Rónán Mullen (Independent) | Oireachtas source

I thank the Minister for getting in touch with his chief medical officer and whoever else on the question of foetal pain. I certainly anticipate there will be further debate on this subject on Report Stage. It is noteworthy that the issue did not arise until the Seanad raised it. It also is noteworthy that despite being the subject of amendments of which the Minister and his team would have been aware, the information was not available to the Minister this morning. While I thank him for going to the trouble of finding out what he did, I do not believe it disposes fully of all the issues because thus far, the Bill is silent as to what may happen or, more to the point, what may not happen to a child who has arrived at the state of viability.

I seek clarification from the Minister on an issue that has confused me but perhaps can be cleared up. I believe the Minister himself mentioned this in the Dáil in the context of a section 9 abortion or procedure when he stated there would be no question of waiting until the child could be delivered safely because he would not have it on his conscience that a person with suicidal ideation might endanger her life. As the Minister is leaving the Chamber and will not be present to respond to it, I will postpone this question until he returns.

My amendments in this group are amendments Nos. 17, 26, 36 and 55, which basically provide a definition of reasonable opinion, "being an opinion which respects the equal right to life of the unborn, and which has regard to the duty to deliver the viable unborn alive where practicable". The Minister stated the words "as far as practicable" are taken directly from Article 40.3.3^o. That much is true but they are taken in a different context and in a different way from which they are used in Article 40.3.3^o, because what must be done, as far as practicable in this Bill, is to have "regard to the need to preserve unborn human life", whereas in Article 40.3.3^o, it is "to defend and vindicate" that life, as far as practicable. The express language of Article 40.3.3^o is absent from the current Bill, which instead defines reasonable opinion as including "regard to the need to preserve unborn life as far as practicable". There is no mention whatsoever of the equal right to life of the unborn or of respecting, vindicating or defending that right. The Bill merely requires that regard be had to the need to preserve unborn human life, a need immediately qualified through the addition of the clause "as far as practicable". Yet, the constitutional guarantee in Article 40.3.3^o that laws respect the right to life of the unborn is not qualified in any way. Furthermore, a need to "preserve... life" is a much more amorphous and much less legally established concept than a full-blown constitutional right to life. Consequently, the Bill grants a lesser level of respect to the equal right to life of the unborn than does Article 40.3.3^o, which I believe to be a significant question hanging over this Bill from the perspective of the Constitution.

There is a further equivocation in the Bill regarding the equal right to life of the unborn in that the aforementioned reasonable opinion is not a reasonable opportunity at all, because it merely requires an opinion formed in good faith. Consequently, the Bill requires a significantly lower standard of mental element than that of an objective reasonable opinion, which in turn greatly undermines the supposed safeguards offered by section 9, as well as the criminal provisions of section 22. Since the medical opinion need not take heed of relevant medical evidence in ordinary practice, the good faith test also is out of touch with the development of the tort of medical negligence from Dunne v. National Maternity Hospital onwards, as I noted previously. It should also be noted that the entirety of the medical evaluation adheres to a good faith standard, including certification of a real and substantial risk to the woman's life. Further, and perhaps crucially, whether due regard is had to the need to preserve unborn human life as far as practicable is, according to the Bill, entirely a matter of subjective good faith. I cannot discern how anyone could reconcile the Bill's provisions with the constitutional duty for laws to respect the equal right to life of the unborn, a duty that is framed in a categorically objective manner. The subjective good faith standard pervading the Bill's provisions for medical assessments reflects the subjective grounds of suicidal ideation upon which the Bill provides for abortion. Consequently, in the complete absence of empirical evidence that abortion makes women less suicidal, this Bill does not require that a medical opinion sanctioning an abortion on this very basis be based on anything more concrete than a subjective opinion.

Further, the good faith test does not incorporate a duty to deliver a viable child from the womb alive. In other words, a reasonable opinion required, as in the Bill, imposes no duty to ensure that where practicable, a viable child should be delivered alive, rather than aborted. This will not really affect the operation of sections 7 and 8, which pertain to necessary interventions in cases of physical illness and a mother in that position will want everything done for herself and for her child.

In practice, and as a matter of law, the Bill permits a section 9 medical procedure to effortlessly subordinate the need to preserve unborn human life to the statutory right to abort that child even where the preservation of unborn life is achievable as a matter of routine medical practice. It is extremely difficult to equate all this with a guarantee to respect the equal right to life of the unborn, especially since it may, in fact, incentivise a medical practitioner to opt for an abortion instead of an early inducement so as to avoid questions over civil liability on foot of the disablement of a child, as we stated earlier.

Sections 7 to 9, inclusive, and 13 continue to permit a termination of pregnancy to be carried out up to and including delivery and in a manner that ends the life of the unborn at a stage in its development where, if that termination was to be carried out otherwise, the unborn would be capable of surviving. Reasonable opinion can be anything but reasonable under this Bill provided it is formed in good faith. This Bill does not leave the normal meaning of reasonable in place. It tells us what a reasonable opinion is and it does not include the word "reasonable". The courts will have to go on whether it is in good faith and as I stated earlier, it is extremely difficult to prove mala fides.

The definition of "reasonable opinion" in the sections here, sections 7 to 9, inclusive, and 13, involves giving a purely artificial meaning to the term and provides for a subjective rather an objective test. The current definition will make the reasonableness or otherwise of the opinion completely irrelevant, and this surprising result is achieved by giving the term a definition that has nothing to do with the ordinary meaning of the word "reasonable".

This has major implications for the operation of section 7 - risk of loss of life from physical illness - section 8 but, particularly, sections 9 and 13, as it governs the second opinion that must be formed in those sections, that is, that the risk of the loss of life can only be averted by carrying out that medical procedure - that is the second opinion in the sense of the second issue to be decided. It is a classic example of the Legislature turning the meaning of ordinary words on their head and case law confirms the right of the Legislature to do just that. By juxtaposing the word "reasonable" with the word "opinion" in the term defined, the unsuspecting reader is seduced into believing that the term "reasonable opinion" must be based on reasonable grounds but nothing could be further from the truth. On a close examination of the precise wording of the definition, it becomes clear that the opinion in question, that is, that the risk of loss of the woman's life "can only be averted by carrying out the medical procedure", must only be formed in good faith - an entirely subjective test. There is no onus whatsoever on the medical practitioner, when forming his or her reasonable opinion, to base that opinion on reasonable grounds.

On Report Stage in the Dáil, the Minister, Deputy Reilly, stated:

To be clear, it will only allow a pregnancy to be terminated in circumstances where it is expected that the woman will otherwise die. It has been suggested that the legislation should include a clear provision to that effect and also an explicit reference to viability. I reassure all Deputies that, as currently drafted, the Bill prohibits the killing of a viable foetus.

As previously stated, the Bill makes reference to a medical practitioner's reasonable opinion. This places a statutory duty on each medical practitioner required to form such an opinion for the purpose of legislation to have regard to the need to preserve unborn human life as far as practicable. This imposes a clear duty on medical practitioners to make every effort to preserve the life of a foetus that may be viable. The amendments to sections 7 to 9, inclusive, and 13 would express this in the body of the Bill. Sections 7 to 9, inclusive, are structured in such a way as to provide for a balancing of the rights of the unborn and those of a pregnant woman.

Against what the Minister stated, there is nothing in the Bill to support his contention that it, specifically, in the context of section 9 which is where the controversy is, prohibits the killing of a viable foetus. There is nothing in the Bill to support that contention.

The Minister supports his viewpoint with reference to reasonable opinion but there are a number of problems. First, as currently drafted, the Bill only protects those procedures that will end the life of the unborn.

Second, reasonable opinion requires that the relevant opinion, it should be remembered, a good-faith opinion, has regard to the need to preserve unborn human life as far as practicable, and that last clause is the crucial one. A woman who seeks a section 9 certification almost certainly does so on account of the child's existence, not simply because she is physiologically pregnant. As such a medical procedure that does not involve ending the life of the unborn, whether viable or otherwise, is not a procedure that averts the real and substantial risk to the woman's life by way of suicide and, in a double sense, it is not a procedure protected and clarified by the Bill. To be an efficacious and legally protected procedure under the Bill's provisions, it necessarily must involve the death of the unborn.

Third, all this helps make clear how redundant the phrase, "have regard to the need to preserve unborn human life as far as practicable", really is. It adds nothing of substance to the Bill. One must remember it is at the certification stage that such is required; it does not affect what the practitioner does. The practitioner is protected in carrying out a procedure that ends the life of the child. There is no good reason, finally, to refuse an amendment clarifying that a viable child, under section 9, will not be aborted.