Michael McDowell (Independent) | Oireachtas source

Speaking to the section, it has two effects. First, it has the effect of inserting the wording in the Schedule and, second, it has the effect of removing the existing wording from Article 40.3.3^oof the Constitution. In the ordinary course of events in this House the time available for each speaker on a Second Stage debate is naturally limited to eight limits, which is to ration out time fairly among us all, and I have no problem with that.

I would like to briefly develop a few points I made yesterday evening regarding Article 40.3.3^o, which we are taking out of the Constitution, if we pass this legislation subject to the decision of the people. First, I made the point that Article 40.3.3^o in its original form was inserted into the fundamental rights section of the Constitution in the Article headed "Personal Rights". In those circumstances we are dealing with what I believe was a misguided attempt to say that a fertilised ovum either prior to implantation or post implantation amounted to a person. In my view, and I want to put this on the record of this House, that is not so. Nobody in this House believes it is so. If we believed that a fertilised ovum in an in vitrofertilisation, IVF, laboratory, where they are trying to assist a mother and father who are having difficulty in having children, was a person, there would be all sorts of different laws and things to be done. If one ovum was selected and if we believed that was a person in that tank, and the others were disposed of or put into nitrous oxide to be frozen, that is one thing, but none of us actually accords the status of a person to a fertilised zygote. Therefore, constitutionally, we are in a grey area. That was the problem with Article 40.3.3^o. It decided to over-simplify the issue and to elevate the unborn, which it did not define, to the position of a person. In doing so, it said that the right to life of a zygote, once implanted, as later decided by a court, was equal to the right to life of the foetus's mother.I do not accept that proposition and I believe it was a falsehood and oversimplification put into the Constitution without working out precisely what it meant. That was done in 1983, doubtless in good faith, but principally because the suspicion was that our Judiciary would do a Roe v. Wade and introduce abortion as a constitutional right and that the Judiciary was not to be trusted.

In 1992 there was the X case. The girl in that case was the victim of a rape and was told by the Supreme Court that she could not leave Ireland for the purpose of having an abortion unless her life was under threat. She could not go to England and her parents could not arrange for her to go to England and an injunction was available to prevent her going to England to have an abortion. A young rape victim was told that the meaning of Article 40.3.3°, as it then stood, was that she could not have an abortion. I am particularly addressing the Senators who are conservative on this issue and I fully respect their rights to be conservative and do not think it is in any way undemocratic for them to vote against this, if that is their point of view. Article 40.3.3° meant that rape victims, once implantation had taken place, were obliged by the Constitution to carry that conception to full delivery unless they could prove, as was done in the X case, that there was an imminent threat of suicide if they were not allowed to have an abortion. The idea of travel injunctions was enshrined by the Supreme Court in the X decision. Let us not forget that point.

In 1992, when all of that became apparent, the people were horrified by the result. The then Taoiseach, Albert Reynolds, put three propositions to them, which was curious, and it was objected to at the time, but in retrospect it was probably just as well. The first was should suicide be a ground for termination of a pregnancy in Ireland. The Supreme Court had said it could happen here. The second was should anybody be the subject of a travel injunction, again by reference to pregnancy or the intention to procure an abortion abroad. The third proposition was should anybody in Ireland be denied information because there were student publications and the Society for the Protection of Unborn Children, SPUC, at the time. The question was whether it should be a crime to tell anybody in Ireland whether abortion was available outside Ireland. It asked should it be a crime in this country to tell somebody, as in the case of Ms X, to go abroad and obtain the services of a place like the Marie Stopes clinic in England. The people said no to the first proposition, that if somebody committed suicide, it could be held that we allowed it to happen by our vote in the referendum because abortion was not available here. They voted to allow people leave Ireland to have an abortion. I ask Senator Mullen and others, respectfully, through the Chair, if we really believed that an implanted foetus had the same rights as a born child, would we have amended our Constitution to allow parents to take that child to a clinic in England to have it killed.