Simon Harris (Wicklow, Fine Gael) | Oireachtas source

It certainly is. The Bill provides that it shall be an offence for a person by any means whatsoever to intentionally end the life of a foetus, otherwise than in accordance with the provisions of the Bill. Officials from my Department and the Office of the Attorney General have considered a number of different ways of phrasing this offence. The wording put forward in the Bill is the clearest formulation possible. A termination of pregnancy is a medical procedure that is defined in the Bill is something that can only be lawfully carried out by a medical practitioner.A broader formulation is necessary, therefore, to sanction all persons other than a woman in respect of her own pregnancy, crucially, who intentionally end the life of a foetus otherwise than in accordance with the provisions of the Bill. It was decided that the wording used in section 23 was the clearest possible to convey the scope of the offences therein.

On amendment No. 54 which seeks to make it an offence to kill or injure a pregnant woman where this also results in the termination of her pregnancy, I point out that it is already an offence to intentionally or recklessly assault any person whether that results in injury or not and it is an offence to intentionally or recklessly kill any person. It seems that this amendment seeks to move the focus from protecting the pregnant woman to protecting the pregnancy, whereas the Bill as currently drafted focuses on protecting both the pregnant woman and the foetus. Furthermore, the offence proposed in subsection (1) of amendment No. 54 appears to include the actions of a pregnant woman who injures herself such as to cause the termination of her pregnancy.

Senators have also proposed amendments which refer to consent or lack of consent by the pregnant woman. The focus of the Senators' proposed amendment No. 54 to make it an offence for a person to intentionally or recklessly administer any drug, substance, instrument, apparatus or other thing to a pregnant woman without her consent such as to cause the termination of her pregnancy also relates to the issue of consent. Since behaviour which the law does not prohibit is permitted, the effect of subsection (2) of amendment No. 54 would be to make it lawful for any person to carry out a termination on a woman at any stage in her pregnancy for any reason if she consents thereto. I do not believe that is anybody's intention because that would mean that no grounds would be necessary for an abortion and all of our discussion of the Bill would be somewhat redundant because termination would be permitted in all scenarios once the woman consented. That is not the intention of the legislation and, in fairness, I do not think it is the intention of any Senator either. The amendment would effectively render sections 9 to 12, inclusive, of the Bill redundant because a doctor who carried out a termination on a consenting woman outside the parameters of those sections would not be committing any offence. Furthermore, it would render it lawful for unqualified non-medical persons to carry out a medical or surgical termination on a consenting woman at any stage of the pregnancy.

It is already an offence under subsection (2) of section 23 to prescribe, administer, supply or procure any drug or substance, instrument, apparatus or other thing which is intended to be used to end the life of a foetus or to be reckless about whether it might be used for that purpose. The proposed amendment seeks to make it an offence to administer a drug without the consent of the woman such as to cause her termination. Any person other than a medical practitioner who administers a drug or instrument to a pregnant woman such as to terminate her pregnancy will be guilty of an offence pursuant to section 23 of the Bill.

Amendments Nos. 56 and 59 address the issue of coercion. The offence of coercion already exists in law under section 9 of the Non-Fatal Offences against the Person Act 1997. I am advised that any person who pressurises, threatens or tricks a woman into having an abortion in breach of the legislation would be considered a principal offender under section 23(1). If a person deceives a pregnant woman into terminating her pregnancy by taking abortion pills, this would be captured in the offence provided for in section 23.

Amendments Nos. 59 and 60 propose the deletion of the subsection of the Bill which makes it an offence for a person to aid, abet, counsel or procure a pregnant woman to intentionally end or attempt to end the life of the foetus of that pregnant woman otherwise than in accordance with the provisions of the Bill. These provisions ensure that anyone seeking to force or intimidate a woman into an illegal termination of pregnancy, such as in a situation of domestic or sexual abuse, for example, could be prosecuted. It would also cover situations in which a vulnerable woman is coerced into agreeing to undergo an illegal termination of pregnancy without medical assistance and possibly for sinister reasons. Criminalising a person who aids, abets, counsels or procures a woman to unlawfully terminate her pregnancy is necessary from a policy perspective even in situations where it could be portrayed as a benevolent act aimed at helping the pregnant woman because the health and well-being of the pregnant woman rests at the heart of policy in this area. Helping a pregnant woman to end her pregnancy outside the provisions of the Bill is not in her best interests and may put her health or life at risk.

One of the primary purposes of this legislation and of repealing the eighth amendment was to ensure that we could eliminate the risks that women face in consuming abortion pills sourced online or seeking an illegal abortion. The Bill provides women with access without charge to safe medical procedures carried out by registered medical practitioners in order that they no longer have to put their health and lives at risk by taking unregulated pills purchased online. We should not and will not criminalise the woman in any way, therefore we must ensure there is a link to the person who would be committing a criminal offence. Section 7 of the Criminal Law Act 1997 provides that any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender. As under this Bill the pregnant woman will not be committing an offence in undertaking the termination of her pregnancy, we must ensure there is a link to the person who could be committing an offence.

I have far more information before me on these matters but I do not intend to go through it all. I wished to quickly put some of those points on the record of the House such that people can use the transcript of this debate as a reference point in the discussions that there is no doubt we will have in the coming days.