Rónán Mullen (Independent) | Oireachtas source

As the Minister and colleagues will recall, this amendment has to do with the provision of abortion under section 12 in early pregnancy. It provides for additional text which would ensure that a termination being sought because of the sex or race of the foetus concerned or because of any condition or disability affecting the foetus concerned would not be certified where the medical practitioner in question is of the reasonable opinion, formed in good faith, that such is the reason for the termination.

It goes without saying, as with all the amendments that I have tabled and that Senators Ó Domhnaill and Coghlan have seconded, that we are trying to make a bad situation better.The purpose of the amendment is not to nullify completely the provision of abortion at that 12 weeks stage. I will not repeat what I said yesterday when I recounted the international context in which abortions are sought on gender grounds in particular. The amendment is fairly self-explanatory but one thing is clear. It would have the effect of delivering on a core promise made by the Government in advance of the referendum that abortion, on the grounds of disability, would be specifically excluded by this legislation. Without this amendment, that is not the case, and that puts question marks over the Government's credibility and honesty.

The entire tenor of this debate has been changed by the advent of what is referred to as non-invasive pregnancy testing. Tests such as the Harmony test can tell the sex of the baby but also screen for genetic conditions such as Down's syndrome, Edwards syndrome and Patau syndrome. Major focus was given to this issue during the referendum campaign. In my Second Stage contribution, for which I accept the Minister was unavoidably absent from the House and which was not responded to by either the Minister of State, Deputy Catherine Byrne, or the Minister of State, Deputy Jim Daly, I stated that the Minister said he had specifically excluded disability as grounds for abortion in the legislation. His former party colleague, Deputy Fitzpatrick, mentioned recently that the Fine Gael head office had produced a graphic for Twitter during the campaign which stated that termination on grounds of disability is prohibited. The Minister used the words "specifically excluded" and Fine Gael said "has prohibited". Will the Minister to point out to me where that is in the legislation? Legal experts, and there are a few in the House, would tell him that for legislation specifically to exclude or prohibit something, there must be explicit language in the Bill which excludes or prohibits. Expressio unius est exclusio alteriusis the Latin phrase. It is long established. The expression of one thing is the exclusion of the other. For something to be banned, the legislation needs to state specifically that it is banned, but no such language exists in the Bill that bans abortion on the grounds of disability. If it exists, will the Minister please point it out, as I have asked? I will gladly withdraw the amendment if he can do so, but if no such language exists, why can the Government not support this amendment since it explicitly implements the pledge made by the Minister and by his party during the referendum?

Likewise, why not include a provision outlawing abortion on the grounds of gender? I gave the international context as to why that is a relevant issue, that it is quite close to home in terms of our nearest neighbour and so on. The Minister has trumpeted this legislation as a great victory for the equality of women, but what kind of victory is a law which would allow women to be selectively aborted for the sole reason that they are women?

Under equality legislation, which I will not go through as I did that yesterday, it is illegal to discriminate on any of nine grounds, but there is a clear possibility of discrimination on the grounds of disability. Any suggestion that abortion on these grounds would not happen here is a naive idea. It is important to say that because there has been a certain reliance on language that seeks to get into the mind of the proponents of these amendments to say that this is about their lack of trust and that people are not like that. Such charges are unworthy of a Minister. They are unworthy in a carefully functioning democracy which is about the scrutinising of legislation to avoid unintended consequences. We do not legislate for a society that is composed of saints because there are no saints in society. We legislate for something that may not happen but which could happen. Good legislation is legislation which prevents all foreseeable unwanted consequences and bad legislation is legislation that leaves open the possibility of unforeseeable, unwanted consequences. These amendments are not a judgment on anybody and I will challenge again any suggestion that that is the case. This is about reality. It is about a promise made by Government. The honour of the Government and its credibility depend on its ability to show that it has kept its promise, which is that abortion on the grounds of disability would be specifically excluded.

There was an examination in respect of sex selective abortions by the Nuffield Council on Bioethics, a UK Government advisory body, which is roughly the equivalent of the National Advisory Committee on Bioethics established by Senator James Reilly when he was Minister for Health. It warned earlier this year that advances in technology around gender screening meant that the UK could become a haven for sex selective abortions. I quoted yesterday MPs such as Naz Shah.

We do not, nor should we assume, that we are morally superior to our UK neighbours. We are human beings the same as everybody else. At the Joint Committee on Health, Dr. Clíona Murphy from the Institute of Obstetrics and Gynaecology, IOG, admitted in my presence, in general terms, an expectation that abortion trends in Ireland might roughly mirror those of our nearest neighbour, particularly Scotland. The cat was somehow let out of the bag a couple of months ago when there was a reference to there being 11,000 abortions in Scotland, which has a population similar to ours. That was the first time I heard, and I certainly did not hear it before the referendum, an acceptance that there could be an increase in abortions as a result of this law. That was an unsayable from the point of view of the Yes campaign before the referendum but we are being allowed to contemplate that reality now. Dr. Murphy referred to it as evidence of an unmet need. It seems that all those abortions that did not take place in the past, the women who did not suffer abortion regret and the lives saved are not good news. They are just evidence of an unmet need up to now.

We should not pass a law which allows women to be discriminated against before they are ever born to the extent that they may not even be allowed to be born because they are women. That would be reprehensible. This amendment would remedy that. The sad reality is that the rights of unborn women are to be sacrificed in the name of the rights of born women, along with the right to life of unborn children generally, medical ethics and rights to conscientious objection.

On the subject of abortion on the grounds of disability within the 12 week limit, the reassurance given that this could not happen under this legislation was predicated on earlier and now defunct arguments that disability could not be diagnosed before 12 weeks. When the debate adjourned last night, I was coming to the conclusion that occurred during the campaign in the contributions of Professor Fergal Malone, Dr. Rhona O'Mahony and Dr. Peter Boylan around the question of whether disability could be diagnosed within the 12 week period. The fact is that screening is now offered in Ireland that detects abnormalities before the 12 week cut-off, making the non-existent ban very mute indeed. Any arguments about it not being necessary because disability could not be detected prior to 12 weeks are rendered mute.

In the Rotunda Private, where Professor Malone works, the foetal DNA test is offered at nine weeks’ gestation and, to use his words on "Liveline", results come back typically in a week. These are screening tests with an accuracy of 99.9%. A further diagnostic test is advised in those situations, but one can imagine that people who would desire an abortion in such circumstances would not take a second test.

We have to legislate on the basis of a decision we must take about whether it is desirable that a decision to have an abortion could be countenanced and supported even where there is knowledge that the reason is for disability. Everything the Minister and the Government said in the run-up to the referendum was to the effect that that would not be allowed.Since the legislation clearly allows it, where is the integrity in claiming that this has been specifically excluded when the medical and diagnostic reality, combined with the openness and unamended form of section 12 abortions to date, provides for the exact opposite of what the Minister and the Government promised?