Rónán Mullen (Independent) | Oireachtas source

There is a real irony here. If I heard it once, I must have heard it a hundred times from Government spokespersons. I cannot remember if the Minister of State, Deputy White, said it, but I would be surprised if he did not. Part of the background to all this was a criticism by the late Mr. Justice Niall McCarthy that we had failed to legislate. The criticism was made in the X case. Now, the Government is failing to legislate again. It is putting in place legislation which changes the pitch. It establishes the tone and also the rules while omitting the question of what a doctor ought to do in circumstances where a child is at viability and may be saved. The certifying psychiatrist and obstetrician, who may or may not be the person required to carry out the procedure, are only required to have regard to the need to preserve the life of the child as far as practicable. They have to have regard to that while making a decision on certification in subjective good faith. The person who carries out the procedure is governed by the law which says it shall be lawful to carry out a medical procedure in the course of which, or as a result of which, an unborn human life is ended. The silence on giving comfort to a doctor that he or she might lawfully carry out a procedure where the life of the child might not be ended is just as bad as any failure to legislate.

In the context of legislation, we have a lacuna. In one way, the lacuna serves not to protect the doctor who might want to act. The failure to impose a duty to protect the child who is at viability gives comfort to the type of doctor, who may exist, who may have an ideology or to a careless doctor of the type who end up in front of the fitness to practice committee of the Medical Council. The Minister said earlier that he would not proceed on the basis that doctors would not act well. The whole point of law is to ensure that one does not depend on the good intentions and best practice of 100% of any population, be it the citizenry, medics or legal professionals. We must, therefore, ask the Minister to proceed on the basis that there might be people out there who do not have the best interests of unborn children at heart. They exist and might be medically qualified and within the zone of applicability of the legislation. I submit that there is a very serious failure to legislate on the lacuna I have mentioned.