Rónán Mullen (Independent) | Oireachtas source

I wish to speak on the section. It will take a few minutes. I am opposing section 73 of the Bill, which amends section 85 of the 2015 Act. That section, as it stands, allows for consideration of the interests of unborn children in a very rare set of circumstances. In summary, the existing section 85(6)(a) provides that where a woman lacks capacity and is pregnant but her AHD does not specifically envisage what should be done if she were pregnant, medical professionals should presume that treatment should be provided or continued if the lack of such treatment would endanger the life of her unborn child. Section 85(6)(b) allows that where a woman lacks capacity and is pregnant, and her AHD states that a specific treatment should be refused even in the event of pregnancy, in those situations an application shall be made to the High Court to seek its determination on whether the refusal of treatment should apply. These provisions have not been commenced in the seven years since they were passed. These provisions were or are a concession to the fact that an unborn child in the womb is a human person and his or her life simply has to be taken into account, at the very least, when decisions are being made in respect of medical care of their mother. Section 73 of the current Bill proposes to remove these elements of section 85 of the 2015 Act.

It may seem in the light of the repeal of the eighth amendment that the logic therefore is that all of these sections that refer to the unborn should be removed. However, that is not the case. I note that in the course of the Dáil debate on the Bill before us, the Minister justified the removal of the references to the unborn from section 85(6) of the 2015 Act on two grounds. First, he referred to the eighth amendment, the former Article 40.3.3° , when he said that section 85(6) as it stands was required by the then constitutional provision. The Minister then said: "As we know, that constitutional provision was wrong." We certainly do not know that it was wrong. Some people believed it to be wrong or undesirable. Others - one in three who voted, I believe - believed that it was right and should be kept. Really these were political, legal, moral and personal judgments. They do not amount to it being an established fact that the eighth amendment was right or wrong. The decision in the referendum, in fact, simply provided that the eighth amendment no longer be in the Constitution and that these matters be left to the Oireachtas to regulate. That is probably widely misunderstood. The fact that the eighth amendment was removed by the referendum and no longer exists in our Constitution or in our law does not actually mean that it was wrong. I think that while the Minister is correct in saying that the provisions he is proposing to delete were required by the presence of the eighth amendment, if that is his view, it certainly does not follow that the removal of the eighth amendment somehow requires that all legal rights held to the unborn must be abolished. It is not sufficiently well realised, perhaps partly because it does not suit the political establishment, and it is certainly not sufficiently well realised by the public, that the Oireachtas retains full latitude to extend the availability of abortion or to restrict it in accordance of its perception of what the common good requires. It is in that light that the Minister's proposed deletion of these sections must be considered.

I have a particular concern. When I looked up the explanatory memorandum to see how it was proposed to explain these sections in the current Bill, removing these provisions from the 2015 Act, of course I found nothing in it, is that not right? All of this arose in the context of the Dáil debate and Dáil proceedings if I am not mistaken. The point is that this is a substantive issue of human welfare and of considerable public sensitivity. It is therefore all the more concerning that something so far-reaching would just be proposed to be removed during the Dáil debate, or indeed that something so far-reaching would be proposed to be enacted during the Dáil debate without there being any significant public consultation at all.

Let us look at what the law requires. Our current law on abortion gives no protection whatsoever to unborn children up to 12 weeks' gestation. That is a matter of considerable regret to me and to many other citizens. It essentially treats them as unpersons or non-persons despite the heartbeat and other features that we consider to be unique to us as living human beings. My point in saying that is not to lament that section of our abortion legislation but to point to the fact that our law gives a degree of protection to children after the first trimester, after 12 weeks. They can only have their lives ended legally in a couple of specific instances such as where there is a health ground under the relevant section of the 2018 legislation, or in the case of what some people call a fatal foetal abnormality, which I prefer to think of as a life-limiting condition. This protection of unborn children from 12 weeks onwards, inadequate though it may be in my eyes and the eyes of many, is not required by the new provisions of Bunreacht na hÉireann, by the removal of the eighth amendment or by the status then of the provisions of the Constitution in light of the eighth amendment's removal.The protection of unborn children from 12 weeks onward, such as it is, inserted in 2018, is a policy choice of the Oireachtas. That leads to the question about whether the deletion of section 85 of the 2015 Act, which the Minister proposes in this legislation, conflicts with the policy stance of the Health (Regulation of Termination of Pregnancy) Act 2018. If unborn children after 12 weeks gestation are given any measure of protection of whatever degree of significance in the context of abortion, how can and why should their interests be completely ignored in the case of the consideration of an advance healthcare directive? That is the core question here.

The Minister gave a second rationale. He invoked the eighth amendment. I hope I have dealt with that reasonably. His second rationale for deleting section 85 was that this amendment had been drafted by Attorney General. The Minister previously stated, "The Office of the Attorney General identified a need for a related amendment to section 89." All of us, regardless of our views on the substantive issues at play here, should be very suspicious anytime any Minister invokes the name of the Attorney General when justifying any decision that is being made. I say that with great respect for the Attorney General but he or she is not accountable to these Houses. It is a convention, as we all know, that the Attorney General’s advice is not published and, therefore, his or her view is essentially whatever the Government says it is and we have to take Ministers at their word. This, of course, has led to a long and troubling practice that began, as it happened, under a Fine Gael-Labour Party coalition a decade ago, whereby the Attorney General’s name gets invoked to stymie debate, whitewash controversial decisions or to kill off proposals on supposed constitutional grounds.

It is not just me who is saying this. Professor David Kenny of Trinity College has written that successive Governments have elevated the Attorney General to being a “one-person Supreme Court”, granting one constitutional office holder a power of veto over all legislation. We all know that the advice of Attorneys General has clearly been used and abused for political reasons. I would not want that to happen here in respect of the reasons given for deleting section 85(6). Why would the Attorney General be involved in the removal of the reference to the unborn in section 85?

Following the abolition of the eighth amendment, the question of what rights unborn children have is a matter for the Oireachtas. We can grant the unborn as many or as few rights as we wish and, therefore, it is incumbent on us to think carefully about any of these measures and what their impacts might be. The abolition of the eighth amendment did not mean that all rights of the unborn must be abolished. It certainly does not require the abolition of the protections for the unborn from the 2015 Act. The removal of the references to the unborn is not a constitutional issue, but a policy choice by the Government. I do not understand why the Attorney General would be invoked in that context.

What is section 85, as it stands, attempting to do? Why is it there? Why was it inserted in legislation as recently as 2015? Why is there that acknowledgement of the unborn child? It was introduced as an amendment on Committee Stage in the Dáil by the then Minister, Kathleen Lynch, of the Labour Party. It was passed unanimously by the committee without debate or a vote. Nobody raised any objection to it on any Stage during its passage through the Dáil. In fact, the only objection raised to it was on Second Stage in the Seanad, where then Senator Bacik, admirable in her consistency in some ways, in her absolute hostility to the notion that any child in the womb would have rights as of law, was the only person to raise an objection to it. Curiously, she did not seek to remove it by way of amendment either on Committee Stage or Report Stage when it was before the Dáil recently.

Section 85, and the concession to the right of the unborn contained in, it passed into law without a single Deputy or Senator voting against it and with just one Senator raising any objection. The argument that it was somehow required by the provisions of the former Article 40.3.3° was not even advanced by the Government of the day. It makes me wonder how it is possible that a provision that was totally uncontroversial just seven years ago is now so objectionable that it ought to be abolished.

What we are talking about here is a presumption. All presumptions, as the Minister knows, may be displaced. However, in the first instance, with regard to the proposed deletion of section 85(6)(a), the AHD is silent on the subject of whether a specific refusal of treatment should apply in the event of pregnancy. It is merely required that it would be a presumption that if the refusal of treatment would have a deleterious effect on the unborn, there should be a presumption that the treatment be provided or continued. As I said, it is often a safeguard in law that something is a presumption in order that it may be displaced if circumstances prove otherwise. I ask Members to bear in mind that there could be very late-term pregnancies and in circumstances where the 2018 legislation gives a considerable measure of protection, according to some people’s reckoning. That was certainly what we were told at the time that the legislation was brought forward in 2018. Why is there to be no consideration at all of the claim to protection of a potentially late-term unborn baby in circumstances where the AHD is silent on the subject of what is to happen in the case of pregnancy?

The second part of it is where there is a specific refusal of treatment to apply, even if the person is pregnant. If a healthcare professional was concerned that the refusal of treatment would have a deleterious effect on the unborn, an application should be made to the High Court to determine whether the refusal of treatment should apply. Section 85(6)(a) is much stronger in the claim it imposes on any right-thinking person. Again, let us imagine a situation where, notwithstanding an AHD that said to refuse treatment even in the case of pregnancy, it is a matter of days before a child could survive and where loved ones hope against hope that the child might be saved. If the specifics of an AHD in those cases were to be invoked, not in contemplation of abortion, but at a different point in the past, it seems that an enormous injustice could take place and an awful lot of family members could be left in a terrible situation of grief. In many ways, when we talk abut such legislation, we need to be very sensitive because there are all sorts of different human dilemmas behind this. We are talking about these things days today in kind of very careful terms where we are addressing issues of law, and that to some extent is right because we do not want to be trotting out the details of people’s tragedies in any kind of glib way but it does not take a huge effort of the imagination to think about the injustice that removal of these two precautionary provisions could lead to. It is a flat order to do or not do anything. There is a presumption in one case and there is an appeal to the court to make a best interest decision, presumably, in the other.

I am concerned by the effect of removing these two provisions, but I am also concerned by what seems like a lack of thought, lack of public debate and the lack of care to the sensitivities of the situation that have gone into this proposal.This proposal does not relate to the eighth amendment. Those sections could have existed, and probably would have existed, if there was never an eighth amendment. Therefore, getting rid of them does not follow at all, as I think I have shown, from the removal of the eighth amendment. It is a question of policy choice and about how one serves the best interests here. It is not the case in the 2018 legislation that children after 12 weeks in the womb are just regarded as having no rights. That is simply not the logic of the 2018 legislation. I ask the Minister to consider this provision again and I will listen with care to his reply.