Fiach MacConghail (Independent) | Oireachtas source

I move amendment No. 6:

In page 7, to delete lines 7 to 9 and substitute the following:“ “unborn”, means a foetus which has reached that stage of development at which, if born, it would be capable of life outside the womb;”.

As if my life is not complicated enough, I find the grouping of these amendments complicated.

This issue has to do with the discussion we had yesterday on fatal foetal abnormalities and the definition of "unborn". What I am seeking in this amendment is confirmation and reassurance regarding the definition of "unborn" as stated in this Bill. I am not a legal person, so perhaps Senator Bacik can answer this question for me, but will the definition of the "unborn" that is now, for the first time ever, being written into a Bill end up as a precedent for further or additional legislation or interpretation, or is the definition confined to this Bill? It is for this reason that Senator O'Donnell and I seek to include a definition of "unborn" which deals with the challenge of whether a foetus is compatible with life. This relates to our debate yesterday on fatal foetal abnormalities.

The National Women's Council of Ireland and the Irish Family Planning Association have the view that the new definition gives equal protection to a non-viable foetus and a woman and limits the Government's ability to introduce measures in the future to allow terminations in cases of fatal foetal abnormalities where the foetus is incompatible with life. They refer to the D case. I know the Minister has received advice from the Attorney General. However, I find it worrying that the definition, which is included in legislation for the first time in this Bill, limits the possibility of future change or might rule out future legislation, particularly legislation dealing with fatal foetal abnormalities.

The definition of "unborn" in the Bill relates to human life following implantation until such time as "complete emergence of the life from the body of the woman". The explanatory note states that this definition has been inserted to protect the life of a baby who is in the process of being delivered. As was identified by the expert group, a baby being delivered is not protected under the offence of either murder or abortion. While applicable within the narrow and defined parameters of the Bill, if this definition is applied in a broader sense, it amends the position the Irish Government adopted in the D v. Ireland case before the European Court of Human Rights. I will not go into detail on this, as my esteemed colleague Senator O'Donnell argued this case yesterday. I know the Attorney General's advice is a closely guarded secret, even more so than the secret of Fatima. However, on this issue it would be helpful if that advice was put on the record. Senator O'Donnell and I do not intend to press this amendment, but it is important for future legislation and law-making that we get clarification on the definition in regard to the advice from the Attorney General, the senior law adviser to the Government.

The Council for Civil Liberties points to the case of Roche v. Roche, in which Mrs. Justice Denham, who is now the Chief Justice, gave insights into the definition of "unborn" as in Article 40.3.3°. She stated that the concept of the unborn envisages the state of being born, the potential to be born and the capacity to be born, which occurs only after the embryo has been implanted in the uterus of the mother. The Irish courts can be expected to draw on Supreme Court jurisprudence in Roche v. Roche in any future determination of the definition of the "unborn". The interpretation section of this Bill does not state that the definitions contained in it apply only to this Bill. I heard the Minister say yesterday that was the case. However, I would like to hear the legal response on whether, with regard to any future cases, we have cornered ourselves as law-makers.

I know there is a political will to deal with this issue in the future and Senators Hayden and Bacik were very eloquent and supportive of the need for legislation dealing with fatal foetal abnormality, but they felt it could not be delivered in this Bill. Will the definition in this Bill stymie any attempts to introduce legislation to deal with fatal foetal abnormality under a separate Bill? We need clarification on that. There may also be circumstances in which a case falling outside of the scope of this Bill requires further interpretation of the meaning of "unborn". For example, the dictum of Mrs. Justice Denham in the Roche case would suggest that a non-viable foetus, being incapable of birth, does not come within the constitutional concept of "unborn". Therefore, it might be unwise to seek to apply the definition in this Bill to such a case, as to do so might not be in keeping with the constitutional interpretation. In addition, we might not want to fall foul of Article 3 of the European Convention on Human Rights, particularly with regard to protecting women, their treatment during pregnancy, and the issue of fatal foetal abnormality. I would like legal clarification of the definition of "unborn" and ask the Government to publish the Attorney General's advice on the definition and the reason it was felt it should be included in the Bill.