Rónán Mullen (Independent) | Oireachtas source

I welcome the Minister. I thank him for his engagement, and that of his officials, with me and other Senators, which arose out of concerns I raised on Committee Stage regarding a number of issues, including the one that is the subject of this amendment. It is fair to say that the Minister and I both clarified our thinking, to judge by the difference between the language in the Bill on Committee Stage and today. I also thank him for having his officials write to me with a summary of the discussion we had when we met.

I will not object to certain sections that I opposed on the previous occasion, when I raised the issue about what ought to happen where an AHD is silent on what should happen if a woman is pregnant and refusing treatment. On Committee Stage, the Minister said it was about the pregnant person who is making the AHD being in the same position as any other patient. The refinement of that position, however, which came through our conversation and was also clear from his officials, is that he has made the point, and I accept its validity, that a person who is pregnant but has not made an AHD would be in a different position. As I said, our thinking has moved on regarding that.

I am still of the view, even in the context of our abortion legislation where there is considerable protection for the unborn after 12 weeks, that there is a strong public policy argument for having and providing specifically for a presumption in favour of giving treatment in order to avoid a deleterious effect on the unborn when an AHD is silent as to whether the refusal of treatment in that regard applies to a pregnancy situation. As I said, that is, in a sense, water under the bridge. The Minister has made his point and I see a certain technical force to his argument.However, in our discussions with the Minister and his officials, we also discussed the other amendment that I tabled on Committee Stage, which is the one under discussion this evening. As he rightly said, this has to do with the temporary situation where the validity and applicability of an AHD for refusing treatment is under consideration by the courts. He seeks to continue the assurance in the law that a healthcare professional may continue to give treatment to avoid a deleterious effect on the unborn child, as it is in reality, pending the outcome of the deliberation on the AHD. We are agreed on that. This is a temporary safeguard to prevent a situation where the unborn child in the womb would suffer damage in circumstances where, in fact, the AHD might not be upheld or its validity might be in some way in doubt.

I have to correct the Minister on one point. He said that I am seeking to restore the position as it stood after the Dáil debate by restoring, as he would put it, the eighth amendment language of the unborn; I am not. My amendment does not reference the unborn; it references the unborn child. There is a significance to that. Before ever there was an eighth amendment, there was, and remains, reference to the "unborn child" in Irish legislation, as the Minister knows. I think it is section 59 of the Civil Liability Act 1961, which has to do with basically damage and the civil liability towards an unborn child who was injured in uteroand survived that situation. The law still refers to the "unborn child". There is nothing unconstitutional or confusing about it. As far as I know, the only place where a foetus is referred to - and this is the language the Minister used in his response to me on foot of my inquiries - is clearly in the abortion legislation. There is no constitutional problem with references to the unborn child in our law. If there was, the 1961 Act would surely have been amended.

There is a suggestion in what the Minister said that this is to avoid some kind of confusion where doctors or other healthcare professionals might go further than what the legislation is providing for. One would have to give some kind of evidence for that interpretation, because it is clear what the section under discussion does. It provides for the temporary permissibility of giving healthcare treatment in order to avoid damage to the unborn while the validity, etc., of the AHD is being determined by the courts. That is all that it involves. It is not an ongoing safeguard for the life of the unborn or anything like it and I do not think anybody is suggesting otherwise.

I refer to the Minister’s other argument, where he said it is somehow more holistic to get rid of a reference to the entity. I am reminded of Prince - the actor, the performer or the musician formerly known as Prince. The entity formerly called the “unborn” is now to be referred to as “her pregnancy”. Senator Seery Kearney, of course, raised an issue about that and I think Senator Black is concerned about the gender inclusivity of that. I will withhold any comment on that this evening. The idea that we must not ever refer to the unborn child again in legislation because it might somehow cast some kind of aspersion on our abortion law shows a poverty of thinking on the part of the Government and I would go so far as to say a meanness of spirit on behalf of the State. Nobody in the legislation is purporting to curtail the applicability of the abortion legislation, though many of us in the country see it as a tragic development in our law. The reality is that in the circumstances the Minister described, the unborn child, to use politically correct language that some people like to use, might have been a “much wanted child”. The idea that it is somehow more somehow more holistic to delete his or her humanity and just term him or her henceforth as “her pregnancy” is Orwellian. It seems that the Minister may think some kind of harm would flow from maintaining the reference.

This section of the legislation, which is being left intact, is precautionary for the sake not of the mother, but of the life that currently is in being. There are no two ways about it. That is what this is about. One is not trying to preserve a piece of tissue; one is trying to preserve a life, for the moment, until the AHD, which might have consequences for that life, is fully determined and investigated, as it were. The baby is being talked about. It would be tragic, indeed, if State and government officials just lost the capacity to refer to an unborn child in the womb lest they might be thought to be somehow subtracting from the abortion rights claimed by some and provided for in the law. That is a failure to engage in proper discernment about what individual Bills mean.

This legislation is not about the abortion law; it will not change it one way or the other. It is a precautionary step to avoid damaging the unborn child pending the determination of an AHD. It seems that one should not go changing language for no good reason. Using a word such as “holistic”, is, at it were, to try to cast some kind of whiff of incense over what is being proposed here. However, “holistic” means nothing in this situation. If one were to be holistic, generally, one is being inclusive. When we talk about holistic care of a person, we might be talking about social, emotional and physical care, that is, not just one dimension. I put it to the Minister that in this particular situation, being holistic would involve recognising that potentially a human life is being dealt with that may suffer damage in circumstances where the AHD, which might have consequences for that life, might not be upheld.

I received a helpful note from the Minister’s officials at his request and I thank him for it. As I said, I accept the force of some of the argument in it, particularly as regards the previous issue, which I have not opposed today, and I am not opposing those sections. However, the very short note I received on this particular point rightly states:

The provision only concerns treatment that may be provided by a healthcare professional outside the context of an AHD in circumstances where its validity or applicability is under consideration by the High Court. In changing the language used from “unborn” to “pregnancy”, the amendment ensures that healthcare professionals can provide any treatment required in respect of a pregnant directive maker.

The Minister is suggesting that if that language change is not made, they might be prevented from doing that. Where is the evidence for that? Where is the evidence that the Minister needs to change the language to ensure healthcare professionals can do whatever? The entire section is providing that they can provide care until such time as the AHD is determined. The reason they are providing that care is to avoid potentially damaging a life. That is the reality of what the section seeks to achieve, so why can the Minister not say it? Why are we so allergic now? Anyway, he is saying this ensures healthcare professionals can provide any treatment, including with regard to foetus, while the court is deliberating on the applicability, while also ensuring that the focus is on the treatment, will and preferences of the patient. That is getting a bit more to what the Minister is trying to say and do.

His officials said in our meeting that somehow he feels that if he names the unborn or unborn child as an entity, he is somehow taking the focus off the mother. However, again, that is a zero-sum game and conflictual interpretation of what is going on here. The mother has not made an AHD to destroy the life of her child. We accept that a person can make an AHD refusing treatment even if that compromises the life of her child.We accept that. However, the idea that the focus now needs to be kept on the treatment, will and preference of the patient by removing any reference to the baby, even though the very section is about protecting the baby in a precautionary way until the court has made its ruling, is mean-spirited. I do not say that as a personal accusation. I condemn the State, the statism and the hardness of heart that underlies that particular change. I ask the Minister, even at this stage, to accept my amendment on that small point for the sake of decency.