Rónán Mullen (Independent) | Oireachtas source

I will not speak at the same length as previously because, to some degree, the Minister has answered the question I wanted to ask. On at least two occasions, interestingly, he referred to the provisions that allow for the possibility of giving life-sustaining treatment pending a court determination in relation to an AHD. He envisages that such a determination or court issue will arise where there is a clear statement in the AHD, which kind of throws us back to the previous debate somewhat. As I have said, that is interesting and we will touch on what the Minister will reflect on between now and Report Stage.

It is clearly the intent of the Government to make sure that where life-sustaining treatment is specified, and where there is a clear refusal even in the event of pregnancy, there will not be any second-guessing that. I have concerns about that, although I accept that this concern will not be as broadly held in this House. I feel very strongly that in a situation where a life could be retrieved from a very unhappy situation, surely the family should have some ability to raise that issue. Certainly, with the terms in which the Minister spoke of the court decisions to be made - I do not want to put words in his mouth – he suggested that it is a matter of a technical kind of decision-making by the courts, rather than any second-guessing of the substantial refusal of treatment.

Be that as it may, the Minister is changing the term “the unborn” to “her pregnancy”. He gave us the reason for that, which is to get away from the language of the eighth amendment. Is there any substantial difference? Does the Minister see avoiding a deleterious effect on "her pregnancy” as being in any way different in practice from avoiding a deleterious effect on "the unborn”? Does he see those phrases as completely comprehending the same thing? That is a question I am putting to the Minister.

Just because the phrase “the unborn” is no longer in the Constitution, why does it have to be the case that the phrase cannot exist in legislation in all of these situations? It seems that what is going on is to reduce the concept of the unborn to some kind of property right or bodily appendage. That is the only inference I can draw from why one would go to the trouble of excising the words “the unborn” and replacing them with “her pregnancy”. I asked the Minister whether it will make any substantial difference to what will happen. If it will not, I need do no more than express my personal regret that there is this kind of underlying attitude that nothing that is suggestive of external rights or external dignity to be enjoyed by the child is to be allowed in the terms of our legislation. I regret that. Again, I reiterate the point that it is out of keeping with the spirit even of the termination of pregnancy legislation, which as I have already said at great length, does accord, indirectly at least, through the continuing application of the criminal law to most situations post 12 weeks, some appreciation of the dignity and the demand for care and respect of what the Minister now calls “her pregnancy”, but which to people remains “the unborn”, “the child in the womb” and so on and so forth.

I regret this default to changing language. Perhaps the Minister will tell me that the wording is more precise or removes some mischief, or that some good will be achieved if we change the legislation. However, that is not what he has said. He has said he wants to get away from the language of the eighth amendment. The language of the eighth amendment left very clearly open to the Oireachtas the ability to protect the unborn, which it continues to have through the legislation of 2018. I listened carefully to the Minister’s views. However, I regret this reflex dismissal of references to "the unborn" and I reflect this kind of apparent allergy to any kind of wording that would tend to vindicate the rights or dignity of the unborn in any situation.