Katherine Zappone (Independent) | Oireachtas source

I welcome the Minister of State, Deputy Alex White, to the House.

I want to begin my remarks by commending the leadership of the Minister for Health, Deputy Reilly, which is rooted in his determination to protect life during pregnancy and, as he stated in the Chamber yesterday, "to clarify for women what it is they are legally entitled to".

Taken at face value, it is quite astonishing that the determination to achieve these two policy and legal objectives creates such controversy and conflict but they do and they have.

The Minister required and received critical support from his Cabinet colleagues. In this regard, I commend the Taoiseach and Tánaiste, the Minister of State, Deputy White, the health committee chairman, Deputy Jerry Buttimer, and all of the members of the health committee who robustly represented all sides of the debate. All of them were faithful to their duties as law makers. I especially thank Senator van Turnhout for keeping all of the members of her group so closely informed of what was going on in the context of the committee. At the time Senator Bacik was a student and was threatened with prison I was teaching ethics in Trinity College. I thank her for keeping those of us who taught ethics out of our ivory towers.

Dr. Rhona Mahony said in the Chamber when she gave evidence to law makers that women need to be listened to and need to be believed. She also asked what is a substantial risk to life and answered the interpretation of substantial risk is not the same for all people and the mother's opinion is key.

The Supreme Court's decision in the Attorney General v.X case requires three things to be established before an abortion can be administered. First, there must be a risk to the life of a pregnant woman. Second, as a matter of probability that risk to life can only be averted by termination of the pregnancy. Third, the foetus must not be viable or on the cusp of viability. In my view the determination of a matter of probability must take account of the pregnant woman's view. What kind of society would not do that? Women are and ought to be viewed as primary agents in decisions about sexuality and reproduction. Recently I tweeted that women are moral agents and several people tweeted in response the question "what does that mean?" I responded by stating that women have the capacity to make ethical decisions or something of that notion in 140 characters.

Furthermore, our laws must always create room for women to exercise their ethical capacity. Women are embodied moral agents and not simply disinterested and detached observers. So women's knowing, through their bodies, is a prime source for ethical decision-making. It is not the only source but a prime source.

No culture has yet been found in which conscience is not recognised as a fact. It has always been viewed as integral to ethics, a functional guide for action and a capacity for ethical evaluation. It is not enough to invoke conscience simply because one feels strongly about something or spontaneously judges that a certain action is the morally correct one. Sincerity alone is not sufficient. The conscience that most fully carries moral authority and to which one can appeal is the conscience that is continually self-critical, aware of the dangers of ignorance, bias, prejudice, selfishness, ignorance, arrogance and self-sufficiency. Pregnant women have such a capacity and can and do exercise this capacity in the process of human reproduction.

The intention of the Protection of Life During Pregnancy Bill 2013 is outlined in its memorandum and reads:

The main purpose of the Protection of Life during Pregnancy Bill 2013 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 andC v Ireland case. Its purpose is to confer procedural rights on a woman who believes she has a life-threatening condition, so that she can have certainty as to whether she requires this treatment or not.

The Bill achieves these intentions.

Yesterday, the Leader, Senator Cummins, with a deeply reflective and articulate response detailed the impact of the legal vacuum surrounding our termination laws. He argued that the Bill will put in place a legal framework that can effectively close those gaps. We do have a legal vacuum. I have listened to or read the evidence presented to the Oireachtas and it is my view that a risk to life emanating from the possibility of suicide is a risk to life. Also, the pregnant woman's interpretation of how this risk to life can be averted must be a prime consideration in subsequent decision-making to terminate, or not. The Bill before us allows for this. I was also persuaded by Senator van Turnhout's rationale that sections 7 and 9 should have been merged. I am aware of the medical and legal rationale for the merger.

There are many things that the Bill does not do, as outlined by Deputies and Senators. I shall outline one of the prime things that it does not do. It does not adequately challenge a flawed human rights analysis operative in both past and current abortion debates. The analysis presents the abortion decision as a competitive antagonism between an abstract holder of rights, the foetus or the unborn, and the pregnant woman. This view says that we have two equal and, in every respect, same rights holders that are in a competitive contest for survival. Is the unborn a person constitutionally? I do not think so. I recognise that taking on this issue is outside of the confines of the Bill. I believe that these are the debates that lie ahead for us and we stand on firmer ground to have qualitative debates because of this Bill.

The Bill does not legislate for termination in cases of fatal foetal abnormalities. The Government has argued that it is only obliged to deal with the issues that relate to the European Convention, the implementing of the A, B and C judgment and the X case and that it is not obligated to go any further. Obligated by whom or what? Why is this an issue for another day? It may be for another day in light of political strategy and tactics. I do not agree that it is for another day in light of ethical considerations and international human rights obligations.

What are the ethical considerations? If the pregnant woman is an embodied moral agent and her life circumstances, social and economic conditions, as well as physical and mental health, are key sources for an ethical decision - and that means a good decision - why will our law not allow for this now? My understanding is that the State has argued that fatal foetal abnormalities could be legislated for within the confines of the existing constitutional restriction. As Deputy Clare Daly pointed out in the other House, if our constitutional provision and protection equates the life of women with that of the unborn then if there is no life to protect the constitutional protection does not exist.

What are the international human rights obligations? As pointed out by the Irish Council for Civil Liberties, recent case law from the European Court of Human Rights on the issue of reproductive rights is relevant to us here. A number of cases relating to Poland indicate that the states of the Council of Europe are obliged to ensure that women seeking lawful terminations are not exposed to inhuman and degrading treatment contrary to Article 3 of the Convention on Human Rights. The view of the Irish Council for Civil Liberties is that the current treatment of women with pregnancies involving a defined set of fatal foetal abnormalities would be covered by this provision. I cannot make rational ethical sense of omitting procedural rights for women in these instances. Should the law allow for this not all pregnant women will choose to terminate in this circumstance but some would and should be allowed to do so. Therefore, I shall support an amendment tabled by my colleagues, Senators Marie-Louise O'Donnell and Fiach Mac Conghail, to include the provision in the Bill.

In conclusion, I have another prime concern about the Bill. Others have spoken of section 22(1) which states: "It shall be an offence to intentionally destroy unborn human life." In effect, those women who engage in termination in the Republic of Ireland are criminalised. Why is a termination when the mother's life is at risk not equated with an intentional destruction of unborn human life? Why is a termination for other reasons only defined as "intentional destruction"? There have been many cases, many of which have happened beyond these shores, when Irish women chose to terminate their pregnancy because of impoverished life circumstances or the violent context in which she became pregnant. To describe her action as intentionally destroying unborn human life is not necessarily true and certainly not in all cases. Why is a termination described as "intentional" if the life of the mother is not at stake but "legal" if it is at stake?

I understand this may be related to an article of the Constitution, but its effect is that we will continue to criminalise those women who cannot afford or choose to travel for a termination, even if they have exercised their moral agency to terminate and followed their conscience. There is great irony in politicians arguing that they must follow their conscience in legislating, with which I agree, but that they want a law which prohibits a pregnant woman from following hers.