Simon Harris (Wicklow, Fine Gael) | Oireachtas source

The main conclusion of the committee's work was that change is needed to extend the grounds for lawful termination of pregnancy in the State. To effect that change, the committee recommended that Article 40.3.3° should be removed from our Constitution. The committee then went on to make recommendations on the grounds on which termination of pregnancy should be permitted in Ireland, if Article 40.3.3° were repealed.

The Thirty-sixth Amendment of the Constitution Bill proposes to delete Article 40.3.3° in its entirety. It proposes to substitute an article in the Constitution, the object and effect of which would be to articulate clearly the principle that laws may be enacted by the Oireachtas to provide for the regulation of termination of pregnancy. This clause would not oust the jurisdiction of the courts or restrict rights of access to the courts. Any legislation that may be enacted post-amendment would remain subject to review by the courts just like any other legislation. Such legislation would also be subject to the normal legislative process in the Houses of the Oireachtas, again just like any other legislation.

If the amendment is approved at the referendum of the people, it would have the effect of deleting the eighth, thirteenth and fourteenth amendments to our Constitution. This would mean that the substantive law on the termination of pregnancy, currently provided for in both the Constitution and in statute law, would henceforth be provided by way of statute law.

The Bill consists of two sections and a Schedule. Section 1 provides that Article 40 of the Constitution will be amended by the substitution for subsection 3 of section 3, the text of which is set out in Parts 1 and 2 of the Schedule in Irish and English, respectively.

Section 2 is the citation provisions and states the constitutional amendment will be called the thirty-sixth amendment of the Constitution. This section also provides for the Act to be cited as the Thirty-sixth Amendment of the Constitution Act 2018.

The Schedule consists of two parts. Part 1 sets out the wording of the proposed constitutional amendment in Irish. Part 2 sets out the wording of the proposed constitutional amendment in English. The English text is, "Provision may be made by law for the regulation of termination of pregnancy."

I am aware many people are waiting to see the legislative intentions of the Government should a referendum be held on Article 40.3.3° and should it be passed by the people. The matter was discussed earlier today and Cabinet has approved the general scheme of a Bill to regulate termination of pregnancy which I proposed. The general scheme will be published on the Department of Health’s website. I do not intend to get into a debate on the detail of such provisions, as they are not the subject of the Thirty-sixth Amendment of the Constitution Bill. Should the Bill we are currently considering be passed by the Houses of the Oireachtas, allowing a referendum to be held, and should that referendum be passed, we will have ample time to debate any legislative proposals at a later date.

However, I wish to reference some of the main provisions of the general scheme for the information of the House. Should the proposed referendum be passed, it would be the Government's intention to permit termination of pregnancy in cases where there is a risk to the life or of serious harm to the health of the pregnant woman without a distinction between risk from physical or mental health. The term "serious harm" has been used to indicate the magnitude of the risk which would warrant a termination of pregnancy. Such "serious harm" would go well beyond the expected and common complications of pregnancy, as well as other common chronic conditions that may be exacerbated by pregnancy. Two medical practitioners would have to certify that, in their reasonable opinion, there is a risk to the life or of serious harm to the health of the pregnant woman, that the foetus has not reached viability and that the termination of pregnancy is appropriate to avert the risk. One of medical practitioners would have to be an obstetrician and the other a medical practitioner appropriate to the clinical circumstances of the case. The procedure would have to be carried out by an obstetrician.

The definition of viability proposed in the scheme is the point in a pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of sustained survival outside the uterus. Doctors would assess the growth and development of the foetus, as well as any other factors likely to influence viability at that point in time. It is important that doctors with expertise in foetal medicine and neonatology would be free to make their assessments on a case-by-case basis in consultation with the woman. Developments in foetal medicine and neonatology allow very premature and often very unwell babies to survive and to experience very positive outcomes. This requirement to certify that the foetus has not reached viability is an effective ban on late-term abortions. Such a ban, contrary to what I hear, does not exist in other countries like the UK.