Rónán Mullen (Independent) | Oireachtas source

I move amendment No. 6:

In page 8, line 34, and in page 9, line 1, to delete all words from and including “(being” in line 34 down to and including “practicable)” in line 1 of page 9 and substitute the following:“(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)”.

I will speak briefly on all these amendments. We are discussing the test for reasonable opinion with regard to sections 7,8 and 9 of the Bill, and more particularly in the context of section 9, which is where the mischief exists. The test for reasonable opinion is very subjective. The opinion has to be noted of those who are certifying the abortion, not those who would be carrying it out. The reasonable opinion as defined does not require any court test of reasonability at all; it merely has to be an opinion formed in good faith. As the Minister of State, with his legal background, will well know, it is very difficult to prove bad faith. The other requirement is that the certifying person must have regard to the need to preserve unborn human life as far as practicable. That appears to invoke the test of the Eighth Amendment, but that contains an undertaking to defend and vindicate the right to life as far as practicable. The need to respect the equal right to life of the unborn is not qualified in any way in the Eighth Amendment. Therefore, these amendments would strengthen the requirement for the certifying medical personnel to form an opinion which respects the equal right to life of the unborn. That is the constitutional mandate. They would have to have regard, where practicable, to the duty to deliver the viable unborn alive. That is the effect of amendment No. 6 on section 7, amendment No. 11 on section 8 and amendment No. 17 on section 9.

We have been given many sorts of reassurance that where a child is at the cusp of viability or is viable, not only will his or her life be preserved if born alive, but he or she will be protected through the procedure so that he or she can be born alive. This reassurance has been given informally and is certainly not in the legislation. I would like the Minister of State to restate that assurance. However, even if he does, it is quite clear that it is not required in the legislation. It is the certifying physician who is supposed to have regard to the duty to preserve the life of the child where practicable but there is absolutely nothing in the legislation about the lawfulness of the procedures themselves that imposes the requirement to preserve the child's life.