Rónán Mullen (Independent) | Oireachtas source

I thank the Minister for his response. I have not had sight of it. I would like to consider it carefully. It seems to me, however, that he is basing this entirely on a certain view of the demands of equality and autonomy and a certain interpretation of what they mean in this particular circumstance. What he is saying, basically, is that he wants a pregnant woman to be in exactly the same position as any other decision-maker - in other words, people who are not pregnant. The point I made to him on the previous occasion, however, was that it was not necessarily because of the provisions of the eighth amendment that one would have a precautionary provision that, if an AHD were silent as to what was to be done about the refusal of care in an AHD in the event of pregnancy, there would be a presumption in favour of continuing treatment where not to do so would have a deleterious effect on the unborn. I am not saying the Minister is proposing something that is unconstitutional but I would be very interested to hear what his view of the Constitution now is. Does he accept, first of all, that the Oireachtas is free to make whatever provisions it wishes in respect of abortion and treatments that might have an effect protective of the unborn or the opposite? It seems to me that one can assess what he is doing here only in the context of the possible outcomes of the change he is making.

I mentioned the previous day that, to some degree, we all try to avoid the detail of specific cases out of a need for sensitivity when we discuss these kinds of provisions, but there is, of course, another sense in which we can judge these kinds of provisions only in the light of what might actually happen in real-life situations. Has the Minister given consideration to what might happen in real-life situations? The position at the moment, no doubt inspired by the eighth amendment's provisions but not, as I said, required solely by those provisions but by considerations of public policy, is that if an AHD were silent about what was to happen in the event that the person making the directive was pregnant, there would be a presumption. It seems that is good public policy because it seeks to protect life if possible. The Minister is taking that away. What he is leaving us is a situation in which somebody might or might not make an application to the court about an AHD. The Minister is leaving open the possibility for healthcare-givers to continue to give life-sustaining treatment while the court makes a determination on the issue of the AHD. However, we could be talking about a relatively late-term unborn child, if I am not mistaken. The Minister is reducing the potential protection of a child who might otherwise live. He is doing so in the name of a certain idea of pure equality, but he is not reflecting on the real-life circumstances and what might actually happen.Currently, under the 2015 legislation, the presumption would be in favour of giving life-sustaining treatment in order to secure the safety and well-being of a child in utero. Now, the Minister is proposing to take this away. He is proposing to leave it to the possibility that "an interested person" will make an application to court. What if there is a dispute between different interested persons about what is to happen in that situation, about what is to happen to that child? Second, the Minister is leaving it open to the decision of the court and we do not know which judge might be making that decision or what attitude he or she might have. All sorts of issues and doubts come into play about what might actually happen. There are children who might have been saved under the 2015 legislation who will otherwise die, potentially, as a result of the change the Minister is making because he is leaving it open to the question of whether an application is made to the court and to the vagaries of what that court might decide.

I am not suggesting that the Minister will be breaking any law or that if he provides in the way he is doing, there will be some kind of offence that is caught under some other criminal legislation. I am not suggesting that at all but I am asking for consistency with the existing legislation on abortion, which clearly identifies a public policy desirable, which is that unborn children after 12 weeks would not have their lives terminated and that it would be a criminal offence to have their lives terminated except in certain defined circumstances, which the Minister knows. These circumstances are proposed to be limited and concern, for example, treatment necessary to save the life or health of a mother or situations where the baby is not deemed to be likely to survive beyond a certain period. Those are the limited circumstances where abortion is permitted after 12 weeks. Clearly, the law continues to envisage protection for the unborn child. In fact, some would say it envisages substantial protection for the unborn child after 12 weeks. Now the Minister, without any detailed consideration or public discussion, is proposing in separate legislation to bring about a situation where there is less protection, potentially, for certain children after 12 weeks in the womb compared with what is there under the 2015 legislation.

What would be so wrong with continuing to have a presumption in favour of continuing life-saving treatment if there is a pregnancy and where the advance healthcare directive is silent on the question of pregnancy? What would be so wrong with that? The nature of a presumption, of course, is that it may be rebutted. It is not absolute protection and it is not an absolute guarantee that the child's life will be preserved but it is anomalous to have substantial protection for children after 12 weeks in the womb under the abortion legislation and at the same time, to remove protection in the way the Minister is doing, so substantially, so that the question of sustaining a child's life in the womb after 12 weeks might depend on whether an application is made to the court and whether the court so decides. Under the current situation, there is a presumption in favour of preserving the child's life. What is it about abortion that motivates politicians, governments and establishment officials to think so little about the possibility of saving a child's life that they would remove even the presumption that life-sustaining treatment would be continued until such time as it is possible to sustain the child's life?