favour of its removal. It will then fall to the Oireachtas, which will have to decide what law will come into place after that.

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