Rónán Mullen (Independent) | Oireachtas source

The Minister misunderstands the basis for my argument. I am not saying that what he is bringing about would be considered under the law as a termination of pregnancy and I am not arguing, at this point, against the provisions of our abortion law generally. I am drawing the Minister's attention to what our abortion law currently provides and arguing that what he is proposing to do does not follow the logic of it. He talks about equality but there is no equality between the woman who has a child that has gone beyond 12 weeks in the womb and the woman who is not pregnant in terms of their desire not to be pregnant. The law continues to insist on the protection of life in a considerable set of circumstances at a certain point. Therefore, it is wrong to just look at it through the cold lens of what strict equality means in every situation because there is not a strict equality in terms of the abortion law itself. A person does not have an absolute right to be as unpregnant as a person who is not pregnant once the baby has gone beyond 12 weeks in the womb. There is considerable legal protection. What I am saying is that there is clearly a public policy preference around the preservation of life. Arguably, it is rooted somewhere in the Constitution, although there are some who argue that the Constitution is completely silent on any rights for the unborn. If one thinks about it, the Constitution can do three things. It can permit something, ban something or mandate something. The Constitution as I understand it is in a neutral space because it leaves to the Legislature the determination of matters in relation to abortion. We are not talking about abortion here. We are talking about situations where an advance healthcare directive mandates the refusal of treatment.Of specific concern to me is where it provides for mandating a refusal of treatment but is silent on what is to happen in the case that the directive-maker is pregnant. I am saying to the Minister that the public policy vision behind the existing abortion law even is such that there is a good involved in protecting human life once it gets to a certain stage in the womb. Surely it follows that the presumption, where it is silent, should be in favour of protecting the unborn child's life in the womb. That is the point I am making.

The Minister makes the point that a person who is compos mentismay refuse treatment, even if that treatment or the refusal of same has a deleterious effect on the unborn. However, that is a different situation because the person is not silent; the person is in a position at that point to give the direction whereas the person is not if not compos mentis. That is the point and they are silent, at least in one part of the section the Minister is removing. There is a substantial difference between a situation where a person who is compos mentisrefuses treatment. People in that situation know they are pregnant and they refuse treatment and the law will respect that refusal; I get that. There is an argument to be made about whether that is disproportionate having regard to the possibility that there might be a late-term or well-established pregnancy and that the child might lose his or her life as a result but I get the fact that the law permits a compos mentisperson to refuse treatment. However, where they have not specified what is to happen in the event of pregnancy then it seems to me that it is more in keeping with what the law currently provides around termination of pregnancy, which is that one protects life to a very considerable degree after 12 weeks, to continue to have a presumption in favour of protecting that life. That is not asking a lot for an unborn child who might survive.

What the Minister is proposing to do is take away that presumption and leave unborn children in a situation where they are at the mercy of an application being made concerning the advance healthcare directive, which is threatening them. That is also subject to getting the right decision around the preservation of their life - because that is what it will amount to - from the court. It seems to me that is simply not decent. It is not decent to take away a presumption in favour of protecting a life and it is not decent to do so purely in the name of some kind of doctrinal version of equality that is divorced from real life human situations.

Let us say, for example, that one has a dispute among family members on what is to happen where a person has made an advance healthcare directive, silent on what is to happen if that person is pregnant. Let us say that dispute causes a delay in the bringing of an application to the court, and as I said the court might not make a decision in favour of preserving the life. Let us look at it in another way; why would one put the father of a child through the grief and stress of having to make an application to the court, simply because the presumption in favour of preserving the child's life has been removed? The Government is putting its vision, doctrine and dogma of equality ahead of the real life grief and trauma that the father of a child might be experiencing because it is forcing such people to have to make an application to the court and to hope the court makes a decision to administer treatment so as to avoid a deleterious effect on the unborn child in question. That lacks decency and humanity and I ask the Minister to think about this again. This has not been thought through properly and it is not decent.