Alex White (Dublin South, Labour) | Oireachtas source

I am only required to address the amendments in the group. Senator Mullen's and Senator Bradford's amendments refer to the certifying personal and not the doctor carrying out the procedure. Therefore, there is no difference.

I cannot see the necessity for the amendment stating "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" given the overarching constitutional and statutory imperative inhering in all the people involved in certifying and carrying out procedures to preserve unborn life as far as practicable and with due regard to the equal right to life the mother. We are struggling with this all the time in the debate.

At an earlier stage of the debate, perhaps Second Stage, Senator Brian Ó Domhnaill, whom I hope I am not misrepresenting, stated as part of his main line of attack that there was plenty of protection for the life of the mother and precious little, if any, for the unborn. That is a fair expression of what he said. I reject that characterisation of the Bill. What the legislation seeks to do, in what is admittedly a very difficult area for any legislator, is put into statute law the provision set out in the Constitution that the mother and unborn have an equal right to life and that the protections must have regard to this. The difficulty concerns what happens when there is a conflict and when it is not possible to be immediately absolute about a particular outcome. The difficulty is when, in practice, there is a need for regard to be had to both rights. It is a question of how this must be navigated and that is why we are putting into legislation what is rightly a very onerous requirement on doctors to ensure that when they are certifying under sections 7, 8, 9 or 13 that there be a real and substantial risk to the life of the woman according to their reasonable opinion, "being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable". These words are not meaningless in the way implied.

The wording "has regard to the need to preserve unborn human life as far as practicable" is a quite legitimate and correct requirement on doctors but it is quite profound and is not to be easily dismissed. Second, the medical procedure is to be carried out by an obstetrician at an appropriate location. It must be the case that the risk can be averted only by carrying out the medical procedure. When one considers the strength of this language, one concludes it is unnecessary to include the wording, "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". What is intended to be conveyed by the amendments put forward by Senators Mullen and Bradford is suggestive of a scenario absolutely contemplated by the Bill, as drafted. There is a constitutional imperative, and a requirement to have regard to the need to preserve unborn human life is given force in statute.

Irrespective of one's view of the Bill, it is not accurate, fair or reasonable to criticise it in a way that suggests it does not have regard to the right to life of the unborn. I have some sympathy with the tone of the remarks of Senator Labhrás Ó Murchú, who said we may need to go further and that the balancing is not quite right. We could have that discussion and have had it for months actually. We have, quite rightly, arrived at this set of very various onerous requirements on the medical personnel involved. I understand the objective of the amendments but they are not required. The statutory scheme being put in place does have regard to the equal right to life of both entities.

I have covered most of the points. With regard to the point on the wording "as far as practicable" having a slightly different context in the eighth amendment than in the legislation, it is true. The kind of provision in the eighth amendment, in Article 40.3.3°, is directed towards the State and its laws. That is what it is about. Nobody would suggest that the Constitution could prescribe specifics along the lines we are talking about. It is always going to be directed towards the State and what it should do in its laws, as far as practicable, to vindicate the right to life of the unborn with due regard to the equal right to life of the mother. It is quite proper that we should draw on that language when seeking language to describe the need to preserve unborn life and to determine how we should qualify it. It is not absolute, as the Senators agree. In trying to find language, it is absolutely prudent and correct to draw on language in our Constitution rather than any found elsewhere.