Rónán Mullen (Independent) | Oireachtas source

Amendment No. 32 is in the name of Senator Healy Eames so I will speak to amendments Nos. 13, 24 and 31.

Amendment No. 13 seeks to delete the words "is ended" and substitute "may be lost" from section 7 so it would refer to the lawfulness of procedures in the course of which, or as a result of which, an unborn human life may be lost. Amendment No. 24 proposes a similar change in the context of the emergency section 8 procedures, and amendment No. 31 refers to it in the context of what I might describe as the infamous section 9 procedures.

The word "ended" connotes a deliberate act whereby "lost" suggests the death of the child is a side-effect of the intended aim of the medical procedure. All along we have been reassured that what is being legalised are procedures which are not directed to the destruction of the unborn but to the saving of the life of the mother. I suggest the word "lost" provides greater legal reassurance to those practitioners not involved in the deliberate destruction of the unborn, namely practitioners operating according to sections 7 and 8.

In response to critics of the Protection of Life during Pregnancy Bill 2013 who have pointed out the Bill permits the directed intentional destruction of an unborn child even after the point of viability, it has been repeatedly claimed that no viable unborn child will be lawfully aborted pursuant to sections 7, 8 or 9, but instead any such child shall be delivered early with every effort made thereafter to sustain its life after delivery. It is relevant to critically evaluate this response in light of the actual wording of the Bill. Most importantly, the express definition of the medical procedure which sections 7, 8 and 9 provide shall be lawful leaves no doubt the Bill only makes lawful procedures which are fatal for the unborn. The wording used at the start of each of these sections is utterly unambiguous and speaks about where life is ended. Section 7(1) states: "It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended...". Thus it is only a medical procedure during, or as a result of, which unborn life is ended that is made lawful by the Bill.

It is necessary the plain legal consequences of this definition are understood. The Bill does not make lawful any form of termination of pregnancy which does not end an unborn human life. It does not confer any lawfulness on a procedure which disables or injures severely; it only confirms lawfulness on those procedures which actually end in the death of the unborn. It follows the Bill neither requires nor renders lawful the premature delivery of a potentially viable unborn child as an alternative to the medical procedure defined and made lawful by the Bill, a procedure in the course of which, or as result of which, unborn life is ended. There is no duty on the doctor to preserve life at that point or no protection from civil or criminal liability for the doctor who preserves life.

If the Government truly believed its own claim that when an unborn child is viable terminations of pregnancy under the Bill should not take the form of a procedure which ends the life of the unborn, which is the only procedure defined and made lawful by the Bill, but should take some other form such as premature delivery, one would expect the Government to be open to an amendment adding an express provision for confirmation that the Bill does not permit the lawful ending of the life of an unborn child which is reasonably deem to be viable or potentially viable. It is very difficult to understand why the Government would oppose such an amendment if it is truly intended the Bill should operate in this way.

One would also expect to find provision in the Bill addressing the civil liability of a doctor who delivers a viable unborn child prematurely thereby causing injury to the child. As noted above, such procedure is neither mentioned nor made lawful by the Bill because it is not a procedure which ends an unborn human life and therefore falls outside the definition of the medical procedure made lawful by sections 7, 8 and 9.

It is no answer to the above criticisms to include an express reference in the Bill to a duty to make all efforts to preserve the life of a child after delivery. We are not speaking about after delivery; we are speaking about what happens before and during delivery. We are speaking about the procedure and not the post-emergent situation. There is no requirement that any such delivery must occur in the first place because there is no duty imposed on a doctor by the Bill. I can hardly believe I am reading these words but they are true. There is no requirement that any such delivery must occur in the first place, because no duty is imposed on a doctor by the Bill, either implicitly or expressly, not to end viable unborn human life. On the contrary, an obstetrician who chooses to terminate a pregnancy by a premature delivery of the unborn rather than by a procedure which ends the life of the unborn will not enjoy the protection of the Bill. Quite perversely, the obstetrician might be better off legally speaking from the point of view of his or her self-interest if the child died during or as a result of the premature delivery than if the child survived. If the child's life is ended in the course of or as a result of the premature delivery, the delivery would fall under the definition of medical procedure in the Bill and would therefore be lawful, but if the child survives and suffers injury a result of the premature delivery the lawfulness of the procedure, at least in terms of civil liability, is left wholly undetermined by the Bill.

On Report Stage in the Dáil the Minister stated the purpose of the legislation is not to regulate procedures which do not constitute abortion or to dictate the practice of obstetrics, and to this end, using the word "is" as opposed to "may" and the phrase "may be ended" as opposed to "is ended" would lead to the inclusion of other procedures, for example amniocentesis, which are not intended to be included, and that due to the unpredictability and complexity of these rare medical cases it was not desirable to provide legislation for a specific referral path. Such an answer causes concern. Only a contorted reading of the proposed amendment could view it as including procedures such as amniocentesis, since subsequent subsections clearly establish the only category of medical procedures contemplated by the Bill are those which respond to a real and substantial risk of loss of maternal life as a necessary means of averting such a risk and which take account of the need to preserve unborn human life as far as practicable. Thus only maternal life-saving medical procedures which threaten the survival of the unborn are contemplated.

Further, as the Bill stands, with the inclusion of "is" instead of "may be", it is difficult to see the purpose of the phrase "has regard to the need to preserve unborn human life as far as practicable". This phrase only comes in to protect people who end up ending the life. This is the wording of the Bill. Such a phrase is surely redundant where legal clarity is being offered to only those procedures which inevitably end the life of the unborn. It is not sufficient to suggest, as some have done, there is no need for these amendments since subsequent subsections enshrine the idea of a need to preserve unborn human life as far as practicable. The argument these people make seems to be that the incorporation of the "duty" ensures that the fact that the Bill contemplates only procedures ending the life of the unborn does not entail lesser protection for procedures which do not end unborn life.

Yet, as previously stated, that duty to preserve unborn human life as far as practicable is rendered redundant by the exclusion from the Bill's protection of procedures which do not end the life of the unborn. We are left with a Bill that clarifies and protects only those procedures resulting in the death of the unborn. Any other type of procedure is not protected and is not clarified, as I have said. If my amendment is not accepted, it seems clear that the Bill will have the unintended side effect - I hope it is unintended and that it will be changed - of incentivising for medical practitioners foetal destruction over foetus-saving procedures. That is the most logical deduction from the legal fact that the Bill only protects and clarifies the former category of the medical procedure. I look forward to hearing the Minister's response.