Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

As the Senator suggests, the amendment proposes to amend the Act of 2015 by removing section 89(3)(b)(ii).While I understand the intent of the amendment is to give further effect to the changed constitutional provision and the deletion of section 85(6), which we discussed previously, the amendment is not necessarily following the said proposed deletion. That is an important difference between section 89 and section 85 of the 2015 Act. As distinct from section 85, which concerns the scope of AHDs in the context of pregnancy, section 89 concerns the role of courts in clarifying, where necessary, the validity of an AHD. It is designed to address a scenario where the will and preference of a directive-maker may not be clear in the AHD in question or another scenario where a legal mechanism is required to determine the validity of an AHD. The purpose of changing the term “the unborn” to “her pregnancy” in the amendment Bill is to avoid signalling the language of the previous constitutional position in the Bill’s text. This does not grant any power to alter or set aside an AHD where a clear expression of will and preference is contained in creating the instrument. However, it allows a very necessary interim period where treatment can be provided pending the court’s clarification of any issue regarding the validity or ambiguity of an AHD.

Section 89(2) relates to the role of the High Court, which will be the level required in the court system to receive an application involving considerations related to life-sustaining treatment regarding the applicability or validity of an AHD.

Section 89(3)(b)(ii), as it will be amended, provides that in circumstances where there has been an application under section 89(2) of the 2015 Act and the directive-maker is pregnant, there can be life-sustaining treatment for the mother and treatment to prevent a deleterious effect on her pregnancy. This change of language was chosen so as to avoid a reference to the previous constitutional position. As it will be amended, the section does not prioritise either the rights of the mother or the unborn. It is value-neutral and simply provides that treatment may be provided pending the decision of the High Court on an application to determine the validity of an AHD.

The earlier deletion of section 85(6) ensures that where a pregnant woman has made a valid and clear AHD that covers treatment during pregnancy, that AHD is valid and binding in the manner that all other AHDs are. As such, we would argue that there is no need for the amendment as proposed.