Thursday, 6 December 2018
Health (Regulation of Termination of Pregnancy) Bill 2018: Second Stage
I thank the Acting Chairman. I am delighted to join Senators in Seanad Éireann for Second Stage of the Health (Regulation of Termination of Pregnancy) Bill 2018. The Dáil concluded its consideration of all Stages last night and voted in overwhelming numbers to care for women with compassion in our country rather than exporting women with crisis pregnancies to other jurisdictions, as we have been doing for more than three decades. I look forward to the opportunity of considering and debating this landmark legislation with Senators today and next week, with the hope that we can finally act on the instruction that people gave us more than six months ago to do our job as legislators and to legislate to legally provide these services in our country. We must do that in January 2019. I must apologise as I will have to leave the Second Stage debate early to attend a Council of Ministers meeting in Brussels but will be represented by my Ministers of State. I look forward to being here for the duration of Committee and Report Stages next week, when we will have the chance to tease through many of the issues.
As Senators will be aware, the introduction of this Bill aims to give effect to the result of the referendum on Article 40.3.3 held in May. It is fair to say the result of the referendum showed us that the people want Ireland to be a country which treats women, our sisters, friends, daughters, mothers, wives and colleagues, with consideration and empathy at a time when they most need that care. The main purpose of this Bill is to set out the law governing access to termination of pregnancy in this country. The legislation permits termination to be carried out in cases where there is a risk to the life, or of serious harm to the health of the pregnant woman; where there is a condition present which is likely to lead to the death of the foetus either before or within 28 days of birth; and without restriction up to 12 weeks of pregnancy.
I need to level with the Seanad as to how I will be approaching this debate. We took a very conscious decision - a decision that was welcomed by many - in advance of the referendum to publish draft legislation, so that when people were voting "Yes" or "No", they knew what they were voting for. They knew that if they gave me as a Minister and these Houses of the Oireachtas a mandate to legislate, we would endeavour to legislate along the lines of the draft legislation. Now that the referendum is passed different people have different views on the legislation and that is right and proper. The job of legislators is to scrutinise. The approach I will be taking to the Bill is to do what I promised the people I would do if they passed the referendum and repealed the eighth amendment.
I will take the Members through the Bill section by section to clarify its provisions. While the Bill is now arranged slightly differently, its key provisions are largely the same as those published in the draft general scheme approved by Government and published in March ahead of the referendum, and also the updated scheme approved by Government and published in July. The Bill is now divided into three Parts. The first Part of the Bill has sections on definitions, regulations, repeals, transitional provisions and a review of the operation of the Bill. Section 1 of the Bill makes the standard provisions setting out the Short Title of the Bill and arrangements for its commencement. Section 2 deals with definitions. It defines the meaning of some of the terms used for the purposes of the Bill, including foetus, medical practitioner, medical procedure, and termination of pregnancy. I clarified in the Dáil - this is an important clarification that I was very pleased to give - that while the definition of "woman" set out in the Bill “means a female person of any age”, it is to be understood in line with section 18(b) of the Interpretation Act 2005, which states that “a word importing the feminine gender shall be read as also importing the masculine gender”. I want there to be absolutely no doubt on the record of this House, as there is no doubt on the record of the other House, that termination of pregnancy services may be accessed by anyone who requires them regardless of gender. I had the opportunity of meeting LGBT Ireland, BeLonG To and Transgender Equality Network Ireland, TENI, to explain to them my approach to this. It was my simple layman's view of the world that we could just stick in "and pregnant person" or the likes. The clear legal advice I got from the Attorney General was that was not without risk. What I have done, as Members will see, is that I have made a change to the explanatory memorandum, which I have shared with those advocacy groups, with the health committee and with Members of the other House, to make it absolutely clear that this legislation is inclusive from a transgender perspective. That was certainly recognised and acknowledged in the other House and I want to acknowledge it here today also.
Section 3 deals with regulations, allowing the Minister of the day to make regulations to bring the legislation into operation and other such procedural matters. Any such regulations will have to be laid before the Houses of the Oireachtas for approval. Section 4 allows that approved expenses associated with the administration of the Bill may be paid for from public funds. Section 5 repeals sections 16 and 17(1) of the Censorship of Publications Act 1929; sections 7(b) and 9(1)(b) of the Censorship of Publications Act 1946; and section 10 of the Health (Family Planning) Act 1979. It also repeals the Regulation of Information (Services Outside the State for Termination of Pregnancy) Act 1995; and the Protection of Life During Pregnancy Act 2013. That was an Act introduced at a time when we had the eighth amendment and now that the eighth amendment no longer exists in our Constitution, we can through the passage of this Bill repeal that Act.
Section 6 sets out transitional provisions to put arrangements in place to cover situations where a review committee has been convened under the Act of 2013, and is ongoing at the time the present Bill comes into effect. It also obliges the HSE to prepare and submit a final report on reviews to the Minister, not later than six months after the commencement date of the present legislation. Section 7 makes provision for a review of the operation of the legislation not later than three years after its commencement. I inserted this clause in the Bill during its passage through the Dáil, and it is a very important one. What we do not want to do, or what I certainly do not want to do, is to pass a law, put it on the Statute Book and say that is our job done and we are finished talking about these issues. This is an area that requires ongoing monitoring and evaluation and as medical evidence and public policy change, we need to be able to ensure that the legislation we have enacted is operating effectively. Within three years, there will be a full external review of the Act from the perspective of how it is operating. I am sure there will be lots of issues that we will discuss on Committee Stage and while I will not be in a position to accept some of them, they are certainly issues that will be looked at in the context of a review. That is a perspective I will be taking through this debate as well.
Part 2 of the Bill covers the grounds on which terminations of pregnancy may be lawfully provided under the legislation and includes arrangements for conducting reviews, and provisions on certification and notification of procedures under the legislation. Section 8 defines the meanings of some of the terms used in this Part of the Bill, including health, appropriate medical practitioner, medical specialty, relevant specialty, obstetrician, review committee and viability. Sections 9 to 12, inclusive, set out the grounds on which termination of pregnancy may lawfully be provided. Section 9 states that a termination of pregnancy may be carried out where two medical practitioners, having examined the pregnant woman, are of the reasonable opinion formed in good faith that 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 it is appropriate to carry out the termination of pregnancy in order to avert the risk concerned. One of the two medical practitioners must be an obstetrician and the other must be an appropriate medical practitioner, and both must certify their opinions in order for the termination to be carried out. The procedure must then be carried out by the certifying obstetrician, or in cases where the second certifying doctor is also an obstetrician, either one may carry out the procedure.
Section 10 deals with emergency situations. It provides that a termination of pregnancy may be carried out by a medical practitioner who, having examined the pregnant woman, is of the reasonable opinion formed in good faith, that there is an immediate risk to the life or of serious harm to the health of the pregnant woman, and it is immediately necessary to carry out the termination of pregnancy in order to avert that risk - in other words, it is an emergency situation. The certification for the procedure may be issued by the medical practitioner either before the procedure is carried out, or where this is not possible, not later than three days afterwards.
Section 11 puts provisions in place for carrying out a termination of pregnancy in which there is a condition present affecting the foetus that is likely to lead to the death of the foetus before or within 28 days of birth, or what we now commonly know as fatal foetal abnormalities. The process is consistent with the other sections, requiring the involvement of two medical practitioners, one of whom must be an obstetrician and the other a medical practitioner of a relevant specialty.
Section 12 provides that a termination of pregnancy may be carried out by a medical practitioner who, having examined the pregnant woman, is of the reasonable opinion, formed in good faith, that the pregnancy concerned has not exceeded 12 weeks of pregnancy. A three day period must elapse between certification and the procedure being carried out. I amended this section in the Dáil after engagement with the medical community to allow a second doctor to become involved following the three day period, should the first be unavailable. I believed that because of the three day period, there was very much a practical issue here that doctors had highlighted to me, which we have endeavoured to rectify as well.
Sections 13 to 18, inclusive, set out the arrangements for reviews of medical opinions, where this is sought by a pregnant woman or person acting on her behalf. This will be familiar to the Members from other legislation. Section 17 refers to the review committee.
Section 18 provides that the HSE must submit a report to the Minister for Health, not later than 30 June each year, on the operation of review committees. Information that will be provided in the report includes; the total number of applications received; the number of reviews carried out; in the case of reviews carried out, the reason the review was sought; and the outcomes of such reviews. Section 19 deals with certification, and states that it must be made in a prescribed form and manner, and must contain the prescribed information, which may include the clinical grounds for carrying out the procedure.
Section 20 provides for a notification system in relation to all terminations of pregnancy carried out under the terms of the Bill. This is required to monitor the impact, effect and operation of the Bill.