Thursday, 13 December 2018
Health (Regulation of Termination of Pregnancy) Bill 2018: Report and Final Stages
I thank Senators for their contributions and the work they put into the drafting of these amendments. They have put a lot of work into what is a very sensitive and important area that we are all determined to get right. As Senator Bacik said at the start of her contribution, I am conscious that while we are talking about the issue of criminalisation in the final grouping of amendments - that is just the way the sequencing works - those who are following the Bill closely should not forget that the Bill is about access and ensuring women can access lawful termination freely and safely in our country in a way they cannot do today. The Irish people instructed us to get on with it and ensure it happens and I am determined it will happen in this country from 1 January.
No pregnant woman will ever be criminalised under this legislation, which is a very significant difference from the situation today where women are living under the stigma and cloud of criminalisation for accessing healthcare. There will be no more of that. The pregnant woman will never be criminalised no matter how she accesses termination in this country. That is an important point.
We are living in a post-eighth-amendment Ireland and that is why Senator Bacik is so correct. It means this is not the only time we have to discuss and debate these issues. In the new year I will introduce health legislation on safe access zones. As the Senator reminds me - it is an important reminder because I am sure it will happen - Private Members' time in both Houses will allow the Oireachtas to continue to do what the people have now given us the power to do through the enabling provision in the Constitution to regulate this area. Unlike in Britain, where a Bill on this matter was passed more than 50 years ago and the position has been somewhat static since, we will continue to keep these areas under review to ensure the provisions are working as they are meant to work. If they are not working, we can take action to fix that.
In making those comments I appeal to Seanad Éireann, at the final stages of this legislation, not to do anything on the floor of this House that we have not had the opportunity to tease out in the comprehensive way that is necessary. My Department has worked extensively with the Office of the Attorney General over a sustained period to try to get this right. Time will tell if we have done so and Senators will have different views on that. I commit myself on the floor of the Seanad this evening to work with Senators in the new year as we prepare further legislation for safe access zones and to tease through some of these issues at the level of detail that I think is required and which I know many colleagues will think is required.
I have not used my notes much today, but I want to use them for this amendment because I want to take the opportunity to put some largely legalistic information on the record of the House. As Senators know, 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 considered a number of different ways of phrasing this offence, and I am legally informed the wording put forward in the Bill is the clearest formulation possible.
A termination of pregnancy is a medical procedure that can be lawfully carried out by a medical practitioner only. The wording in section 23(1) was necessary to clarify that it is an offence for all persons, whether a medical practitioner or not, other than a pregnant woman in respect of her own pregnancy, to intentionally end the life of the foetus otherwise than in accordance with the provisions of the Bill. It was decided that the wording used in section 23 was the clearest wording to convey the scope of the offences therein.
With regard to the Senators’ proposed amendment which seeks to make it an offence to cause injury or death to a pregnant woman such as to cause the termination of her pregnancy, it is already an offence to intentionally or recklessly assault, with or without injury, any person, and to intentionally or recklessly kill any person.
It seems that this proposed amendment would shift the main focus from protecting the pregnant woman to protecting the pregnancy. I am sure that is an unintended consequence. The Bill as drafted, on the other hand, focuses on protecting both the pregnant woman and the foetus. Furthermore, the offence proposed by the amended subsection (1) would appear to include the actions of a pregnant woman - again I am sure unintentionally - who injures herself so as to cause the termination of her pregnancy.
The second part of this amendment refers to consent or lack of consent by the pregnant woman. It proposes 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. Senators have also proposed an amendment which proposes adding the words, "Save in the case where a person is acting with explicit instruction from the pregnant woman".
Since behaviour which the law does not prohibit is permitted, the effect of these amendments is 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. Obviously that is a very significant departure from the grounds allowed in this legislation.
The effect of these amendments would be to make sections 9, 10, 11 and 12 completely redundant, since a doctor who carried out a termination on a consenting woman outside the parameters of these sections would not be committing any offence. Furthermore, the amendments would render it lawful for unqualified non-medical persons to carry out medical or surgical terminations on consenting women, at any stage in pregnancy. Again I imagine this is an unintended consequence which highlights my point about needing to tease these issues through in great detail and my commitment to do that with Senators.
Under section 23(2) of the Bill, it is already an offence to prescribe, administer, supply or procure any drug, substance, instrument, apparatus or other thing which is intended to be used with the intent of ending the life of a foetus or being reckless about whether it might be used for that purpose. The proposed amendment seeks to make it an offence to administer a drug, etc., without the consent of the woman such as to cause the termination of her pregnancy. Any person other than a medical practitioner who administers a drug or instrument, etc., to a pregnant woman such as to terminate her pregnancy will be guilty of an offence pursuant to section 23 of the Bill.
A medical practitioner is the only person permitted to carry out a termination in accordance with the provisions of the Bill. Section 21 provides that nothing in the Bill shall operate to affect any enactment or rule of law relating to consent on medical treatment. We already have had an extensive debate about consent provisions.
I will address the amendment Senators have proposed making reference to prosecutions not being brought against medical practitioners who are acting in good faith. Each section of the Bill dealing with grounds for termination of pregnancy, namely, sections 9 to 12, inclusive, specifies that the carrying out of a termination of pregnancy is lawful where the medical practitioners are of the reasonable opinion, formed in good faith, that certain requirements are met. These provisions have the same effect legally as the effect the Senators seek in their amendment. For that reason I cannot accept it.
I am keen to emphasise one point. Senator Bacik made this point too and it is an important one. We have framed this legislation to ensure that if a doctor is following a reasonable opinion in good faith on the stated grounds and carries out a termination, then the doctor will not be guilty of an offence. That is an important protection for our medical community.
Senators have proposed deleting the subsection that 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 pregnant woman's foetus otherwise than in accordance with the provisions. Senators have also proposed to amend the subsection to include reference to coercion. I am keen to point out that the offence of coercion already exists in law. It is provided for by section 9 of the Non-Fatal Offences Against the Person Act 1997. I sought the view of the Attorney General on the matter following our engagement yesterday and following Committee Stage as well. If it can be proved that a person's behaviour fits the offence, including in the context of termination of pregnancy, the accused can be charged under section 9 of the 1997 Act and may be found guilty of that offence. However, in the context of a woman terminating her own pregnancy it may be difficult to prove the offence of coercion for some behaviour that should be criminalised. For example, a dominant personality, rather than forcibly terminating a woman's pregnancy himself or herself, might induce the woman to terminate the pregnancy herself instead of attending a medical practitioner. The imbalance of power between the woman and the perpetrator in such cases is unclear. That is why it is important to get the balance right in this legislation and to avoid unintended consequences. We need to ensure we protect the woman while providing for a robust offence for coercion.
In situations of abuse it is easy to see how not criminalising those aiding, abetting, counselling or procuring an unlawful termination could be used by abusers to conceal the evidence of their abuse. This could happen under the guise of helping a pregnant woman to end an unwanted pregnancy. To allow such a thing to happen would be to further allow abuse to be perpetrated against a woman or girl. In such a situation, it may be difficult to prove the existence of the constituent elements of the offence of coercion. To capture all such circumstances, the Bill creates the offence of aiding, abetting, counselling or procuring a woman to end her own pregnancy, because that offence will cover situations where a person deliberately procures a termination of a woman's pregnancy for his or her own motives. In this way the Bill seeks to ensure that more insidious or other more subtle forms of pressure or control that do not fall easily within the offence of coercion but that result in or contribute to a pregnant woman terminating her own pregnancy constitute an offence.
I wish to assure Senators that I have thought long and hard about removing this section from the Bill but following the legal advice I have received, which is clear on the matter, we have yet to come up with a formula of words to overcome the issue. Were we to remove the provision, there would be nothing in the Bill, even with the amendments, to deter a person from aiding, abetting, counselling or procuring a pregnant woman to act outside the law. Such a scenario could accidentally and entirely unintentionally expose a woman to procure an unsafe termination of pregnancy that could put her life or health at risk.
I know we are all agreed on this. One of the arguments made by those of us who were in favour of repealing the eighth amendment time and again was that termination is a reality for Irish women. Abortion is a reality for Irish women. The only difference is that either it happens in a foreign country or it happens here illegally, in an unsafe manner and without medical supervision. We cannot say as much only to pass legislation that is blind to or that ignores that fact.
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 the principal offender. Again, the Houses of the Oireachtas have made a decision that a pregnant woman would never be committing any offence where she undertakes the termination of her pregnancy. Those normal provisions will not apply and, therefore, they could not be relied upon to charge any person who does aid or abet an offence. From a legal perspective, the phrase is well established and understood in its entirety. Therefore, it is one I was happy to continue to work on with Senators. However, I cannot accept the amendments currently before the House. It is necessary to impose a penalty for this offence, because the offence will cover situations where a person deliberately procures the termination of a woman's pregnancy for his or her own motives rather than those of the pregnant woman.
Those are the main points I wanted to make. I accept that this is an area we need to get right. I accept that people have sincerely held views. I accept that no one wants any unintended consequences and that we all want to the balance right. We have put a great deal of work into trying to get the balance right by never criminalising the woman who is pregnant in any situation regardless of what happens while always ensuring that if there is coercion, violence, abuse or medical negligence, then there are medical protections in place for the woman. This is something we should rightly expect in our country.
Let me be absolutely crystal clear on the question of safe access zones. There will be safe access zones in this country. I deplore what has happened outside some of our maternity hospitals. It was disgraceful to see our maternity hospitals having to tweet to advise pregnant women and their partners that they might wish to use a different way in to the hospital to avoid intimidation. Senator Gavan is entirely right to say that it was intimidation and harassment of people entering a hospital and that it is not acceptable.
To be honest, I had planned originally providing for it in this Bill. Based on the legal advice I have received it makes more sense to do it in separate legislation. I wish to reiterate on the record of the House a point Senator Bacik raised with me a moment ago. I am committed to doing this under health legislation. This is not something that I will make disappear or hand over to the Department of Justice and Equality. The measures will be brought forward in a health Bill in 2019. I have received Government approval for the drafting of these legislative proposals last July. The measures will allow patients, service providers, healthcare staff and members of the public to enter or leave premises without fear of intimidation or harassment and without being subjected to unwanted communications about termination of pregnancy by any means. It will include oral, written or visual displays like those many of us were subjected to during the referendum campaign.
To ensure full consideration of these issues and to ensure the publication of this important Bill would not be delayed, I have decided that the best way forward would be to provide for safe access to health services in separate companion legislation. As Senators have acknowledged, that will provide the opportunity to tease further through some of the issues we have been discussing this evening.