Rónán Mullen (Independent) | Oireachtas source

I move amendment No. 3:

In page 8, lines 17 and 18, to delete “without extraordinary life-sustaining measures” and substitute “if given all practicable treatment and assistance for the purpose of ensuring her or his survival”.

By way of a prefacing remark, which will hopefully help to save a lot of time later, this is a very difficult and tragic situation for Members who are opposed to the Bill. I do not intend to speak for longer than is necessary on the amendments that I will be proposing. If I repeat myself, it will be accidental. I want to say as much as I need to say to get what is important on the record but I will certainly not engage in any kind of parliamentary tactic. This issue is too serious and too tragic for that. I hope that we will give each other some space and avoid any sledging or parliamentary obstructive tactics as we go through this.

The Minister referred to the reality of women travelling. Part of the context for this is that an analysis was never done on how many more might travel in the future as a result of this legislation and, therefore, it is not just about a reality that will somehow be transposed into law. We had a person from the Institute of Obstetricians and Gynaecologists talking about the Scottish figure of 11,000 abortions a year as being somehow suggestive of an unmet need given that Scotland has a similar population to Ireland. It did not happen before the referendum but for the first time it is emerging that there is an expectation that we might have an increased abortion reality. I fear that perhaps it will be very different from the current reality that the Minister describes some time in the future.

The Minister also briefly mentioned mental health and its importance. I agree with him. I have been falsely, wrongly and crazily accused of denying the existence of mental health or somehow denying the existence of mental health problems. The only point I have ever made on this issue, which has never been contradicted, is that there is no evidence to show that abortion helps where mental health is the health ground on which abortion is being sought. That is why leading academic experts have questioned the current law in Britain and that is why I have been, and will be, critical of the failure to distinguish in these areas and had Senator Ruane not withdrawn her amendment, that is the point I would have made. Medicine should always be evidence based. Abortion under some headings in this legislation is bring presented as medicine. It is not evidence based, however.

The final prefatory point I want to make is that repeated reference was made in the Dáil to the idea that this is how the people voted and that we have to go with that, as if to say that even proposing amendments to this legislation would somehow be obstructive of the democratic process.I do not know if anyone disagrees with me about how often that line has been used. Liam Weeks, the UCC academic, writing in the newspaper yesterday stated:

Some need reminding that the Irish electorate did not necessarily vote to legalise abortion. They voted to remove its constitutional prohibition, which is not the same thing. They also voted to give parliament the power to introduce abortion, which again, strictly speaking, does not necessarily imply an endorsement of the availability of abortion.

He went on to say the electorate handed over the right to make a decision on this policy to our legislators. If we all accept that, then we will save a good deal of time later by not having recourse to the mantra that somehow this is what the people voted for - they did not. They did not vote on the heads of the legislation, as the Referendum Commission pointed out before the referendum. We all need to accept that and proceed from that point.

Amendment No. 3 relates to the definition of viability in section 8. The current definition is inconsistent with the pre-referendum heads of Bill. It would have the effect of setting viability later than normal.

Does the term "extraordinary life-saving measures" refer to an incubator? We could have a situation where a baby who would be regarded as viable could be subjected to abortion if an incubator was seen as an extraordinary life-saving measure. I will outline where I believe we ought to be on this point. Let us remember that we are talking about the definition of viability as it relates to abortion under section 9 and section 10 grounds. Under these provisions abortion is to be permitted beyond the first 12 weeks. We are talking about a very developed unborn child.

It is important to emphasise the legitimacy and appropriateness of the consultative dimension when it comes to questions of viability and later-term terminations. Certainly, I have no wish to do anything to obstruct good normal medical judgment making. The amendment is about codifying the protections for reasonable treatment rather than denigrating doctors or women who might legitimately forego aspects of what would normally be considered to be extraordinary life-saving measures.

It seems to me that what applies in normal pregnancy situations should apply in these situations with regard to the duty of care to the child at a certain stage in pregnancy. The Medico-Legal Journal of Irelandhas stated that the appropriateness of more extensive measures, such as surgery and specialised neo-natal intensive care, is to be determined in light of the child's condition and the foreseeable benefits and burdens of the treatment options for the total good of the child.

We are talking about amending from a negative to a positive formula. Under the current definition, viability means the point at a pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of survival outside the uterus without extraordinary life-sustaining measures. There is some ambiguity here. I believe it is more helpful if we define viability as a situation where the foetus will survive given all practicable treatment and assistance for the purposes of ensuring her or his survival. In other words, it corresponds to putting the child in the same situation as that of any premature baby requiring care. That is the proposal. It avoids the risk of pitching viability too late, thereby bringing about an increased number of later-term abortions.