Seanad debates

Wednesday, 3 February 2016

Commencement Matters

Registration of Deaths

10:30 am

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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I welcome the Minister of State at the Department of Social Protection, Deputy Kevin Humphreys, to the House and wish him well in his re-election to the Dáil.

Photo of Jim WalshJim Walsh (Fianna Fail)
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Cuirim fáilte roimh an Aire Stáit go dtí an Teach inniu. Go n-éirí go mór leis sa toghchán romhainn. I welcome the Minister.

I would like to start by expressing again our sympathy for the Enright and Walsh families on what was a real tragedy, with the loss of a wife, a daughter and a granddaughter, and a very traumatic event for the family. We covered this debate to some extent during the passage through this House of the Civil Registration (Amendment) Bill 2014. I thank the Minister for the empathy and sympathy that he showed for those affected by the case in considering the amendments and, indeed, I know the family were grateful. While we did not get the amendments passed, we had a good debate, which raised the question: What is birth?

Interestingly, we have a commonly understood meaning for stillbirth which would not seem to cover circumstances in which a mother dies, the baby dies as a consequence and then the baby is removed from the woman's body by way of autopsy. I believe that was part of the dilemma that faced the coroner in this particular case, and his ruling is interesting. He relied upon the statutory interpretation but also took into account the provisions of the eighth amendment to the Constitution, to which he referred in his ruling. He also had correspondence with the Attorney General, who said that a death certificate could be issued under the stillbirth provisions. The coroner was not convinced of that, so he reconsidered the matter and considered the definition of stillborn child and the violation of the fundamental rights of the unborn child. He said that the majority of the definitions confirmed that birth means the separation of the unborn child from the body of the mother, and went on to say that the 2004 Act does not contain any restriction as to how a birth should occur. He ended up making the finding, as a matter of law, that the removal or separation of a non-living foetus from the mother in the course of an autopsy is a birth and that its death is therefore registerable. It was noteworthy that the Enright family thanked the coroner in court through their legal representatives for recognising the separate legal personality of the unborn child. The family, I believe, have asked him to reserve issuing the coroner's certificate pending consideration of the constitutional action that they have before the courts.Of course, none of us wanted them to go down that route, as the Minister acknowledged during the discussions we have had here. If the Minister of State is back in this Department, he may look again at the Civil Registration Act to see whether they might have what we could call a Mollie Enright amendment to the Act, which would recognise deaths of infants in such a case. Article 40.3.3° of the Constitution is interesting, particularly the Irish version, which states: "Admhaíonn an Stát ceart na mbeo gan breith chun a mbeatha" - in other words, the life that has not been born. To some extent, it is hard to rationalise that. I know that, under the law, this has happened previously, so there is probably a question mark in regard to it.

I look forward to the Minister of State's response. I think that he, like me, would feel that no family in such traumatic circumstances should have to fight so hard and also expose themselves to the exploitative legal costs we have in this country in order to pursue what they see as justice for their daughter and granddaughter. I would be interested to hear what the Minister of State has to say.

Photo of Kevin HumphreysKevin Humphreys (Dublin South East, Labour)
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In many ways, given the excitement that is going on around this place, this is an issue that brings us all back down to earth. The loss of a daughter or a grandchild is terrible for any family, particularly so when a grandfather loses his granddaughter and daughter in one tragic accident. While my expression of sympathy and empathy does not really help, I would still like to make it. I met the family in the House with Deputy Conway and Senator Walsh. I know this type of deep injury and the sense of loss probably never go away, and people just manage to live with them. I hope the Walsh and Enright families can, in many ways, move on with their lives, while always keeping Mary and Mollie very much in their thoughts. Those two families are very much in my thoughts today.

The loss of a child in any circumstances is an extremely sad experience for a family, and this case is especially tragic. It is important to say, in the first instance, that the Coroner Service and decisions made by coroners are matters for the Department of Justice and Equality. In a case where a coroner is involved, the obligation to initiate the process of registration rests with the coroner and the obligation is discharged by the issuing of the coroner's certificate containing the required particulars of the death concerned. The question of which section of the Act under which the certificate is issued is entirely one for the coroner.

While there have been media reports about the inquest into these tragic events, I do not have specific information to date as to the coroner's precise findings. In this case, as far as I am aware, a certificate has not yet been received from the coroner by the relevant registrar. I also understand that the issues in this case are the subject of High Court proceedings and would, therefore, be sub judice. Bearing this in mind, I am not in a position to comment. For the information of the House, I have circulated the relevant sections, which I will not read out as we have gone through them on many occasions in the Seanad.

I would like to conclude by again expressing my sympathies to the families. It is very hard to have to go on despite the loss of their daughter and grandchild, friend and sister. I want to express my good wishes to the Senator, who has followed this case throughout the process, as has Deputy Conway.The Senator has raised the matter on many occasions in the House and I hope it can be brought to a conclusion that will give the families some comfort. I thank the Senator for raising it.

Photo of Jim WalshJim Walsh (Fianna Fail)
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I know from talking with members of the family that they were appreciative of the manner in which the Minister of State approached this sensitive and traumatic situation in which they found themselves. It was a car crash and the mother was obviously driving the car. She was totally in the right and was driving on the correct side of the road when the other car veered across and crashed into her vehicle. Unfortunately, both she and her unborn baby were killed. The family was very anxious that the unborn baby - their daughter and granddaughter - would be recognised as an individual. I believe that has happened through the coroner's finding. I think he is just holding back on issuing his certificate pending the family's consideration of whether to proceed with a constitutional case.

This case has highlighted a matter that should be examined. Such an examination should contemplate the fact that baby Mollie Enright was seven and a half months. The Minister of State may have seen the photograph - taken at the autopsy - of her in her white gown. In circumstances where a baby like that has not been taken from the mother during an autopsy, families might still wish to have that unborn baby recognised in its own right as an individual. I believe this has now happened through the ruling of the coroner's court in this instance. I am of the view, therefore, that this matter must be examined because similar cases are sure to arise. There have been such cases in the past and there will be in the future.

Interestingly, when we talk about the Dublin-Monaghan bombings, an issue I have been strong on and would like to mention on my last day in the House, one of the 34 victims of that largest loss of life during the Troubles was Baby Doherty, the unborn baby of a pregnant woman who was killed. We all recognise that there were 34 victims. There is a need to examine the position of those who find themselves in such tragic circumstances, without allowing extraneous matters to cloud what should be done in the interests of justice.

I thank the Minister of State for the interest he took in this case and wish him well in the forthcoming election.

Photo of Kevin HumphreysKevin Humphreys (Dublin South East, Labour)
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Leaving aside this particular case, I have always felt we should be very careful regarding what we have in our Constitution and that many of these matters should be dealt with through legislation, particularly as medical science is evolving all the time. Difficult circumstances arise, such as those relating to the Dublin-Monaghan bombings mentioned by the Senator, and there will be other issues of this nature in the future.

Personally, I do not believe we need to repeal the eighth amendment. Rather, I am of the view that both Houses need to deal with this sensitive matter through legislation. That legislation should give us the flexibility to respond to certain tragic events. I am facing into an election and perhaps Senator Walsh is also facing into one. I am not too sure whether he is running again. However, other Members of this House will be running in the forthcoming elections. If re-elected, in our role as legislators, we should be brave enough to legislate on issues like this. I am concerned by the fact that we rush to embed things in our Constitution that should not be in it. These Houses have the capability to deal with these issues, as we have shown through the hearings held here by the Oireachtas Joint Committee on Health and Children, under the chairmanship of Deputy Jerry Buttimer, on the X case legislation.

Photo of Jim WalshJim Walsh (Fianna Fail)
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They ignored all the evidence.

Photo of Kevin HumphreysKevin Humphreys (Dublin South East, Labour)
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I would like to see the House deal with these matters in that kind of sensitive manner. Senators already involve themselves in pre-legislative scrutiny and have an excellent record in that regard. I believe legislation will be stronger, fairer and better able to respond to tragic circumstances as a result. I thank Senator Walsh for his kind remarks and thank the Cathaoirleach for his able assistance during the year and a half for which I have served as a Minister of State.

Photo of Jim WalshJim Walsh (Fianna Fail)
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It will not surprise the Minister of State to know I fundamentally disagree with him on repealing the eighth amendment.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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I wish the Minister of State well in his campaign.

Sitting suspended at 10.50 a.m. and resumed at 11.30 a.m.