Tuesday, 11 December 2018
Health (Regulation of Termination of Pregnancy) Bill 2018: Committee Stage (Resumed)
I move amendment No. 43:
In page 14, after line 36, to insert the following:
“(7) A medical practitioner who wilfully or recklessly contravenes subsection (1) of this section shall be guilty of an offence.
(8) A person who is guilty of an offence under this section shall be liable—
(a) on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both,
(b) on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years, or both.”.
Catherine Ardagh, Ivana Bacik, Frances Black, Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Martin Conway, Gerard Craughwell, Maire Devine, Frank Feighan, Paul Gavan, Kevin Humphreys, Colette Kelleher, Anthony Lawlor, Pádraig MacLochlainn, Michael McDowell, Gabrielle McFadden, Catherine Noone, David Norris, Marie Louise O'Donnell, Grace O'Sullivan, Niall Ó Donnghaile, James Reilly, Lynn Ruane, Fintan Warfield.
I move amendment No. 44:
In page 15, between lines 2 and 3, to insert the following:
“Information and informed consent
21. (1) Except in a case of an immediate risk to the life, or of serious harm to the health, of the pregnant woman, where it is immediately necessary to carry out the termination of pregnancy in order to avert that risk, no termination of pregnancy shall be carried out without the voluntary and informed consent of the pregnant woman.
(2) Consent to a termination of pregnancy is voluntary and informed if and only if the medical practitioner who is to perform the termination of pregnancy or another medical practitioner assisting him or her—(a) has informed the pregnant woman, orally and in person, of the following:(i) medically accurate information that a reasonable patient in the position of the(b) in the case of a pregnant woman intending to avail of a termination of pregnancy in accordance with section 11, has offered the pregnant woman in person a printed copy of the document referred to insubsection (5),
pregnant woman would consider material to the decision of whether or not to undergo the termination of pregnancy, including:(I) the proposed termination of pregnancy method;(ii) the probable gestational age of the foetus at the time the termination of pregnancy is to be performed;
(II) the immediate and long-term medical risks associated with the proposed termination of pregnancy method;
(III) the medical risks associated with carrying her child to full term; and
(IV) alternatives to the termination of pregnancy;
(iii) the probable anatomical and physiological characteristics of the foetus at the time the termination of pregnancy is to be performed,
(c) in the case of a pregnant woman intending to avail of a termination of pregnancy in accordance with section 9or 12, has offered the pregnant woman in person a printed copy of the document referred to in subsection (6), and
(d) in the case of a pregnant woman who expresses a wish to receive the information contained in either of the documents referred to in paragraph (b)or (c)respectively but is unable to read the said document, has conveyed the said information to the woman in an appropriate alternative manner.(3) Where it is intended that a termination of pregnancy be performed using abortion inducing drugs, the person who supplies the drugs to the woman intending to have the termination of pregnancy shall, orally and in person, inform the woman of the following:(a) that it may be possible to reverse the effects of the abortion-inducing drugs should she change her mind, but that time is of the essence; and
(b) that information on reversing the effects of abortion-inducing drugs is available in the document referred to in subsection (6).(4) For the purposes of this section, “abortion-inducing drugs” means a medicine, drug, or any other substance prescribed or dispensed with the intent of terminating the clinically diagnosable pregnancy of a woman, with knowledge that the termination will with reasonable likelihood end the life of the foetus, other than drugs that may cause such a termination, but which are prescribed for other medical indication.
(5) The Health Service Executive shall cause to be published in both printed and digital formats a document containing information as to—(a) available medical and nursing assistance and care, including neonatal palliative care,
(b) available social and counselling supports and services, and
(c) contact details for public and private agencies and services,which may be of relevance and practical assistance for a pregnant woman in a case where a foetus has a condition referred to in section 11, including a pregnant woman who does not wish to avail of a termination of pregnancy in accordance with section 11.
(6) The Health Service Executive shall cause to be published in both printed and digital formats a document containing information as to:(a) public and private agencies and services available to assist a pregnant woman through pregnancy, upon childbirth, and while her child is dependent;
(b) information as to available medical assistance, supports and benefits for prenatal care, childbirth, and neonatal care;
(c) information on the support obligations of the father of a child who is born; and
(d) the information referred to in subsection (3)(a)and subsection (3)(b).(7) The Health Service Executive shall develop and maintain an internet website, which may be part of an existing website, on which the information referred to in subsections (5)and (6) can be viewed and from which the documents referred to in subsections (5)and (6)respectively can be obtained.
(8) The document referred to in subsection (6) shall also include the following statement:“There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or to place her or him for adoption. The law requires
that your health care professional give you the opportunity to call agencies like these before you undergo a termination of pregnancy.”.(9) Nothing in this Act shall operate to create an entitlement by a pregnant woman under the age of eighteen years to consent to medical treatment.
(10) A medical practitioner who carries out a termination of pregnancy in accordance with section 10 shall certify in writing in addition to the matters referred to in section 10(1):(a) the nature of the medical emergency; and
(b) in cases where the voluntary and informed consent of the woman concerned was not obtained, the reason for its not having been obtained.(11) The failure to comply with the requirements of this section shall provide the basis for:(a) a civil action for damages (including aggravated and exemplary damages) by the woman concerned for breach of statutory duty;
(b) professional disciplinary action against the health professional concerned.(12) In any matter referred to in subsection (11)the court shall, upon application by the woman concerned or of its own motion, allow a woman to proceed using solely her initials or a pseudonym and may make such other protective orders as it considers
necessary and appropriate to preserve the privacy of the woman concerned.”.
Amendment No. 44 is one I would have expected the Government or the pro-choice supporters of the Bill, or both, to propose. It tries to ensure full access to all possible information when a woman is considering having an abortion and that she will give full and voluntary consent to the procedure. Relevant knowledge is essential to give full consent. The amendment makes it clear that voluntary and informed consent would be necessary in all cases, other than where there is an immediate risk to the life of the woman or of serious harm to her health, as set out in other sections. As I made clear earlier, the amendment accepts the reality that we are not going to be able to divert the Government from the cruel course it has set. In that light and the light of our acceptance of the inevitability that these unjust procedures will be legalised as a result of the Bill, we seek modest, limited amendments, the support for which, we believe, goes far beyond the pro-life constituency.
The amendment would compel the HSE to provide full information for women on the medical care and counselling support available, the obligations of the father of the child, adoption services and so on. It would also provide women with a statutory right to take action against anyone who breached their right to access such information and claim damages against them.How can supporters of the Bill or the rights of women seriously oppose such measures? Why should a woman not be in a position to avail of relevant information?
Thankfully, the Bill has retained the three-day waiting period, although, it would appear, by the skin of its teeth. That is the sole, single, solitary, token restriction on the abortion on request regime brought about by this Bill. During the referendum campaign, the Tánaiste and Minister for Foreign Affairs and Trade, Deputy Coveney, said the purpose of the three-day period was so that women could receive the kind of information contained in this amendment. It seems strange, therefore, that his party colleagues are not willing to put his suggestion into action by voting for this amendment.
There has been a disturbing tone running through much the debate on this issue and similar issues. There seems to be a suggestion that providing a woman with alternatives and knowledge about alternatives to abortion or offering support to her if she keeps her baby is somehow an attempt to demean her, cause shame or even attack her womanhood. In the Dáil, I heard everyone from the Minister for Health to Deputy Coppinger and several other Deputies parroting this kind of mantra. Deputy O'Reilly said of a similar amendment that the intention was to highlight the shame, judgment and all the other things that go along with this. How does it show shame or judgment to offer women information about every possible assistance to which they are entitled? It shows how far we have come and how willing we are to reject the notion that giving women the best possible chance to be mothers and giving babies the best shot at life are somehow bad things. That is the view taken, namely, that this requirement to give information that facilitates informed consent is considered to be a bad thing. It seems that abortion is to be treated as the first and only option.
There was a time internationally when people like Hillary Clinton said abortion should be safe, legal and rare. Under pressure from the abortion industry, that became safe and legal because to suggest there is anything wrong or even regrettable about abortion offends the prevailing ideology. I think Nell McCafferty was quoted a number of years ago expressing the view that abortion was regrettable but necessary. Many people have moved on and do not want to allow it to be discussed as something that is regrettable, even though there is evidence that the consequences are not just terminal for the unborn child but can be very bad for mothers who suffer from abortion regret.
The mere provision of information that there are alternative courses of action is now portrayed as an attack on so-called reproductive rights. This leaves women woefully short, underserved and badly served by the State and the proponents of this legislation. We can do so much more for women and families who find themselves in difficult circumstances as a result of crisis pregnancy. This amendment would put all of that on a statutory footing.
This amendment does not apply to emergency grounds. It is about providing that termination of pregnancy - the procedure aimed at ending the life of the foetus - occurs with the voluntary and informed consent of the pregnant woman. It provides that the information to be given to the pregnant woman would be oral and in person, would be medically accurate in respect of the proposed termination of pregnancy method and the immediate and long-term medical risks associated with the proposed termination of pregnancy method, no more and no less than what the science and the latest knowledge provide. It would also provide information concerning the medical risks associated with carrying the child to full term. This is an even-handed amendment. However, the point is that it cannot just be a leaflet left in a surgery, negligently or carefully as the case may be. This is taken from Irish case law on informed consent. People who go on about paternalism and disempowering women should not object to treating women as rational, discerning persons who would benefit from being given information.
I support the amendment. It proposes to create a new section and does not deal with emergency situations. It proposes to replace section 21 with detailed provisions relating to consent, providing healthcare professionals with a clear framework within which to operate. It ensures insofar as possible that the consent of a pregnant woman to an abortion will be true and fully informed. It respects a woman's right to know the facts relevant to her decision and ensures that she is aware of alternatives available to her. It also affords her avenues of redress through appropriate court and disciplinary proceedings where she is not given the information to which she is entitled under the amendment. As is clear from subsection (1) of the proposed new section, it does not apply to emergency situations.
The amendment is about nothing other than ensuring provision of information so as to facilitate informed decision making. It does not limit access to lawful abortion in accordance with the Bill. Moreover, the amendment does not place any obligation on any woman seeking an abortion. Without this information, any consent obtained is not informed consent. Without this amendment, women who would elect not to have an abortion if they had complete information will instead go through with it. This must be unacceptable to all those who regard themselves as pro-choice and, accordingly, it is respectfully hoped that the amendment can be agreed without undue difficulty.
During the referendum campaign, the Tánaiste and Minister for Foreign Affairs and Trade assured people that the waiting period in section 12 of the Bill would involve counselling and offers of alternatives to abortion. This amendment goes some way towards aligning the Bill with what the Tánaiste promised at the time. It is clear that most abortions under the Bill will be elective procedures and the law requires that elective procedures require a high degree of disclosure. However, the scope of that very general obligation in common law is not always clear with regard to the given case. The kind of risks arising will vary from one procedure to another. As the obligation in common law is in nature a general obligation to disclose material risks, arguments sometimes arise in litigation as to whether a given risk was material. In addition, the disclosure obligations in Irish common law are not designed to address the added dimensions of abortion as compared with other procedures. Informed consent to an abortion requires more than just disclosure of risks.
Amendment No. 44 reflects an understanding that abortion decisions are more complex and significant than decisions about other procedures. Accordingly, in recognition of this, the amendment is immeasurably clearer than the general common law obligation and improves upon that obligation in terms of the range of information that it provides for. Amendment No. 44 is, therefore, essential to ensure that a woman is given the information she is entitled to receive to make an informed decision. It is also essential to provide clarity for healthcare professionals, eliminating needless uncertainty as to what should be disclosed.
Paragraph 11 of the eighth edition of the Medical Council's Guide to Professional Conduct and Ethics for Registered Medical Practitionersfrom 2016 addresses informed consent. Section 11 is commendable in that it reflects a patient's right to know, even where the information in question could cause upset. It is understandably framed in very general terms that do not give rise to anything remotely approaching a definitive obligation to provide the comprehensive information referred to in amendment No. 44.On a matter of such importance it would in any event be improper and inadequate to rely on Medical Council guidelines as opposed to the Act of the Oireachtas.
Essentially, when many women seek to obtain an abortion, they will do general scoping through a Google search, trying to inform themselves as best they can via the Internet or other means. This is about women who may not be in a position to do that and they deserve to know the full information and consequences as well. This amendment is about providing the information. The proposed section 21(2)(b), for example, is about offering a leaflet and section 21(2)(c) is about offering a different leaflet as a source of information or having it conveyed in another way where there are literacy issues etc. Either women will have checked this themselves or they deserve to know the information.
Canada has been referred to by me and others and the concept of informed consent is applied. I know the Canadian abortion model operates within the structure of governance there, as there is federal government and the provincial legislative chambers as well. As I understand it from the little research I have done, the private providers there ensure the woman is given information similar to what is contained in this amendment. This is to assist the woman and provide her with the full suite of information. Anybody going for a procedure of this nature should be afforded that consideration, and it is the purpose of the amendment.
I thank Senators for their contributions. As I outlined in the Dáil on what was a very similar amendment, I will not accept the amendment because the matter of consent is already adequately addressed in section 21 of the Bill, which clearly states that the provisions of the Bill will operate within the existing legal provisions with regard to consent for medical procedures. The Medical Council's guide to professional conduct and ethics for registered medical practitioners of 2016 provides thorough information on the appropriate process to be followed to obtain valid informed consent for medical procedures. Even the Senators' amendment mentions sanctions and professional disciplinary action against the health professional concerned. The methodology whereby health care professionals are disciplined or sanctioned if they do not comply with the rules comes from the regulatory body, which in this case is the Medical Council. It takes the law of the land and transposes it into a guide for medical practitioners before assessing any complaints about people not operating in compliance with the guide.
In addition, the HSE has published a national consent policy that includes detailed information on what constitutes valid and genuine consent and how to obtain it. As I stated, the provisions in the Bill in section 21 on consent are not aimed at any particular group around consent and I do not intend for this to change. Perhaps we do not agree on this but I want the process to be treated the same way as any other medical procedure, with the same rules around consent for this as any other procedure. I am aware a case is sometimes made for a special provision to be made around consent to termination of pregnancy but I am of the view that the same issues around consent arise across a number of issues with medical practice, whether those are contraception, gender realignment, cosmetic surgery or a whole variety of others. The same rules of consent apply.
I will reference the counselling issue. The Tánaiste was mentioned here and in the Dáil and his comments before the referendum appear to constitute a source that people wish to raise. The Tánaiste pointed out that counselling services would be available to people before they accessed a termination and the 24-7 helpline we have established, which will be called My Options, will go live on 1 January and be accompanied by a website. It will be operated by qualified and appropriate counsellors, unlike the people we sometimes see suggesting they are counsellors. Women will be offered counselling over the phone if they wish it or in person. Counselling is of course a voluntary matter and not mandatory. Anybody who requires counselling and wishes to have it on her range of options will have it available. The helpline will be non-directive; it will provide all the information for all the woman's options and any support required by that woman in accessing any of those options.
In the interests of clarity, I should point out that I was responding, as I thought it helpful, to a point raised by the co-sponsor of the amendment about the importance of counselling. I was endeavouring to be courteous.
The Minister mentioned the Irish Family Planning Association, IFPA, in recent times and said he was in touch with the organisation. It gave dangerous information to women at a certain point in the not-so-distant past, as reported in a national newspaper.
It is relevant. The Minister referred to counselling being non-directive but when people were found to have told women, for example, that they should lie about their abortion and say they had a miscarriage, the advice was criticised by the then master of the Rotunda Hospital as being potentially life-endangering. We must be very careful about who we give credit to for being non-directive. When counsellors have been found to discourage women from looking at ultrasound images, we can see that a service holding itself as non-directive is sometimes more than suggestive in trying to encourage people along the abortion pathway. It is to prevent such negative activity and try to make sincere the aspiration expressed by the Minister that he would wish abortion to be rare that it is very important to offer correct and relevant information.
Too often we have heard about women and parents who have said if only they had known about the hurt that abortion would cause or about the stage of development of a baby, they may have made a different choice. The provision of information in the way this amendment proposes is liberating and it does not subtract from the right that the legislation is giving to terminate a pregnancy. It is liberating in the sense that it might free women from making a decision that they would come to regret or that they would not have made if they had the information in question. The information required to be presented, both orally and in the form of printed literature, including in cases where families receive a diagnosis that a baby in utero has a life-limiting condition, would be important as it could mention perinatal hospice care, for example. The information either would be redundant because the woman knows it already or it would be needed if she does not already know it, and she deserves to be informed.Subsection (3) of the amendment states:
(3) Where it is intended that a termination of pregnancy be performed using abortion-inducing drugs, the person who supplies the drugs to the woman intending to have the termination of pregnancy shall, orally and in person, inform the woman of the following:
(a) that it may be possible to reverse the effects of the abortion-inducing drugs should she change her mind, but that time is of the essence; and
(b) that information on reversing the effects of abortion-inducing drugs is available in the document referred to in subsection (6).
Think about that for a moment. The Leas-Chathaoirleach is a businessman and he knows that in all sorts of other areas of business people have a cooling-off period.
Very successfully. You know all about how, as part of the rights we all now enjoy as consumers or people who enter into a contract, we are entitled to a certain cooling-off period. Let us say a woman is not aware of the fact that with regard to certain abortion-inducing drugs, should she change her mind that process is reversible. Would the Minister think it would be okay that a woman would not be informed of the possibility should she change her mind of reversing the process but that time may be of the essence? That is the kind of information we are talking about when we refer to informing consent. If the Minister is opposing this amendment it would mean he does not want to help people who might want to change their mind. To use a reference he used in the past, opposing this amendment would mean he would rather that people were scrambling around on the Internet looking for information that should be made available to them as part of this process.
Catherine Ardagh, Ivana Bacik, Frances Black, Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Martin Conway, Gerard Craughwell, Maire Devine, John Dolan, Frank Feighan, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Colette Kelleher, Anthony Lawlor, Gabrielle McFadden, Catherine Noone, David Norris, Niall Ó Donnghaile, James Reilly, Fintan Warfield.
I move amendment No. 45:
In page 15, between lines 5 and 6, to insert the following:
22. (1) A termination of pregnancy in respect of a pregnant minor may only be carried out in accordance with section 9 where a copy of the certification referred to in that section has been served on a parent of the minor at least 24 hours before the termination of pregnancy is carried out.(2) In respect of a pregnant minor, a copy of the certification referred to in section 10(2) shall be served on a parent of the minor—(a) before the termination of pregnancy is carried out, or(3) A termination of pregnancy in respect of a pregnant minor may only be carried out in accordance with section 11 where a copy of the certification referred to in that section has been served on a parent of the minor at least 48 hours before the termination of pregnancy is carried out.
(b) where it is not practicable to do so before the termination of pregnancy is carried out, as soon as may be but, in any event, not later than 2 days after the making of that certification.
(4) A termination of pregnancy in respect of a pregnant minor may only be carried out in accordance with section 12 where a copy of the certification referred to in that section has been served on a parent of the minor at least 72 hours before the termination of pregnancy is carried out.
(5) Service of any certification required to be served under this section shall be carried out in such manner as may be prescribed and shall be recorded in any notification required to be forwarded to the Minister under section 20.
(6) The High Court, upon application made to it by any interested party, and if satisfied that it is in the best interests of the minor concerned, may make an order dispensing with any requirement for service provided for under this section.
(7) An application under subsection (6) shall be made on notice to the parent or parents of the minor concerned, unless the High Court is satisfied that, in the particular circumstances of the case, it may justly proceed to hear and determine the application without notice to the parent or parents of the minor concerned.
(8) In this section—
“minor” means a woman who has not attained the age of 16 years;
“parent” includes—(a) a guardian appointed under the Guardianship of Infants Act 1964,
(b) any other natural or legal person acting in loco parentis in respect of the pregnant minor under any statutory power or order of a court, and
(c) in the case of a minor who has been adopted under the Adoption Acts, 1952 to 2010, or, where the child has been adopted outside the State and that adoption is recognised by the State by virtue of any statute or rule of law for the time being in force, the adopter or, where relevant, the surviving adopter.”.
I am withdrawing the amendment and will resubmit it on Report Stage.
I move amendment No. 46:
In page 15, between lines 5 and 6, to insert the following:
“Provision of foetal ultrasound imaging and auscultation of foetal heart tone
22. (1) At least 24 hours before the carrying out of a termination of pregnancy in accordance with section 9, section 11 or section 12 the relevant medical practitioner or a qualified person assisting the relevant medical practitioner shall perform ultrasound imaging of the foetus and auscultation of foetal heart tone.
(2) The active ultrasound image referred to in subsection (1) must be of a quality consistent with standard medical practice, shall contain the dimensions of the foetus, and shall accurately portray the presence of external members and internal organs of the foetus, if present or viewable.
(3) The auscultation of foetal heart tone referred to in subsection (1) must be of a quality consistent with standard medical practice.
(4) Before or during the imaging and auscultation services referred to in subsection (1), the relevant medical practitioner or the qualified person, as the case may be, shall offer the pregnant woman, orally and in person, the opportunity to view the active ultrasound of the foetus and hear the heartbeat of the foetus, if the heartbeat is audible.
(5) At least 24 hours before the carrying out of a termination of pregnancy the relevant medical practitioner shall certify that—(a) foetal ultrasound imaging and auscultation of foetal heart tone have been performed,
(b) the pregnant woman has been offered the opportunity to view the active ultrasound image of the foetus and to hear the heartbeat of the foetus, if the heartbeat is audible, and
(c) the pregnant woman either—(i) requested to view the active ultrasound imaging and hear auscultation of foetal heart tone, or(6) The relevant medical practitioner shall obtain the signature of the pregnant woman on the certification referred to in subsection (5) verifying that it is factually correct.
(ii) opted not to view the active ultrasound imaging and hear auscultation of foetal heart tone.
(7) A medical practitioner who contravenes subsection (1), (4), (5) or (6) shall be guilty of an offence.
(8) A person who is guilty of an offence under subsection (7) shall be liable—(a) on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both,
(b) on conviction on indictment to a fine or imprisonment for a term not exceeding 4 years, or both.(9) In this section—
“auscultation” means the act of listening for sounds made by internal organs of the foetus, specifically for a foetal heartbeat, utilising an ultrasound transducer and foetal heart rate (FHR) monitor or similar device;
“midwife” means a person whose name is for the time being registered in the midwives division of the register of nurses and midwives established under section 46 of the Nurses and Midwives Act 2011;
“nurse” means a person whose name is for the time being registered in the nurses division of the register of nurses and midwives established under section 46 of the Nurses and Midwives Act 2011;
“qualified person” means a nurse, midwife or medical practitioner who is competent to perform foetal ultrasound imaging and auscultation of foetal heart tone services;
“relevant medical practitioner” means—(a) in the case of a termination of pregnancy to be carried out in accordance with section 9 or 11, the obstetrician by whom the termination of pregnancy is to be carried out, and
(b) in the case of a termination of pregnancy to be carried out in accordance with section 12, the medical practitioner who has certified or is required to certify his or her opinion as to the matter referred to in subsection (1) of that section;“ultrasound” means the use of ultrasonic waves for diagnostic or therapeutic purposes, specifically to monitor a developing foetus.”.
Tabhair soicind amháin dom mar tá mé beagáinín míeagraithe agus tá fuadar fúm. Níl an fuinneamh chomh maith agus a bhí sé níos luaithe.
This amendment proposes to insert a new section entitled, Provision of foetal ultrasound imaging and auscultation of foetal heart tone. It provides that at least 24 hours before the carrying out of a termination of a pregnancy in accordance with section 9, 11 or 12, the relevant medical practitioner or qualified person assisting the relevant medical practitioner shall perform ultrasound imaging of the foetus and auscultation of foetal heart tone. The critical point of relevance to colleagues is that the amendment is not providing for this to happen under the section 10 ground. To ensure this is clear to colleagues, the amount places an obligation on the doctor, but only to offer the ultrasound. It should be read in conjunction with what was said by me and Senator Ó Domhnaill earlier about the importance of providing information and respecting that a person who is a rational actor is entitled to be offered information that is relevant to the decision. When I criticised the Irish Family Planning Association earlier, I did so in the context of there having been documented evidence in the Irish Independentof cases where counsellors told women not to look at the ultrasound because it would upset them to do so.
I raised a point of order earlier, which the Chair accepted, that it is common practice not to name organisations or individuals in the House who are not present and cannot defend themselves, especially in making this sort of unfounded allegation.
Beidh mé cúramach, a Chathaoirligh, ach is í an riail atá againn anseo ná nár chóir duine a cháineadh. I gcás rud atá tarlaithe, atá cruthaithe agus atá fíor a bhaineann le heagraíocht ach go háirithe, táimid i dteideal é a lua agus b'fhéidir go mbeadh sé tábhachtach go luafaí é. What I am saying is that if it should occur that there is factual evidence of something wrong that was done by an organisation, it is entirely appropriate to mention it because it may be relevant to the topic under discussion. Any other suggestion would be to engage in a form of censorship, which I would not have thought Senator Bacik would support.
Right away. As I have made clear, the obligation is on the doctor to offer the ultrasound. As I said, people who support rational action based on informed consent should be supportive of this amendment. Paternalism occurs in cases where one hears about a screen being turned away so that the woman could not observe or being told that she should not observe. This amendment does not provide for a woman having to see the ultrasound image against her will. It simply recognises that the offering of information is beneficial where it is done in a respectful way, having regard to the serious circumstances of crisis pregnancy, the need for sensitivity and the desirability, in the Minister's words, of helping to bring about a situation where abortion is rare. Knowledge might very well be the difference in the decision. As I have said, too many women have had to say, "If only I'd known and been told." The international experience, sadly, is of an abortion bandwagon that is so wedded to the idea of abortion as a social good, it holds back on sympathy and support insofar as it does not seek to provide information that might possibly lead to a change of mind. That is a sad reality within the abortion industry.
The debate in the Dáil on the issue of the provision of ultrasound scans, as on many issues, bordered on the surreal at times. One was almost left with the impression that ultrasound scans were some form of invasive procedure or some kind of cruel and unusual punishment. The Minister, Deputy Harris, used the very unfortunate phrase "subjected to an ultrasound". Women who are mothers or expectant mothers generally speak of their ultrasound in part trepidation and part joy. There is trepidation because there is always a chance that the scan might show some unwelcome or sad news but joy that they get to see their baby with their own eyes. I accept and realise that crisis pregnancy is very different but I have never heard ultrasound spoken of as if it were some kind of painful, onerous or unwelcome procedure, that is, until the recent Dáil debates. That is another first, and all in the name of the introduction of abortion, where a perfectly normal ordinary part of the diagnostic process in pregnancy is now portrayed as if it were some kind of outrageous burden.
I stress again that this amendment is about requiring doctors to offer an ultrasound. Its purpose is to ensure that a woman who wishes to view the ultrasound and hear the heartbeat can do so. It is as simple as that. It provides also for certain minimum standards in ultrasound monitoring to ensure clinical best practice. The section makes it absolutely clear that it is up to the woman whether she wishes to view the ultrasound. The notion of women being subjected to ultrasound, a perfectly normal procedure, is total nonsense designed to skew the issue. I hope it will not re-emerge in this Seanad debate on the subject.
There would be no ultrasound scans required in emergency situations unless it was deemed necessary for whatever reasons by the doctor handling the case. As with other amendments, this amendment does not restrict anyone's access to abortion under the Act. The fact that an ordinary, everyday scan for all women who are pregnant could be portrayed as a method of obstruction shows the depth to which the debate has sunk in many cases.
According to the testimony of Dr. Clíona Murphy of the Institute of Obstetricians and Gynaecologists at the health committee, it is thought that we should plan for a future in which the number of abortions will rise from approximately 4,000 now to 11,000, 12,000 or whatever figure was mentioned in the context of Scotland, which has a similar population to ours. We can also expect that approximately 30% of women will require a scan for uncertain dates if the Scottish experience is anything to go by.
Dr. Boylan, the same Dr. Boylan who is apparently being employed by the HSE to advise on the roll-out of abortion services, spoke about the infrastructural deficits in the system and the need to have adequate ultrasound provision in place. Has Dr. Boylan been pressing this view with the HSE and the Department of Health? Based on the Minister's replies on this issue in the Dáil, it would appear that is not the case and, if it is the case, he has not met with much success.
Dr. John O'Brien of the Irish College of General Practitioners and Dr. Mary Favier echoed these concerns and said that clinically speaking, the use of ultrasound was increasingly the preferred method of measuring gestational age as opposed to measuring based on the last menstrual period or LMP. I refer the Minister to a study published in the British Journal of Obstetrics and Gynaecology entitled, Routine ultrasound for pregnancy termination requests increases women's choice and reduces inappropriate treatment, by Catherine McGalliard and Marco Gaudoin.Their study found clear evidence that ultrasound led to a far more accurate measurement of gestational age. Measuring with reference to LMP tended to overestimate the gestational age which, in turn, led to women being offered surgical abortions unnecessarily when they could have been offered medical abortions because they were not as far along as had been initially thought. All of these points, whatever one's point of view on abortion, underscore the necessity of introducing a legal obligation for ultrasound to be performed and that it would involve an obligation on the doctor to make the offer.
Before we proceed, do I hear somebody on a phone behind those shutters? I hear a voice in the background. The person should leave the Chamber and use the anteroom. I can hear a voice, and if a Senator is using his or her phone in the Chamber, I will suspend for half an hour.
I will be extremely brief. Ultrasounds are an invasive procedure but there are many situations in which that invasive procedure is justified on medical grounds. This is why people have these procedures for medical reasons. This is covered by "examination" in terms of the Bill whereby an ultrasound is required as part of the examination.
I do not mind speaking over it while the situation is being resolved. In terms of the examination, ultrasound is already covered where it is medically required, but that is not what the amendment is doing. What the amendment is stating is there would be situations in which a woman may believe she has been offered an ultrasound by the doctor because it is medically necessary but in fact it is being offered by the doctor because he or she is legally obliged to do so. Ultrasounds will be brought in as a legal provision and doctors will be legally obliged to offer them. In terms of the relationship between the doctor and a woman, it is not an appropriate basis-----
-----on which the procedure would be offered. It is also deeply impractical because at present we have a situation whereby we know there are significant shortages in parts of Cork and other areas. Women are waiting until very late for anomaly scans that may be necessary in terms of perinatal care and ensuring the protection of a baby after birth. Ultrasounds should be medically necessary. They are not a legal cushion or a force of pressure to be applied to women.
I agree with Senator Higgins. The use of early ultrasound can be very invasive. When doctors carry out an early ultrasound they are very sympathetic and cautious with the patient because it can be quite frightening for women in a first pregnancy who might have had trouble. It is something doctors use with great care, skill, consent and explanation. Transvaginal ultrasound is used at a very early stage.
I take great offence to the amendment, especially in situations where women might have been raped. The wording does not state "offer". The wording is very clear. It states a practitioner shall perform an ultrasound. That wording is very strict and forces a doctor to perform this type of ultrasound. I want it on record that I do not agree with it and find it abhorrent that it has been tabled.
I despair at this amendment. I find it offensive. On the only other occasion I spoke today it was about trusting women. This is about control. This is trying to control women and further traumatise people who are in very difficult circumstances already. This is the worst one yet and I categorically oppose it.
The amendment would place a legal requirement on the medical practitioner to carry out an ultrasound. It is an offer as to whether the woman wishes to view it or not but it is a requirement that the doctor must do it. The difference between this and the other examples that Senator Mullen referenced in which a woman may go for an ultrasound during pregnancy is there is choice. What he is doing here is stating a woman can access the service only after a mandatory ultrasound has taken place, which she may or may not choose to view. The Senator would subject, and I use the word “subject” because there is no choice in this, the woman to an ultrasound. He would direct doctors as to how they must use a diagnostic tool. It would be quite breathtaking for us as politicians to tell a doctor when it is appropriate to use a diagnostic tool.
The point made by Senator Higgins is valid. We have a lot of work to do in this country to continue to improve access to diagnostic tools and ultrasound.
I assure people on the record of the House in the context of this legislation that great progress has been made in recent days to ensure there will be access to ultrasound where it is clinically appropriate. Let us be clear. There will be many occasions where a doctor will believe it appropriate for a woman to have an ultrasound and those resources and services will be in place. The difference is the doctor will make the decision as to whether the woman needs the ultrasound or the doctor needs it to obtain information. I am medically advised that a clinical assessment of dates in early pregnancy can be more accurate for estimating gestation than an ultrasound. Any woman who has been pregnant will be familiar with the process of going to the doctor and the doctor being able to date the pregnancy in discussion linked to LMP.
We had a lengthy discussion over the course of many hours about access and how we make sure there are not barriers to access. There are different views in the House as to how this is achieved. Certainly an ultrasound would mean an extra visit quite potentially for a woman, thus making access to termination more difficult. It is important to point out that I am medically advised the international guidelines do not recommend routine ultrasound in early pregnancy. This is really the case, I respectfully suggest. It is the job of medics to decide when it is appropriate for an ultrasound to take place and it is my responsibility to make sure they are in place for when the doctor makes that decision but not for when politicians make that decision.
I want to make several brief points on the amendment. The amendment specifies that the ultrasound shall be provided but it does not in any way confer responsibility on the woman to view the ultrasound. That is entirely optional. This is what happens in other jurisdictions, for example, a woman undertaking an abortion in the state of Ontario in Canada, where it is compulsory that the doctor carries out an ultrasound but it is entirely of the woman's choosing as to whether she views the ultrasound. The amendment is reflective of this position. Senator Mullen reflected the benefits of carrying it out not just to the woman but to the doctor because of the confirmation it can provide on the gestational age of the unborn, which is very important when we are playing around with weeks and days. There is a 12 week limit. When Dr. Boylan came before the committee, he spoke about the nine to 12 week window where women would require hospital management. This highlights the need for better informed medical practice in terms of having the advantages of ultrasound evidence.
There is also the opportunity that if a woman wishes to choose, we should not deny-----
Very often the argument on the other side is that the woman's choice is being levelled forward but that argument could follow through here also. We are actually providing a woman's choice here. The doctors shall carry out an ultrasound but it is entirely up to the woman's choosing whether she wants to view the monitor. We are not making it compulsory in the amendment that-----
Choice can be selective, it would appear, when required to be.This amendment follows through on the only detailed analysis carried out in the aftermath of the referendum. That was a field survey carried out by Amárach Research in August 2018 and published in October 2018. The gender breakdown of respondents was 49% men to 51% women. It was carried out across social classes, age groupings and regions of the country. Respondents were asked if they thought a woman seeking an abortion should be offered the choice of seeing an ultrasound before going through with the abortion. Some 1,000 people were surveyed. That provides an accuracy level of plus or minus 3%. The results of that survey indicated that 21% of all adults felt that an ultrasound should not be offered. However, 79% of adults surveyed said that the choice of seeing the ultrasound should be offered. Members should remember I am referring to the choice of seeing the ultrasound.
Otherwise, the woman will presumably have to obtain an ultrasound herself. There may be an additional cost burden for her associated with that. That is the purpose of this amendment. It is grounded in survey analysis from Amárach Research, which is the latest survey analysis in the aftermath of the referendum. The amendment is grounded in an attempt to facilitate the voice of the people. It is a reasonable amendment and it is grounded in choice. To suggest otherwise is to do a disservice.
The Minister is subjecting the unborn child to death. That is the difference. Every abortion situation involves a conflict of rights. This legislation dispossesses unborn children of the most basic human right, just as we celebrate and mark the 70th anniversary of the Universal Declaration of Human Rights. I refer also to conventions and documents that flowed from that, such as the UN Convention on the Rights of the Child, the preamble of which describes the special care to which the child is entitled "before as well as after birth" because of his or her particular vulnerability.
I say to the Minister and to colleagues that it is not, as Senator Ardagh says, abhorrent. It should not cause Senator Noone to despair and she should not find it offensive. This amendment does not in any way subtract from the right of the woman to make the eventual decision to have the abortion. Obviously I am opposed to that decision, but that right is not in any way reduced. It does not apply to section 10 situations. It is a very limited amendment. It does not require the woman to view the ultrasound. It takes as its starting point the fact that in certain counselling situations there has been so much ideology around the promotion of abortion that women have been discouraged from even looking at the ultrasound. These clinics carry out ultrasound scans routinely. It is a means of gathering information. It is entirely irrelevant for the Minister to suggest that other tools might be more accurate. I would say "both-and" is always better than "either-or". The Minister talks about an extra visit. I ask him to expand on that. Presumably two visits will be involved in the case of a section 12 abortion anyway. The Minister says that international guidelines do not recommend it. Again, this is more vague ministerial speak.
Do they discourage it or do they simply fail to recommend it? If they do discourage it, why do they discourage it? It is not rooted in a perspective on the welfare of the unborn child.
The Minister says that he wants abortions to be rare. As he is doing nothing in this legislation to help that to become a reality, frankly I must question the sincerity of that statement. If he really wants abortion to be rare, he will support amendments that involve accessing information and allowing women the freedom to receive that information. Dare I say it, he might even hope that in some situations that might cause a change of mind. What would be so wrong with that? Does the Minister really want abortion to be rare, or is it a matter of indifference to him as to whether it is? All of his actions in rejecting these limited amendments suggest the latter and that it is a matter of indifference to him.
He is doing nothing to support the provision of positive information that could save a life without subtracting from the right to abortion which the legislation rightly or wrongly confers. An ultrasound can only give useful and positive information. Only a radical ideology of choice could cause people to excoriate its usage or discourage the imposition of a requirement on doctors to offer information. This information might be medically necessary from the woman's point of view and might be a life-saver from the unborn child's point of view. At the very least the Minister should see those things as different but equally valid goods to be achieved.
I move amendment No. 47:
In page 15, lines 7 to 9, to delete all words from and including “Subject” in line 7 down to and including “or 12” in line 9 and substitute the following:“A medical practitioner, nurse or midwife shall not be obliged to carry out or to participate in carrying out a termination of pregnancy in accordance with section 9, 11 or 12 ”.
On Committee Stage in the Dáil on 6 November, the Minister, Deputy Harris, stated:
The Medical Council regulates our doctors, not me and not the Oireachtas. It tells our doctors how they are to behave and also provides for serious sanctions if our doctors do not behave in that way.
This is an extraordinary statement, considering what section 22 does as it stands. Under section 22 as it stands, it is the Oireachtas, or rather the Minister and the Government by diktat, which tells doctors how to behave. It is the Oireachtas which will compel doctors to choose between performing or participating directly in an abortion, or participating indirectly by referral onwards. This is explicitly what is provided for in the legislation.
The Medical Council did not seek this provision. The Minister and the Government did. As such, for the Minister to say, as he did in the committee proceedings, that the Medical Council tells doctors how to behave is just doublespeak. I listened to the Minister's contributions in the Dáil on freedom of conscience. He seems to contend that the law on conscientious objection is not being changed here because a similar duty to refer exists where all other treatments and procedures are concerned. However, that conveniently ignores the fact that the procedures and treatments that are legal in this country are changing radically. It makes no sense to state the law on conscientious objection has not changed when the context in which it is to apply has changed hugely. We are no longer talking about medically beneficial procedures. We are talking about procedures that kill innocent human beings in the early stages of their lives.
This is the first legal procedure by which a patient's life can be deliberately ended. In the words of the Bill, the procedure is designed to "end the life of a foetus", or the unborn child. This ends the two-patient model which has operated so successfully in Ireland for decades.The 2016 edition of the Medical Council's Guide to Professional Conduct and Ethics for Registered Medical Practitioners states, at clause 48.1: "You have an ethical duty to make every reasonable effort to protect the life and health of pregnant women and their unborn babies." This statement could not be any clearer. Doctors have an ethical duty to protect the lives of women and their unborn children. The Medical Council told the health committee last October that it is revising these guidelines in light of the referendum and the legislation. I do not envy it that task.
The debate on the last amendment took 26 minutes, only for the amendment to be withdrawn rather than put. I am inclined to disallow debating an amendment for 26 minutes only to withdraw it with a view to resubmitting it on Report Stage. One cannot have two bites at the cherry. Anyhow, I will let the Senator proceed. I will reflect on this but it is my view that if a Senator debates an amendment for almost half an hour and then decides to withdraw it with a view to resubmitting it, it does not comply with the meaning of moving and withdrawing. The Senator is on another issue so I will allow him to proceed.
I certainly will not be taking issue with whatever the Cathaoirleach decides other than that I would have hoped Senators would take on board the amendments and come to a more sober judgment on them, thereby affording them an opportunity to accept them on Report Stage. There will not, by definition, be a similar debate on Report Stage because Senators may speak only once on the issues. I will be guided by the Cathaoirleach, however.
I do not envy the Medical Council in its task of revising guidelines. It has said the process will take some time. It will certainly take skilled draftsmen to amend these guidelines without making it obvious that a doctor's ethical duty to unborn children is effectively being abolished by the Oireachtas. Interestingly, the guidelines go on to point out that it is "legally permissible" to perform abortions under certain circumstances under the law as it currently stands but it makes no statement as to the ethics of this. Therefore, the Medical Council guidelines implicitly draw a distinction between what is ethical and what is legal. It is also worth noting that the section of the guidelines dealing with abortion, clause 48, is immediately followed by the section on conscientious objection, clause 49. The two issues were clearly linked in the mind of the Medical Council when it originally drafted the guidelines.
The Bill seeks to abolish all of this. It drives a coach and four through the Medical Council's own ethical guideline by forcing the council to force doctors to say that what is now unethical is in fact ethical and that the unborn child is no longer a patient of the doctors, yet this legislation seeks to delete or abolish this ethical duty to the lives and health of unborn babies. I was on RTÉ's "The Week in Politics" last Sunday with a number of others Senators, including Senator Richmond, who raised the interesting point that in his view doctors have a right to conscientiously object but do not have a right to break the law of the land. This raises an interesting question, which I shall pose to Senators who support this legislation. Existing Medical Council guidelines contain an ethical duty to do everything to protect the life of an unborn child. This Bill now seeks to abolish that ethical duty on pain of criminal punishment for doctors. I ask those who support this Bill where we draw the line. What other principles of medical ethics can be overridden by legislation by a future Government and future Oireachtas? I ask colleagues to think very carefully about that. If one principle of medical ethics can be scrapped by the Oireachtas, then none of them is safe. There is no floor to how low we can stoop and nothing we cannot force doctors to do.
We have heard a lot of talk about the right of women to choose but what about a doctor's right to choose? How can one person's right to choose become a right to force somebody else to take part in something against his or her will and become a cog in the wheel, however directly or indirectly? If the State is to have no right to tell women what to do, then why is it in a position to tell doctors what to do where telling them to do what it expects of them goes against everything they have always believed to be true and good, having regard to their deeply held beliefs and best clinical judgment? Just because the law no longer sees the baby as a patient does not mean good doctors will not still hold these beliefs, including where abortion is being sought. Therefore, it cannot be maintained that forcing doctors to refer that invisible patient, that less visible patient, that more vulnerable patient, although both persons involved might well be vulnerable, to another doctor to have their life ended is in accord with respect for conscientious objection. This aspect of the Bill, which forces doctors to refer, simply has to be amended. There will be more than enough doctors who will be willing to carry out these procedures so what is the need to force others to refer? At least 25% of general practitioners have said they are willing to perform the service, I gather. That is approximately 625. Assuming a worst-case scenario and 12,000 abortions per annum, as Dr. Peter Boylan and his colleagues suggested at the Oireachtas health committee, it would mean each willing general practitioner would need to perform a maximum of 20 terminations per year. These are shocking figures, of course, but they at least show that allowing those doctors who wish to participate to do so and equally allowing those who wish not to participate not to do so will still ensure adequate coverage of the service, if that is what the House wishes. I urge colleagues on all sides of the House to support these amendments to show solidarity with doctors around the country who, I am sure, have been in contact with them in regard to this most serious of issues.
We are not just talking about the rights of doctors here. We are also talking about the rights of medical practitioners, nurses and midwives. Senator Norris is proposing, as are we, the inclusion of pharmacists. I spoke to a pharmacist the other day who is terrified of the consequences of being required by law to prescribe a drug that would be used upstairs to terminate the life of innocent child. That person wonders whether he or she has a future in the organisation. He or she wonders whether there will be any reasonable accommodation for their position.
It is important, however, to consider a perhaps even more significant issue than the right to refer. I call the relevant amendment the "Minister Harris amendment" because, on Committee Stage, he said a medical practitioner shall not be obliged to take part, but that is different from what is in the Bill. The Bill states nothing in the Act shall be construed as obliging any medical practitioner, nurse or midwife to carry out or participate in carrying out a termination of pregnancy in accordance with sections 9, 11 or 12 to which he or she has a conscientious objection. The difference is that the Minister said on Committee Stage that a practitioner would not be obliged. That can only mean there is protection or that he was claiming there was protection for a person who might be obliged by his employer, for example, to take part in abortion. The Minister's Bill, however, does not require medical practitioners, nurses or midwives to get involved but it does nothing to protect, in the new scenario he is bringing about, medical practitioners, nurses, midwives and pharmacists from being required by the rules, including the rules of the organisation with which they have a contract to work, to become involved. They could lose their job. The provision of limited protection for conscientious objection is effectively null. While the Bill will not impose an obligation, it does nothing to protect practitioners from the pressure that will be put on them under contract or by their employer. This is how the Minister's provision in this Bill differs from provisions on conscientious objection in other places. That is an important issue he should address here.
I support these amendments. I vigorously opposed a number of Senator Mullen's amendments and believed they were shameful but I support these ones. I will not rehearse too much my support for amendment No. 47.I stated earlier on in this discussion that, although I believe abortion is necessary and justifiable, and morally good in certain circumstances, forcing medical practitioners to refer is the equivalent of them being an accessory. That is my view. People should not be forced to violate their conscience in any way.
It has been said that the Code of Conduct for Pharmacists covers the matter of pharmacists I raise in my amendment. My good friend and colleague, Senator Bacik, has shown me a phrase that she thought fulfilled this requirement. Having read it, I do not believe it does. I have had contact from a number of pharmacists who state that the Code of Conduct for Pharmacists 2009 and the draft code published in June 2018 but not adopted clearly show that pharmacists' rights to freedom of conscience are nowhere mentioned or protected. One of these, who seems to be a rather distinguished woman with a PhD, quotes the Minister, Deputy Harris, as saying that pharmacists are protected and they have their own legislation for a code of conduct. This person states that the same could be said for doctors, nurses and midwives but they are not included. The person said the Minister stated that the conscientious objection clause does not refer to other personnel in institutions for the express purpose of clarifying that those staff in institutions are not entitled to conscientious objection. I wonder if the Minister could confirm that it is, indeed, his view that other professional groups are not entitled to conscientious objection. That is rather serious, particularly in the light of the report from the Irish Human Rights and Equality Commission, recommendation 20 of which states: "The Commission recommends that the provisions of Head 15 be made to apply more broadly than currently outlined in Head 15(1), to provide for the possibility of conscientious objection by the broader range of health and social care profession with whom a pregnant woman or girl may come into contact." That is quite clear. It is explicit and makes the point that the commission is independent. It is not campaigning for or against abortion or anything like that. The commission is saying that head 15 should be made to apply more generally to cater for freedom of conscience and the conscientious objection of other professionals within this general range of expertise, and we must take this seriously.
I understand part of the position taken by my friends with whom I do not agree because there is a judgment from the European Court of Human Rights that: "States are obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation." That freedom of conscience should not frustrate the operation of the legislation is an interesting and important point that must be taken into account but given the numbers of doctors who are prepared to be engaged in this and have no difficulty with it, I do not believe that allowing doctors the complete freedom of conscience and extending this to cover pharmacists would inhibit the implementation of this legislation.
I understand that.
How it would work in action is by giving pharmacists the right of freedom of conscience, the right not to dispense these matters. I believe they would be very widely available, even in circumstances where this was registered.
Those are my views and I will stand with them. I will license my friend, Senator Bacik, to withdraw on my behalf my amendment about pharmacists with the intention of resubmitting it on Report Stage.
I will be brief. Indeed, all of us on this side have been brief and concise in our contributions in the 15 hours we have had so far on Committee Stage. Certainly, for my own part and for the part of others, we have sat in rather dignified silence and shown considerable self-restraint in the face of some language that was, unfortunately, disrespectful about women and about our bodies.
I fundamentally disagree with these amendments, in particular, with amendments Nos. 47 and 50, which effectively create a skewed balance between the rights of conscientious objection which are respected in this section 22 and the right of women to access medical services. Senator Norris is correct, of course, that there is European case law on this. There is, indeed, a useful report, published in October of this year, from the European Parliament on conscientious objection law and sexual and reproductive health rights which makes clear that the right to conscientious objection is not absolute, it must not be a barrier to accessing sexual and reproductive health services and that this is the case across the EU and also in Ireland.
Indeed, I would support section 22 because it strikes that careful balance between respecting the rights of conscientious objection of medical practitioners, nurses and midwives, and, indeed, students, as per an amendment in the Dáil, and the rights of women to access services. That is, as I say, a careful balance that is well struck and, of course, does not affect the duty to participate in a termination in accordance with section 10, which is the emergency section.
Unfortunately, given how much debate there was on this issue in the other House, what we have seen is, as the Minister put it, not so much conscientious objection as conscientious obstruction being carried out in the shape of some of these amendments. Anyone who looks objectively at section 22 will see that it strikes this careful balance. In particular, subsection (3) ensures that there is an obligation to make arrangements for the transfer of care. It merely puts it at that. That is fair.
Finally, in terms of the pharmacy point raised by my friend, Senator Norris, the Pharmaceutical Society of Ireland has in its Code of Conduct for Pharmacists an obligation that where they are unable to provide prescribed medicines or pharmacy services, they must take reasonable action to ensure that those medicines or services are provided to patients and that their care is not jeopardised. That is rather similar language to the sort of balancing act struck in this section.
Finally, much of the debate around this Bill and the provision of services focused on the medical practitioners, the doctors etc. I was disappointing that the Coombe hospital, where I had a happy experience having my own babies, indicated it would not be in a position to provide services from 1 January. It is unfortunate that the debate has been so focused upon doctors and not upon women.
It is important in our contributions, particularly on this issue of conscientious objection, that we bear in mind that the key aim here in this legislation is to ensure that women will have effective access to the services we so badly need.
I support this group of amendments and acknowledge what Senators have said.
As for the rationale for these amendments, first, amendment No. 47 endeavours to reframe section 22(1) so that it provides a positive and substantive protection of freedom of conscience. The current section 22(1) states that nothing in the Bill obliges a doctor, nurse or midwife to participate in carrying out a termination under section 9, 11 or 12. However, the concern is that this leaves a serious gap in protection because it merely states that the Bill does not force doctors, nurses or midwives to participate. It, therefore, does not prevent the imposition of such compulsion by an employer or professional body, and there is where the difficulty arises.
A situation, which I referred to on Second Stage, arose in Norway where a doctor who was not willing to perform an abortion was removed from his position by the public health service because of his conscientious objection. The individual concerned took a case to the Norwegian Supreme Court.In mid-October of this year he won the case on the basis that he deserved to make a conscientious objection. If this matter is not addressed in this Bill then we run the same risk of exposing the taxpayer here to a case. We and other countries should learn from what happened in Norway. Accordingly, the amendment at issue improves the protection by closing the gap and ensuring that no-one can lawfully be forced into carrying out a termination other than in an emergency as provided for under section 10.
This amendment also reflects international best practice models for recognising the right to conscientious objection. It is based on section 46(1) of the New Zealand Contraception, Sterilisation and Abortion Act 1977, which provides:
Notwithstandinganythinginanyotherenactment, or anyrule of law, or the terms of anyoath or of anycontract (whether of employment or otherwise), no medical practitioner, nurse, or otherperson shall be under anyobligation —(a) to perform or assist inthe performance of an abortion.
The UK Abortion Act 1967, which has been referred to here many times, also provides for a substantive protection at section 4(1), which reads: "Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has" [or she has] "a conscientious objection." There is a similar provision in US federal law. For instance, the "church amendments" ensure that an individual or entity who receives a grant, contract or loan does not entitle a public authority to require the individual to perform or assist in the performance of an abortion if that would be contrary to his or her religious beliefs or moral convictions. In addition, it does not entitle a public authority to require an entity to makes its facilities available for the performance of any abortion if the performance of such an abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions. The "church amendments" also provide protections against discrimination in the context of employment and medical training based on whether or not someone has a conscientious objection to abortion. Additionally, there is international expert opinion in medical literature that supports the view that denial of conscientious rights is a cause of disillusionment and burnout in doctors, and disengagement from particular areas of practice. I am sure that is something that the Minister would not like to see happen here.
I shall read the prepared note that the Minister put on the record during Committee Stage in the Dáil. He said the following about section 24, which was possibly numbered section 23 but I may be mistaken. He said: "Where he or she has a conscientious objection, a medical practitioner, nurse or midwife shall not be obliged to carry out or participate in the carrying out of a termination of pregnancy." In line with this confirmation of the intent of the section, this amendment revises section 24(1) so as to give it the effect that the Minister told the Select Committee on Health that it would have.
A conscientious objection goes further than just the medical practitioner or the doctor. It extends to those people who would be expected to assist or perform, and I mean other healthcare workers, including midwives. I can categorically state the following. I have spoken to a large number of GPs and midwives who are extremely concerned and frightened at the concept of having to perform an abortion from 1 January. One of those midwives wrote to me and I assure Members that I will not identify her or the hospital where she works. The midwife is highly concerned, which will be evident when I read her letter into the record. She explained everything from her standpoint. I shall not read her full letter, just the main parts. I confirm that I know the lady. She said:
I am a midwife at. For the very first time in my 31 years of a nursing-midwifery career I am now facing the biggest moral and ethical issue to ever confront me in my professional practice. Like many of my colleagues, I have very serious concerns regarding the introduction of abortion services to Ireland which is currently going through the Dáil to be passed into legislation.
I trained in the Irish healthcare system and I have never worked abroad. For the first time ever in Ireland, against their ethos of preserving life, nurses and midwives are now facing being told they must partake in the killing of unborn human life. I do appreciate the democracy of the society in which I live. However, I am now pleading with you, the legislator, to give consideration to my position as a midwife working at the front line in the Irish health service. No nurse or midwife would have a problem where the life of the mother is in serious danger. This is not the case with the proposed new legislation. Abortions will now be demanded and planned, and women will be admitted to hospitals for elective procedures. Given that 97% of terminations in the UK are on the grounds of mental health, this is a major concern. To date, in my midwifery career, I have not encountered such serious mental health issues in a pregnant woman as to require termination of her pregnancy.
I am a conscientious objector from a moral, religious, ethical and humanitarian perspective. I cannot and will not take any part in any procedure that involves the intentional termination of the life of an unborn baby. This includes any preparation leading up to the procedure or the transfer of care to my colleague. This must be protected in the upcoming legislation.
Over recent weeks I have had discussions with various nursing colleagues working in the areas of gynaecology, theatre and also with nurse-midwife sonographers. They too have all expressed their personal and professional concerns with involvement in abortion services. Nurses working in gynaecology wards around the country are going to see their practice hugely impacted by legislation to introduce unrestricted abortion in the first 12 weeks of gestation. The severe expected [normal] effects of those abortion pills will undoubtedly result in women presenting to our gynae wards as walk-in cases or, indeed, as referrals from GPs who will not be in a position to manage the care themselves. There will indeed also be a number of these women who will require ERPC and will therefore require hospital admission involving a surgical procedure. [The acronym ERPC means the evacuation of retained products of conception].
Many women suffering spontaneous miscarriage in this gestation range require to undergo this procedure. So those inducing their pregnancy loss carry the same risk for the need for such surgical intervention. In addition to the nurses in our gynaecology wards this then also impacts nurses working in our operating theatre departments.
Aside from the issue around conscientious objection in a deteriorating work environment that is already putting huge pressure on staff, the public health service has neither capacity nor staff resources to facilitate such service. One of my midwife sonographer colleagues said to me at work recently "We are already struggling to provide a service to mothers who desperately want their babies" and that she does not wish to be involved in preparing a mother for a procedure to kill others. Personally, I have myself begun-----
I take it from what Senator Ó Domhnaill has said, the midwife objects to the entire Bill and not the section. I do not dispute the sincerity of the person who wrote the letter. I understand that the entire Bill does not suit her, and she is entitled to her view. We are debating a particular section here. When I allowed the Senator to read the letter I presumed that it would just be a few paragraphs. He has been reading for almost five minutes and I hope he is near the end of the letter.
This letter relates to conscientious objection in its totality. The person who wrote it is setting out her views. I am trying to air them. I have received hundreds of letters about this issue. I felt that this letter deserved particular attention by being read into the record of the House. It will stand the test of time. I hope it will protect the unspoken voices of midwives out there who are concerned. The letter continues:
On the point often made of what happens in other countries, we are unlike any one of those other countries. We had a referendum - they didn't. The citizens were asked "Yes" or "No". I appreciate we live in a democracy, but surely those of us who voted "No" for the reasons we did cannot now be expected to be able to set those reasons aside and get on with it as some are telling us to do. I am concerned that among some political circles, including some who are members of the select committee, my colleagues and I are now being referred to as "anti-choicers". We are not; we are conscientious objectors. As I have said before, I respect the democratic result of the repeal amendment, but "pro-choice" was a term we became very familiar with during the campaign.
She is quoting that. She goes on:
I sincerely hope that midwives like myself and other healthcare professionals who are now pro-choice of the abstaining ourselves from any procedure that will bring about the death of an unborn human life will have that respect reciprocated.
I think that is very fair. There is much more to the letter. I will not go on.
With all due respect, a letter is a letter but that is like an epitaph. I have to be very careful in allowing it to be read because somebody else could come in and keep us here all night by reading ten such letters onto the record. As I said earlier, with all due respect, the letter broadly says "No" to this legislation and does not refer exactly to the amendment before us. I cannot allow it. I have to be very fair.
I am checking everybody's time. Senator Ó Domhnaill has spent almost 12 minutes reading a letter into the record. I presumed it was a couple of paragraphs. The Senator said he was reading "some" of it into the record It must be an awful long letter. Anyway, the Senator has made his point. There are three or four more speakers. I will let them in in due course.
Many members of staff in the midwifery section of Letterkenny General Hospital and many other hospitals have conscientious objections and are highly concerned about the introduction of this legislation. Like midwifery staff, pharmacists, who have been mentioned during this debate, have raised their conscientious objection to the provision of the services they will be expected to provide under this Bill. It is alarming that the Minister does not appear to be willing to concede to meet the doctors, midwifery staff and pharmacists who are advocating for conscientious objection to discuss these issues with them. I know for a fact that the Hospital Pharmacists Association of Ireland wrote to the Minister about the conscientious objection issue recently. The Irish Pharmacy Union wrote to the Minister to outline its grave concerns about the same issue on 28 February last. These concerns have not been addressed. The code of conduct of the Pharmaceutical Society of Ireland, which has been referred to as a way of protecting pharmacists, does not refer to conscientious objection or freedom of conscience, religion or belief. It is worth noting that Principle 4 of the current code of conduct was updated earlier this year. It was completely rewritten in a way that allows the patient to have the choice and removes the choice from the pharmacists. The pharmacists are being left in a situation where they do not have a conscientious objection under their own code. They have no protection under the legislation. The code was rewritten quite recently. They have articulated this in writing to the Minister.
The conscientious objection we have outlined is available in other jurisdictions. It should be available here. It is a reasonable request. It does not in any way dilute the effectiveness of the Minister's Bill from his point of view. It provides a way out to people who have a religious, humanitarian or moral conscientious objection. They should not be forced to partake in a practice about which they have such strong feelings of objection. It would be wrong to force them to do so. The Bill does not provide for conscientious objection. It relies on codes of conduct elsewhere. Conscientious objection is enshrined in the legislation in the UK and in New Zealand and it should be enshrined in this Bill as the only way to protect GPs. There are GPs who do not have a conscientious objection, and that is fine, but there are many GPs who do have a conscientious objection. There are hundreds of them up and down the country. They deserve the same respect. If we are talking about choice, then they should have a choice as well. One cannot level choice one day, and then the next day remove the choice. If one wants to purport that this is all about choice, one must accept that choice is a two-way street. If it is all about choice, so be it. That is great, but pharmacists, midwives and doctors must be given the same choice and respect. Choice must be reciprocated. That is what these amendments are about.
I welcome the Minister to the House. I have great respect for him. However, I want to make it quite clear that I do not welcome the legislation he has brought before us. I will try to be as brief as I can, given the hour of the night. Like other Senators, I have to travel a long distance to go home before returning here early in the morning. I certainly have no intention of keeping people here any longer than is necessary. This is the first time I have spoken on this Bill and it will probably be the last time I speak on it. I assure colleagues that I am conscientiously obstructing nobody. I am merely making my points in a democratic fashion in this House.
I just want to put it on the record that the legislation we have spent 15 hours discussing is about life and death. That is what I believe, and some of my colleagues in this House share that opinion. Over recent months, we have been subjected to obstruction in the legal sphere. I refer to the legislation that proposes to change how judges are appointed. It does not affect whether they live or die. I just want to put that on the record.
Like my colleague, Senator Brian Ó Domhnaill, I want to read an extract from a letter. The letter to which I refer was written by Dr. Fiona O'Hanlon, who is known to myself, to Senator Robbie Gallagher and to our colleague in the Lower House, Deputy Brendan Smith. Rather than going off on a tangent, I want to read as clearly as possible an edited section of the letter, which was published in a national newspaper.It really states what I want to say myself:
It is worth exploring the implications for doctors, nurses, [pharmacists] and all healthcare professionals if their rights of conscience are not respected in law. Every person has a right to freedom of conscience whereby they cannot be compelled to perform or facilitate an action which they believe to be morally wrong. The right to freedom of conscience acknowledges the fact that we are responsible for our free actions and their consequences inasmuch as we can foresee them. It also acknowledges the fact that we cannot disclaim responsibility for our free actions simply because we are obeying the will of another person.
Because freedom of conscience is respected in a democratic society, there is also the right to refuse to perform or participate in an action with which the person does not agree. Doctors, like everybody else, have the right to freedom of conscience. They are entitled to refuse to provide treatment which they consider to be morally wrong because to provide it would make the doctor responsible for the outcome. They are also entitled to refuse to facilitate access to that treatment because that too would mean the doctor shares responsibility.
In the case of abortion, many doctors have profoundly held convictions about the right to life of the unborn child and they have the right not to perform any procedure which would deliberately end the child's life. They also have the right not to facilitate abortion by giving information about, or contact details of, abortion providers.
Furthermore, doctors have the right to refuse to refer patients for abortion procedures. This is because, when a doctor refers a patient to another doctor for treatment, the referring doctor is agreeing that the treatment is necessary and in the patient's interest. This is usually because the referring doctor does not have the required specialist training and so has to request another doctor to look after the patient. In the case of abortion, however, the referring doctor may have the required training but still object in conscience. Referral for abortion would be asking another doctor to do something which the referring doctor believes to be totally wrong. It does not lessen the referring doctor's responsibility for the outcome and so goes against his or her freedom of conscience.
Abortion legislation must recognise that doctors have the right not to perform abortions and the right not to refer or provide information. Abortion legislation must also acknowledge the right of medical students and trainee doctors to refuse to participate in procedures which they do not intend to perform as professionals because of conscientious objection.
I want to briefly refer to Baroness Nuala O'Loan, the former Police Ombudsman for Northern Ireland, who is well known to all of us in this House. She recently gave a first reading of a piece of legislation in the House of Lords. Some of the detail that I have before me has already been alluded to by Senator Ó Domhnaill and I do not intend to repeat it. However, it is important to make three or four points from her contribution on that legislation. She points out that conscientious objection was first provided for in the United Kingdom in 1757. We celebrated the 100th anniversary of the end of the First World War a couple of months ago. During that war, 16,000 men were excused from conscription to military service on grounds of conscience. They included Quakers, who did not believe in fighting on religious grounds, and others. This is most interesting for some of my colleagues in this House who are most anxious to get this legislation through. Baroness O'Loan says: "Others, such as radical socialists, did so out of political principle." These were conscientious objections. I suggest that those radical socialists were every bit as well meaning in their conscientious objection as the radical socialists we have in this House and the Lower House.
I also want to refer to what Senator Bacik mentioned about the Council of Europe Parliamentary Assembly adoption of Resolution 1763. I think that is the one to which Senator Bacik referred.
This is the Parliamentary Assembly of the Council of Europe adoption of Resolution 1763, affirming the right of conscientious objection for medical professionals. The resolution is worth putting on the record. It states: "No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion." That is Resolution 1763, recently adopted by the Parliamentary Assembly of the Council of Europe.
We thank the Minister for listening to us. People who are fundamentally opposed to implementing procedures which will result in death should not have to beg for conscientious objection. It is a human right, the same as I believe it is a human right of a child to be born.
I welcome the Minister to the Chamber and thank him for his presence here. I will be brief in my contribution.
Following on from the comments of my colleagues, I think it is important that, when we discuss healthcare, we always keep in mind the person at the centre and in this case that is the young woman. We always have to keep that in mind.
Having said that, it is important that we genuinely acknowledge that some people will have an issue with conscientious objection. A number of GPs have been in contact with me, particularly about the phrasing of section 22(3) and the inclusion of the phrase "make such arrangements". There seems to be a degree of confusion there, I hope the Minister will agree, as to what exactly that means. It might be helpful and I would welcome it if the Minister could bring clarity to that. I understand there is some degree of urgency to push this through and everybody had 1 January 2019 in their sights as the date when they would like this to be up and running. It is important to put legislation through both Houses as quickly as possible but it is equally important that, when we do so, we tread carefully and try and bring as many people with it as we can. The phrase "make such arrangements" in section 22(3) deserves clarity that I hope the Minister will bring.
We have constantly been told that there are enough GPs to do the necessary work and, if that is the case, I wonder is there a need for this at all. Perhaps it is something that could be revisited at another stage. We have to be conscious that all GPs, throughout the country, do magnificent work and many of them are under severe pressure.Many patients in places like the place where I come from in rural Ireland have to queue up to get access to general practitioners. Senator Bacik talked about the Coombe Hospital having difficulties in having the service in place by 1 January. As I said earlier, it is important that we progress matters but it is important that we do so while ensuring that any step we take is sound.
At a time when we are talking about choice and equality it is unfortunate that this impasse has arisen. I hope that common sense will prevail and that we will strike a balance to accommodate the rights of all those who genuinely have reason for conscientious objection.
The Minister will know that I will be brief and to the point. I did not bring any extensive notes.
I agree with what has been said by Senators Wilson, Gallagher, Ó Domhnaill and Mullen on these matters. Conscientious objection is fundamental, as are freedom of conscience, freedom of expression and a free vote. We recognise this in so many different ways as politicians. It is important in our democracy that we follow through on it.
Like many others in the House I have had contact from doctors, pharmacists, nurses and midwives. I feel for them because they do not want to be locked in or to have to perform what may be required of them. No one should be forced or required by law to perform or assist in something that conflicts with his or her conscience. As I have said, I believe that much is basic. With me, it boils down to the point that I am totally opposed to any deliberate, wilful extinguishment of life in any make, shape or form. I will leave it at that.
I will try to be as brief as possible. I agree with Senator Gallagher's contention that the patient has to be at the centre of this. I will remark on other comments made by other Senators although I will not name them all.
There are 23 sections to the Bill and only one relates to conscientious objection and those who must provide care to women in these circumstances. I staunchly defend the right of any medical, nursing, pharmacy or other professional who has a conscientious objection to performing a termination. That is their right and it is enshrined in the Bill. It is clear. Other Senators have talked about recent changes in pharmacy. I have the relevant changes before me. Point 5 of principle 4 on page 9 of the proposed code of conduct makes provision for conscientious objection. It is clear. The Bill provides for it too.
On Second Stage I mentioned my concern about who practises in this regard. On the one hand, the Bill makes it easier for a doctor in a practice who conscientiously objects to refer the matter to someone else in the practice. Equally, we have to guard against bullying of junior doctors by senior doctors, who might have a different view. I am very much opposed to that.
I will defend absolutely the right of medical and nursing professionals and others to be conscientious objectors. I see nothing in the Bill that does not enshrine or protect that. At the same time, the Bill is about patients and women in trouble who wish to have a termination and who are entitled to it. We have had a referendum on the matter. Women cannot be obstructed because people refuse to give them information on others who are prepared to act or help in the practice or in the town or village in question. A nurse's letter was read out. She acknowledged that in an emergency she would act. Nowhere else in the Bill is there provision for an onus on her to do otherwise or to prevent her from being a conscientious objector or obliging her to act.
People have views but the reality is that the Bill is clear. I commend the Minister on the Bill. Certainly, I will not support the amendments.
I thank the Senators for their contributions. A total of six amendments to this section are grouped. I too am a defender of conscientious objection. I believe in it. People have the right to conscientiously object. It is a long-standing principle in medicine and has long been enshrined in the way we run our health service.
Senator Bacik and, to some degree, Senator Gallagher both hit the nail on the head when they talked about balance. It is about balancing the right of medical professionals to conscientiously object from this or other services in respect of which they have a conscience issue with the right of a woman to access a service that will be a legal part of the Irish public health service from January. What we are trying to do here is attain balance. I believe we have achieved that balance because section 22 states that where a medical practitioner, nurse or midwife has a conscientious objection, he or she shall not be obliged to carry out or to participate in carrying out a termination of pregnancy. The provisions set out are in line with section 49 of the Medical Council guide for professional conduct and ethics for registered medical practitioners. The provision obliges doctors to enable patients to transfer to another doctor for treatment in cases of conscientious objection.
Senator Gallagher asked the reasonable question of what that means and whether I could provide clarity. I am pleased to do so and I did so in the other House as well. It is described on page 35 of the Medical Council guidelines. Section 49 of the document relates to conscientious objection and states:
If you hold a conscientious objection to a treatment, you must:
- inform the patient that they have a right to seek treatment from another doctor; and
- give the patient enough information to enable them to transfer to another doctor to get the treatment they want.
I am keen to make another point. No one wants a situation whereby doctors who are conscientiously objecting are coming into contact with women looking for a health service. That is not desirable for anyone. It is not desirable for the doctor and it is certainly not desirable for the woman. We have taken several measures. In particular we have provided for the 24-7 helpline. The first port of call for many women in a crisis pregnancy will be to pick up the telephone. Later in 2019 we will have an instant message service. Women will be able to check out websites like www.myoptions.ie, which will go live when this law passes and is enacted. Women will be able to receive all of the information about all the services available to them in a crisis pregnancy that are legal in Ireland, including termination, in a non-directional manner. The helpline will be able to signpost a woman to where those services are available. This should minimise the situations that no one wants to see, such as conscientiously objecting medical professionals coming into contact with women. It is not desirable and I have no wish to see women going from doctor to doctor in an effort to seek help, especially women who, by virtue of being there, are in a crisis pregnancy situation.
Balance could completely go out the window and the situation could become completely unbalanced if a woman presents in a crisis – it could be a difficult and traumatic situation for the woman – and is simply shown the door without being at least given the information to access the service. That is what transfer of care means. Everyone has acknowledged that it would be different in an emergency situation or in a situation where a woman is not in a position to transfer her care – perhaps she may be unconscious. The law is clear on this point. The Medical Council guidelines have been clear on it too. I am clear on this point. We need to avoid over-egging what is being done in the Bill. The bar is low here. We are simply asking that women are actually given information to access legal services in the country, no more and no less. Similarly, the Nursing and Midwifery Board of Ireland code of professional conduct and ethics in 2014 states:
If you have a conscientious objection based on religious or moral beliefs which is relevant to your professional practice, you must tell your employer and, if appropriate, tell the patient as soon as you can. If you cannot meet the patient’s needs because of this objection, you must talk with your employer and, if appropriate, talk to the patient about other care arrangements. Even if you have a conscientious objection, you must provide care to a patient in an emergency where there is a risk to the patient’s life.
Others have alluded to the fact that in the Dáil I brought forward amendments to ensure it was absolutely clear that student nurses and midwives would have the right to conscientiously object as well. Moreover, section 13 provides a specific duty on a treating physician who refuses certification to inform the woman that she has a right to apply for a formal review of this decision.
I have already mentioned that I have directed the HSE to put in place a helpline to help women navigate the services for termination of pregnancy. It is intended that medical practitioners will voluntarily consent to have their names released to women seeking the service so that women ringing the helpline will be assisted in contacting medical practitioners who do not have a conscientious objection to termination of pregnancy.
As I have already said, the Bill and existing medical guidelines make it clear that conscientious objection cannot be invoked in an emergency situation where there is a risk to a pregnant woman's life or health and where there is an immediate risk in that regard.As has been stated by some colleagues, the current code of conduct for pharmacists states that pharmacists must, "Ensure that in instances where they are unable to provide prescribed medicines or pharmacy services to a patient they must take reasonable action to ensure these medicines/services are provided and the patient's care is not jeopardised." The council of the Pharmaceutical Society of Ireland, PSI, which is the regulator for pharmacists in this country, has approved a new code of conduct for pharmacists. Part five of principle four on page nine of the proposed code of conduct makes provision for conscientious objection subject to a referral of a patient to an alternative provider if a pharmacist cannot provide a professional service or a medicinal product so that patient care is not jeopardised or compromised. A footnote to principle four also makes a specific reference to a pharmacist transferring the care of a pregnant woman availing of services in the termination of pregnancy, so it has already taken action as the pharmacy regulator in this country.
The approved code of conduct is required to be submitted by the PSI to the Competition and Consumer Protection Commission for approval before being submitted to the Department for ministerial approval. Conscientious objection is in place. It is about getting the balance right between making sure women can access legal services and providing for medical practitioners who do not wish to partake and conscientiously object. It is also about making those rights respect each other. We have taken a number of measures outside the legislation in terms of the roll-out of services, most particularly the 24-7 helpline, to support women and medical practitioners in this new reality.
I did not want to speak but given my role as nurse and the role of Senator Reilly, we are very well aware that we are catered for in terms of conscientious objection. It is there and is respected. The 24-7 helpline will contain a list of GPs to whom women can go because they will be willing to help them. Will it be the same for pharmacists? I remember the hullabaloo when contraception was legalised in this country. To this day, there are some pharmacists who refuse to dispense prescribed medication such as the contraceptive pill. Will a list of pharmacists be provided by the 24-7 helpline because it would make a woman's journey much easier and get them close to the GP they are visiting? I know we talked about nurse practitioners and their ability to carry out these procedures and prescribe under 12 weeks. Perhaps that is a discussion for another time in a review or an amendment later on.
As is envisaged in this legislation, the GP will also dispense the medication, thereby lessening another journey or trip a woman may need to make. With regard to nurse practitioners, the law as currently drafted does not allow for that but the operation of the Act will be reviewed in three years.
The Minister presents it as a reasonable balance but it is not at all reassuring. How could it be when there was so little consultation? The Minister broke the news on radio to GPs that his abortion regime would be GP-led. Before his announcement, he never consulted rank-and-file GPs around the country about turning their surgeries into abortion clinics and forcing them to become facilitators of abortion through referral. Since his initial announcement, he has refused point blank to engage with ordinary GPs and is well aware that more than 640 GPs have signed a petition raising very serious concerns about his proposal and that nurses, midwives and pharmacists have done likewise. I find it extraordinary that the Minister would not afford these hard-working healthcare workers even one minute of his time, yet from 1 January, any GP who refuses to facilitate abortions in line with the Minister's extreme law runs the risk of being struck off the medical register and losing his or her job. There really are no words to describe this travesty.
I know a doctor who felt under intense pressure to abort her daughter when working in England seven years ago. She has first-hand experience of what a conveyer belt abortion system results in - rushed decisions followed by immense regret - but her personal experience counts for nothing under the Minister's new law. From 1 January, she will have to get in line with his abortion law or face being struck off the medical register. I can assure the Minister that she has no intention of being coerced into going against her conscience and there are hundreds of healthcare workers just like her. They are not going to surrender their clinical judgement and lifetime of experience in assisting women with unexpected pregnancies in the sensitive, compassionate and non-judgemental way they do. They feel they are being bullied by this Government and the Minister to do something that goes against every fibre of their being. That should be enough to give the Minister concern, because they are right. They are being bullied. Calling doctors, nurses and midwives rogue practitioners simply because they disagree with the Minister and want to practise evidence-based medicine is outrageous and wrong. Forcing decent, hard-working and conscientious-----
I do not want to go down this road again. The Minister has replied so, obviously, the Minister is not listening to Senator Mullen or Senator Mullen is not listening to the Minister because I am hearing totally different views on this issue of conscientious objection. I would like to facilitate and be fair to everyone. Nobody is withdrawing. This amendment will be put to a vote. I will insist on it. We will let Senator Mullen ramble on for a while but he is making very serious accusations against a Minister on an issue where the Minister believes he is correct. The Senator may disagree but we cannot allow this to ramble on. We have already spent one hour and 14 minutes on this section. I can be fair to the House as well. I will let Senator Mullen continue but I ask him to understand the position I am in. I must be fair to both sides.
I understand the Cathaoirleach's position, but forcing decent, hard-working and conscientious healthcare workers to do something they find morally troubling, even abhorrent, crosses a line. They have received their own legal advice and they know the freedom of conscience protections the Minister claims are in the Bill offer no meaningful safeguards. The Minister is putting many healthcare workers through hell through his refusal to listen to them. I dearly wish that he would amend his Bill, but if he does not, it will not end there. Peacefully but persistently, people will stand united against the injustice of what the Minister is trying to impose. I believe it will give rise to a civil rights and civil disobedience movement that this country has not seen in a long time because people will tolerate a lot of things but they will not tolerate their freedom to object conscientiously being trampled on. I do not think people will tolerate their doctors, who give them so much care, and other medical professionals being bullied in this way.
The Minister says that Medical Council guidelines are going to change in line with the legislation, and we know they will. The same is true of the PSI's guidelines and all relevant guidelines because the law will shape what happens in future. The power of the State is behind the provision of abortion, so the Minister does not need to bully medical personnel to become a cog in the wheel, as they see it, by being required to refer or even participate more directly - not under pain of being punished by this Bill but of not being protected by this Bill from punishment by their employer. That is the point the Minister has either not grasped or has not been willing to engage with. Those conscientious objectors should not be seen as the awkward squad, nuisance people or doctors who would show women the door. They are caring professionals who, for whatever reason, be it a faith-based or philosophical reason or just their clinical judgement, believe they have a duty in justice to the unborn child as well as the mother before them. That is what actuates their concern. Asking them to be involved in transferring for a care they do not believe is care, for a procedure they do not believe is compassionate because it excludes one of the two parties they see before them albeit only one is immediately visible, is the injustice.
It is so unfair because, as I said, the entire power of the State is behind the Minister's abortion proposal. He is going to spend an enormous amount of taxpayers' money making abortion available, including through the use of advertising telling people how they can access this service. He does not need to force doctors, midwives or anybody else to pass on information they believe will be fatal to the well-being of another human being.All rights are of course limited and even the right to conscientious objection is limited where what is at issue is necessary medical treatment. I would not support the right of any person to object in conscience to bona fide treatment needed by another person. However, the whole point of the Minister's legislation is that it includes an abortion regime that is not connected with medicine, as under section 12 no reason is required to be given. I do not understand why the Minister wants to turn this-----
I am listening to the Senator's comments very carefully and I have listened to the Minister. I must be a referee and impartial as Cathaoirleach. The Minister disagrees with the Senator and the Senator does not agree with the Minister. I am not allowing this to drag on. We are nearly one hour and 15 minutes on the matter. The Senator's speech is more like a Second Stage speech. He has made his points cogently and as far as I understand, the Minister is unlikely to accept his opinion. There will be a vote on it and it is the way to resolve the matter.
I am coming to a conclusion. I am grateful to the Cathaoirleach. As I said yesterday, I want to say what needs to be said, no more and no less, before addressing the points that are raised. That is appropriate on Committee Stage. The time we have spent on this matter is as nothing to the time I have spent on the phone and in meetings with good and ethically minded professionals who are terrified of what is in this Bill and the implication for their ability to give compassionate care. I have a duty, as do the other Senators presenting these amendments, to be faithful to those decent professionals. These are not the awkward squad, as I mentioned, but rather people who want to keep best medical traditions going where they see those traditions as being attacked by this Bill. I was urging the Minister not to want to turn this into a war between those who agree with abortion and those who disagree with it.
Senator Ó Domhnaill referred to the case in Norway and it was very instructive that the Supreme Court of Norway found just weeks ago that Dr. Katarzyna Jachimowicz had acted within her rights when refusing to follow through with a medical procedure with which she had a moral objection. The court held that health clinics and hospitals could not fire staff who asserted such objections. It is interesting as this law will not require the firing of staff but it will allow it.
That is the wrong and injustice in this. Senator Wilson referred to the resolution of the Parliamentary Assembly of the Council of Europe in 2010. I know about it because I was there and involved in the debate. I believe he was referring to the debate on what was known as the McCafferty report. It started as an attack on conscientious objection. Much of what we have heard in recent months claims that the right to conscientious objection inhibits the delivery of care but the report in question turned into a ringing endorsement of people's right to object in conscience to procedures they believed unethical. The buzz phrase in this area is "reasonable accommodation". When the power of the State is behind the provision of abortion and the Minister has access to the purse strings - essentially being able to advertise and provide information about the services that will now, tragically, be legal - the Minister can afford to be much more generous than he is being in allowing people to go their own way peacefully and respectfully.
That is not, as I think the Taoiseach said, giving the cold shoulder to people. It is the continuation of a tradition of caring medicine that has the idea that two people are being cared for. It is about asking a practitioner to refer a patient to somebody who will take away the innocent life that is growing within the patient, and it asks too much of a caring professional. In the end, it is not for the Minister, Senator Reilly or anybody else to tell a person what ought or what ought not be in conflict with his or her conscience. That is with the exception of where there is bona fide medical care to which a person is entitled, as conscientious objection cannot prevail over that. Where we speak of elective procedures, it is absolutely wrong and unjust to say to a person that he or she does not have to carry out the abortion, at least not under this law, but it is not the case if the health service or professional organisation requires that person to do so. It is tough if that person does not like or want to be complicit in facilitating the injustice by passing on information about the service.
I know of one case where a person resigned not because that person did not want to do something against that person's conscience but rather there was a reluctance to delegate it to another professional. That person was willing to take a step down in the organisation, allowing another worker to do the delegation. The person was not asked to do the service to which there was a conscientious objection. It was the person's sensitive conscience and that person did not want to be a cog in the wheel. The trouble with the Government's Bill is that this has not been thought through, at best, and at worst it is pretending there is protection for freedom of conscience. It is only there in fig leaf form for the two reasons I have mentioned. It does not prevent a person from being disciplined-----
This does not protect a person from being sanctioned. The legislation does not provide that a person will be sanctioned but it does not protect the person. Senator Reilly mentioned the less powerful people in an organisation, and funnily enough it is those who will come under pressure.
May I finish the sentence, as I was heckled? The first problem is the legislation does not protect the person against being sanctioned from above. The second problem is the requirement for the person to be a cog in a wheel. That is not fair and it will be resisted, peacefully but persistently in future, regardless of whether the amendment is accepted.
This has gone on for an hour and a half. I have spoken before about anybody who wants to debate this and have two bites of the cherry over an hour and a half and two hours before reintroducing an amendment on Report Stage. I am putting the question.
I defer to the Cathaoirleach. All I can say is I want people to have an opportunity to consider what was said tonight. People are tired. Many people and more than just the usual suspects spoke in favour of this amendment. There will be an amendment on Report Stage.
Catherine Ardagh, Ivana Bacik, Frances Black, Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Martin Conway, Gerard Craughwell, Maire Devine, John Dolan, Frank Feighan, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Anthony Lawlor, Pádraig MacLochlainn, Gabrielle McFadden, Catherine Noone, Marie Louise O'Donnell, Grace O'Sullivan, Niall Ó Donnghaile, James Reilly, Neale Richmond, Fintan Warfield.
I made a ruling earlier. The House has to agree to a withdrawal. Two Senators did not wish to do so. I said that if someone debates an amendment for an hour or an hour and a half and then proposes to withdraw the amendment, it is like saying we will have a second bite at the cherry on Report Stage. By moving and withdrawing the amendment now the Senator will certainly be able to re-enter it.
Thank you, a Chathaoirligh. On a point of order, and I thank you for your indulgence, but I indicated that I hoped to table an amendment on Report Stage regarding the previous matter to take account of the discussion and other changes that were not discussed during the proceedings, for example, the need to include students. Am I in a position to table that amendment?
In fairness, I said at least two hours ago that if someone debates an issue for an hour, an hour and a half or two hours and then decides not to call a vote at this Stage but to withdraw the amendment and re-enter it, it means that he or she is getting a second bite at the cherry. Before the vote was taken some Members on the Government side said they were anxious that it should not be withdrawn but voted on. On this issue, Senator Mullen has said he wants to move and withdraw the amendment. Is that agreed?
Most Members have agreed to the moving and withdrawal of the amendment. There is at least one objection to the withdrawal so I have no choice but to put the question that leave to given to withdraw the amendment. That will be voted on.
To be helpful, and in the interests of decorum and fairness, I am not dragging this down into the gutter. If Senator Mullen, or any other Senator, wants to withdraw an amendment and consider resubmitting it on Report Stage, he should be entitled to do so. Otherwise we can go down the road of going through every amendment that was debated in this House today, see what the time was-----
Catherine Ardagh, Colm Burke, Paddy Burke, Ray Butler, Maria Byrne, Paul Coghlan, Martin Conway, Gerard Craughwell, John Dolan, Frank Feighan, Alice Mary Higgins, Gerry Horkan, Rónán Mullen, Marie Louise O'Donnell, John O'Mahony, Brian Ó Domhnaill, Diarmuid Wilson.
It is a procedural issue. Each time an amendment is moved and withdrawn the House has to agree. Most Members go along with it, but the point I made earlier after a complaint was made to me was that if a Senator debated a matter for two hours, he or she could say we could come back on the Friday or whenever else and debate it again for two hours. Others moved amendments today and within minutes said they would let the Minister reflect on them. Therefore, it is just a question of principle. Any Member can object to the withdrawal of an amendment.
On a point of information to help the House, Senator Mullen's comments are a little disingenuous. It is the prerogative of any Member to object to the withdrawal and resubmitting of amendments. To be fair, in the walk-through votes, Members reflected on the overarching principle, in respect of which we should be gracious.
On a point of order - this might be helpful - this is the first time I can recall that this has happened in this House. Potentially it could have set a very dangerous precedent for democracy in this House, particularly for the Opposition, including Independents and small Opposition group Members.
Colleagues who table amendments should also realise the House has to agree that they be withdrawn and that this will occur again. I warned one Senator earlier that this might happen, but I was ignored. When it happened, it did not come as a surprise to me.
I move amendment No. 51:
In page 51, line 25, to delete "2011." and substitute the following:"2011;
"pharmacist" means a person whose name is for the time being registered in the register of pharmacists established under section 13 of the Pharmacy Act 2007.".
I move amendment No. 52:
In page 15, between lines 25 and 26, to insert the following:“ “medical practitioner” means a medical practitioner who is for the time being registered in the register or a person who is studying or training to qualify or work as a medical practitioner.”.
I am anxious to ensure this issue will be deemed to have arisen from proceedings on Committee Stage and that I will be in a position to resubmit the amendment.
Catherine Ardagh, Ivana Bacik, Frances Black, Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Rose Conway Walsh, Martin Conway, Gerard Craughwell, Maire Devine, John Dolan, Frank Feighan, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Anthony Lawlor, Pádraig MacLochlainn, Gabrielle McFadden, Catherine Noone, Marie Louise O'Donnell, Grace O'Sullivan, Niall Ó Donnghaile, James Reilly, Neale Richmond, Fintan Warfield.
I move amendment No. 53:
In page 15, between lines 25 and 26, to insert the following:
“Dignified Disposal of Foetal Remains
23. (1) The bodily remains of a foetus who has been the subject of a termination of pregnancy carried out by surgical means shall be disposed of only by way of:
(a) burial in a burial ground for the purposes of section 44 of the Local Government (Sanitary Services) Act 1948; or
(b) cremation carried out in a crematorium, being a building fitted with appliances for the burning of human remains which is lawfully used for that purpose as its primary function.
(2) The Minister shall make regulations to provide for the dignified disposal in accordance with subsection (1) of the bodily remains of a foetus who has been the subject of a termination of pregnancy carried out by surgical means.
(3) The woman who has availed of a termination of pregnancy carried out by surgical means shall be entitled to choose the manner of the disposal of the bodily remains of the foetus subject to subsection (1) and regulations made by the Minister under subsection (2) and the said regulations shall provide for the manner of disposal in the event that no such choice is made.
(4) A person who disposes of the bodily remains of a foetus who has been the subject of a termination of pregnancy carried out by surgical means otherwise than in accordance with subsection (1) shall be guilty of an offence.
(5) A person who disposes of the bodily remains of a foetus who has been the subject of a termination of pregnancy carried out by surgical means otherwise than in accordance with regulations made by the Minister pursuant to subsection (2) shall be guilty of an offence.
(6) A person who is guilty of an offence under subsection (4) or subsection (5) shall be liable on summary conviction to a class A fine.
(7) A person who sells or offers to sell a foetus or the bodily remains or any part thereof of a foetus who has been the subject of a termination of pregnancy shall be guilty of an offence.
(8) A person who carries out any experiment or procedure not authorised by this Act on the bodily remains of a foetus or any part thereof who has been the subject of a termination of pregnancy shall be guilty of an offence.
(9) A person who is guilty of an offence under subsection (7) or subsection (8) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.
(10) In this section “termination of pregnancy carried out by surgical means” means a termination of pregnancy which involves carrying out a procedure other than or in addition to the administration or self-administration of a drug or drugs to the pregnant woman in order to end the life of a foetus.
(11) Subsections (4), (5), (7) and (8) shall not apply to the woman who has availed of the termination of pregnancy concerned.”.
This amendment was tabled on Committee Stage in the Dáil and there was commentary around it suggesting that the amendment was aimed at early pregnancy. That never was, and is not, the aim of this amendment. It is aimed at the dignified disposal of the baby's body after surgical abortion. The amendment gives 100% clarity to that fact and to the fact that no criminal offence attaches to the mother of the baby.The aim of this amendment is to ensure that the remains of the baby are disposed of in an appropriate way, either via cremation or burial. The amendment certifies that the mother can decide how the disposal happens, if she so wishes. It does not create an imperative in that regard. It also seeks to ensure that the disrespect that has been shown to foetal remains in other countries will not happen here. We know from reports from the United States that there was an industry built around the sale of body parts of aborted babies. While this amendment is unpalatable, the reality of life is that, if we are not clear in prohibiting the sale of body parts for research, experimentation or whatever else, such practices can arise. I appeal for the necessary clarity on the question of how the remains of babies will be properly disposed of. This is an important issue.
The Seanad has been discussing humanity a great deal in the context of our amendments on seeking pain relief for a baby if there is any chance at all that he or she will feel pain and on seeking that babies born alive are given due care. This amendment is seeking the same thing - simple humanity towards the littlest members of our society. The Irish people voted to repeal the eighth amendment. It is fair to say that they did not vote for a baby to suffer and die in pain, be left to die after a failed abortion or to have his or her remains disposed of in a disrespectful manner.
The woman who has had the abortion is entitled to decide whether burial or cremation is availed of, though she need not feel any pressure towards participating in that decision. The proposal seeks to prevent such terrible practices as those that arose in the US and the UK. See the final report of the Select Investigative Panel of the Energy and Commerce Committee of the US House of Representatives on 30 December 2016, which outlines some of that. I will not go into the detail now. In the US, an industry has effectively grown up around the sale of organs and other human tissue from aborted babies, a practice that was only uncovered following an undercover investigation. For more information on that activity, the Minister can read the final report. Similarly, poor practices in the disposal of babies' remains in Britain developed in the absence of strict legislation prohibiting or outlawing such practices. The bodies of many aborted and miscarried babies were incinerated as clinical waste. Some were being used to heat hospitals and ended up in municipal waste.
The Minister referred to this amendment on Committee Stage in the Dáil as "distasteful", but there are many provisions in the Bill that are highly distasteful to us. The whole Bill, which takes away rights from an entire section of society, is distasteful. What we are trying to achieve is dignity for the baby. We believe that this amendment is balanced between the needs and desires of the mother and the rights of the child to dignity in death. The UK Human Tissue Authority issued guidance on this topic in 2015 after the The Daily Telegraphexposed the story of foetal remains being used to heat hospitals. Those guidelines say that women should be made aware of options for disposal and given every support in a sensitive manner to come to a decision.
As Members may know, it was reported in 2000 that Holles Street hospital had admitted that it may have incinerated the remains of a baby whose mother had been led to believe her child would be buried in Glasnevin. It was also reported that it had taken some years for this admission to be made. Let us get this right now by incorporating this amendment in primary law. There is an exception made in the amendment for experimentation, for bona fide and lawful medical assessment or treatment of the woman, as it should be.
Under the amendment, the primary responsibility is on the hospital or setting where the abortion takes place, not on the woman. It is important to note that. This is a balanced and reasoned amendment that fits with other amendments and I hope that the Minister will look favourably upon it.
Almost since the dawn of human civilisation, the remains of deceased members of society have been treated with dignity and buried or cremated in a dignified and respectful fashion. We see that in how our ancestors on this island buried their dead in the Neolithic Age and Bronze Age periods. We see it in the works of the great writers of the Greek and Roman civilisations, for example, Sophocles, where the desecration or disrespect of dead bodies, such as dead soldiers on a battlefield, was viewed as the harshest form of humiliation and denigration. That respect for the remains of our deceased comes right up to the present day, with organised burial and cremation of remains taking place in this city since Victorian times and with strict laws continuing to govern such practices.
As someone who does not want to see the introduction of abortion into Ireland, I am enough of a realist to know that, when the service is introduced, there will be foetal remains left as a result of the abortion procedures. That is an inevitability. In my eyes and the eyes of a great many people, possibly the majority and certainly a very large minority, these are the remains of human beings who lived, if even for a short time and only in the womb. They are entitled, therefore, as human beings to the same basic level of dignity as any other human being. This amendment seeks to guarantee that.
It is, of course, the case that, sadly, pregnancies end through miscarriage. It is, of course, the case that it is not always possible to arrange for the burial of the child that is lost in that situation. It is, of course, the case that, in the past, we did not have sufficient respect for babies who died in pregnancy, were stillborn and so on. We do not need to go into the tragic history of that. However, "natural fallacy" is the term that is used to describe the philosophical flaw in the argument that, because miscarriages happen every other day, somehow the little creatures who are miscarried are less valuable and that it might be legitimate, therefore, to procure or bring about that miscarriage deliberately. When one thinks about it, that argument is tantamount to saying that, in countries where there is a higher infant mortality rate, as there certainly is in many countries in the developing world, somehow the right to life of such children is less great.
The amendment places a duty on hospitals and the HSE to arrange for the dignified disposal of remains, where a surgical abortion takes place, by cremation or burial. As Senator Ó Domhnaill has made clear, and as I also want to make clear, this amendment does not compel women to have any responsibility for this unless they expressly want to. We have seen a major controversy in recent years in respect of the Tuam mother and baby home and the allegations about the improper treatment and burial there of the remains of innocent infants. I do not see how anyone who is shocked and offended by the issue could not support this amendment, which would prevent any repeat of such practices as a result of the introduction of surgical abortion.
We have seen reports of grotesque treatment of foetal remains abroad. I do not propose to go into the detail of how Planned Parenthood, the organisation with which the Irish Family Planning Association, IFPA, is affiliated, was found to have dealt with foetal remains. Colleagues will be familiar with that by now. It shows what happens when strict guidelines are not in place and abortion becomes a money-making industry, as it is in the United States and, perhaps, many other places.
There was also the exposure - it has been referenced, so I will not go into it now - of shocking practices in the treatment and use of foetal remains in hospitals in the UK.Colleagues may be familiar with the case. They are remains of human beings whose lives were cut short because the law of the land allowed them to be. Surely, as a society that strives to be decent, our laws should at least allow for some basic human decency in these situations and the remains of those children should be disposed of carefully and with respect.
I draw the attention of colleagues to one or two particular elements of the proposed new section 23. Subsection (7) reads: "A person who sells or offers to sell a foetus or the bodily remains or any part thereof of a foetus who has been the subject of a termination of pregnancy shall be guilty of an offence". It seems strange that we even have to think about such issues, yet they are realities in our world. For example, Planned Parenthood has been implicated in such unacceptable and very cruel practices and chilling commentary on the sale and transfer of body parts of aborted foetuses. It does not do one good to listen to some of the conversations that took place involving some of the people from that organisation. I draw Members' attention to an article which shows how quickly things move once they gather momentum. It appeared in TheIrish timeson 14 November and was headed, "Is it right to use aborted fetal tissue for research?" It was written by George Winter. It is posed as a question, but it is very clear that the author regards it as absolutely right and proper that aborted fetal tissue can be used for research. He refers to the repeal vote as overturning a manifest injustice and describes those who oppose it as "anti-choice". He raises the issue of what happens when one can point to scientific or therapeutic benefits which flow from the medical or scientific exploitation of foetal body parts. The question of eating the fruit of the poisoned tree is raised. The more abortion becomes accepted practice and the more advances in science there are the more these issues will arise. Of course, there is a scientific benefit to be derived from research and we all want to see medical cures.
I am speaking to subsection (7) in the amendment which would prohibit the sale of body parts. I was just about to refer to what Mr. Winter referred to as the case of Professor Leonard Hayflick and how at a certain point in 1962, following a legal abortion at a Swedish hospital, the lungs from a female foetus were flown from Stockholm to his laboratory. From them, he established the strain that led to the provision of licensed human virus vaccines. Of course, people are idealistic and want to find cures. However, when we allow primary injustices to happen such as the abortion of unborn children, we should not be surprised when a demand for further instrumentalisation emerges. I submit and hope colleagues will agree that we must resist the temptation to eat the fruit of the poisoned tree and refuse to use, for the benefit of other humans, the results of the injustice perpetrated on the unborn via abortion. Of course, if someone does not believe it is an injustice, I can understand why he or she might not have a problem with the derivation of other benefits from the death of a child. However, there are many, including many "Yes" voters, who draw the line at further indignity being perpetrated on the unborn for scientific or other purposes. It is in that context that the issue of the sale of body parts arises. The amendment would specifically exclude the sale or the offer to sell a foetus or the bodily remains of any part thereof. Subsection (8) reads: "A person who carries out any experiment or procedure not authorised by this Act on the bodily remains of a foetus or any part thereof who has been the subject of a termination of pregnancy shall be guilty of an offence".
They are just two of the ten subsections proposed. I do not propose to take up further time by going through the rest of the subsections, but the two I have outlined are particularly important because they go to the heart of why the amendment is necessary. They are proposed for the purpose of showing a modicum of human dignity and mercy, albeit in death, to the memory of the child who was not let live but who, nonetheless, is entitled to some respect as a member of the human community for however short a time it is.
Even at this late hour I have to say the phrase "who was not let live" is gravely offensive to the parents of children with fatal foetal abnormalities, women whose lives have been at risk which, of course, is one of the grounds for abortion the Senator opposes and women who are facing a serious risk of harm to their health. The circumstances to which the Senator has referred include these much wanted pregnancies. He has excluded early pregnancy which was not excluded in other similar amendments in Dáil Éireann. I appreciate that it is excluded in the amendments proposed. We are talking about much wanted pregnancies and babies whose parents have been told that they will not live outside the womb, or situations where a woman finds herself pregnant, only to be told that if she continues with the pregnancy, she could die or face serious risk of harm to her health. These are the grounds about which we are talking. Referring to these children as babies who were "not let live" does not in any way comprehend the grief felt by the woman and her partner. We are not going to agree on this, but I really do not believe we need to legislate to tell those parents how to grieve or care for the remains of their baby with dignity. I really do not think they need the Senator or me to tell them how to do that. The Protection of Life During Pregnancy Act 2013 is the only law on the Statute Book in this area.
Speaking of decency, I am aware of what happens with foetal remains. I have heard about the remains of babies being returned by couriers, delivered by the postman, put into shoe boxes and transferred home by ferry in the boot of a car. I do not know where decency lies in that situation. I am not in a position to accept the amendment for the very same reasons I discussed at some length in Dáil Éireann. Hospitals have standard procedures in place to deal sensitively with parents in situations which involve stillbirth and miscarriage. Those procedures will apply in these cases also. Suggesting or implying anything to the contrary is incorrect, but the Senator will tell me that it is the reality. I have every confidence that hospitals have standard procedures in place to deal sensitively with parents who find themselves in such situations and that they will do so. The picture the Senator is painting is one to which I cannot relate.
It is quite remarkable that the Minister who is bringing about the tragic disrespect for human life encompassed by abortion finds offensive referring to abortion as a situation where a child is not let live. I consider it to be a euphemistic description of what happens in cases of abortion. I have questioned the honesty of the approach taken by the Government and also question whether it is honest of the Minister in talking about this issue to immediately refer to the tragic situation where parents receive a tragic diagnosis of a foetal anomaly or hear that their child will have a life limiting disability.Let us just look briefly at what the Minister is doing here. He is trying to cast odium on the proponents of this amendment by portraying it as unsympathetic to the plight of those people. Here is where the lack of honesty is. The Minister's legislation for abortion comprehends much more than those tragic situations. It includes abortion where there is not a threat to life. Under a section 12 abortion, some of which are surgical, some of those parts would potentially be sought for scientific benefit. It is not honest of the Minister to characterise the amendment as somehow being cavalier about the feelings of families who chose abortion. I wish they had not done so. It is wrong for the Minister to pretend it is somehow wrong, inaccurate or cruel to refer to unborn children as not having been allowed to live. I would have thought the Minister would have a basic modicum of sympathy for unborn children to at least allow them a truthful description of what has happened to them. Whether the Minister ascribes blame to the parents in that situation or not is an entirely different question. The Minister knows that well as Minister for Health. He has much more resources available to him than I do.
I sympathise with people who have abortions, regardless of whether or not they have received a diagnosis of a so-called fatal foetal abnormality or a life-limiting condition, which I prefer to refer to it as. It is not honest to immediately default to those narrow grounds of abortion. I prefer the term life-limiting condition because the medical profession said the term "fatal foetal abnormality" is impossible to define correctly, as the Minister may recall, lest anybody seek to accuse me of lacking respect for people in that situation.
The Minister does a serious injustice to the truth quite apart from the injustice to those who have been aborted or those who have been hurt by their abortion experience when he immediately moves into the political zone of mischaracterising what I am talking about. There are a wide range of potential situations where children's lives will be ended under the Minister's legislation and not only in situations of what the Minister describes as the really wanted pregnancies. Sadly there will be pregnancies where abortion is sought where it is not claimed the child is wanted. We are not getting into the blame game with this amendment because we are not imposing any obligation on the mother or parents of the baby in this situation. The Minister needs to get honest and get back to what this amendment is about. It is about showing respect for the dead where the death occurs as the result of a surgical abortion. It is about the responsibility that the amendment would place not on the women involved but on the hospitals that have the resources and ability to see that some kind of dignified arrangement takes place. The Minister cannot keep defaulting to emotive language to try to airbrush away the relevance of these amendments. It does a serious disservice and injustice to everybody involved.
Amendment No. 54 is in the names of Senators Ruane, Kelleher, Higgins, Black and Grace O'Sullivan. Amendments Nos. 54 to 63, inclusive, are related. Amendments Nos. 55 and 56 are physical alternatives to amendment No. 54. Amendments Nos. 60 and 61 are physical alternatives to amendment No. 59. Amendment No. 61 is a physical alternative to amendment No. 60. Amendments Nos. 54 to 63, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 54:
In page 15, lines 27 to 35, to delete all words from and including “(1) It” in line 27 down to and including line 35 and substitute the following:“(1) It shall be an offence for a person to intentionally or recklessly, by any means whatsoever, cause injury or death to a pregnant woman such as to cause the termination of her pregnancy.
(2) It shall be an offence for a person to intentionally or recklessly administer any drug, substance, instrument, apparatus or other thing to a pregnant woman without her consent such as to cause the termination of her pregnancy.”.
I intend to move amendments Nos. 54, 59, 60, 62 and 63 in the names of Senators Ruane, Kelleher, Higgins, myself and quite a number of other Senators.
Consistently throughout the debate, one of us has been moving these jointly proposed amendments. They all seek to address our concerns around the criminalisation of those who may be supportive of, or of assistance to, a woman who seeks an abortion. We very much welcome the fact the woman herself is not criminalised and that is clear in section 23 but we do have concerns which we raised on Second Stage. At this point I will withdraw our amendments with a view to raising them again and discussing our concerns.
I move amendment No. 55:
In page 15, line 28, to delete “in accordance with the provisions of this Act” and substitute “with the consent of the woman”.
I have proposed amendments Nos. 55 and 63 in this grouping. I will make two points. Amendment No. 55 proposes to delete "in accordance with the provisions of this Act" and substitute "with the consent of the woman". It is radical. However, it targets criminalisation by ensuring women are protected from coerced abortion but simultaneously removes from the ambit of the criminal law any person, including any doctor, who performs an abortion outside the terms of the Act, avoiding the chilling effects of unjustified criminalisation.
I would like the Minister to think about it. Senator Bacik said earlier that even though we are at a very tired hour women have become non-central. They seem to be getting pushed back. I want to bring them back to centrality. I spoke about this earlier and it links back to seriousness. It also links back to a woman's own assessment of the threat to her health so it is not always somebody else's assessment of the threat to her health. There have been situations where women have been subjected to very degrading and inhuman treatment in certain circumstances. I know the Minister will speak to the amendments on Report Stage so I will not delay the House any more. I am very conscious of bringing women back into the centrality of what we are talking about here.
Amendment No. 63 proposes to insert, "This section shall not apply to a medical practitioner acting in good faith." It is intended to provide additional reassurance to doctors and reaffirm the good faith defences already contained in the various grounds provisions of the legislation. We are assuming that decriminalisation will not be accepted but we need to target any criminal offences to achieve the Minister's objective of protecting women and to reduce the chilling effects to ensure women's procedural rights of access to legal abortion are secured in accordance with the European Court of Human Right judgment in the A, B and C v. Ireland case of 2010.
Can the Minister explain whether the continued criminalisation is on the assumption that the foetus retains certain rights even after repeal? What are those rights? The Minister might want to think about those questions. I do not want to delay the House. I am against the criminalisation and I want to bring women right back into the centrality of the argument so it is not always somebody else making the decision, which has been compounded for the past six hours.
I certainly do not want to delay the House at this late hour. I appreciate the way in which Senators are withdrawing these amendments with a view to discussing them on Report Stage but considering people will want to discuss them on Report Stage and will want to get this right and give it due consideration between now and then, I will very briefly put a few things on the record of the House to help aid that discussion and the interaction we might have. I look forward to meeting some of the Senators tomorrow on these matters. This Bill provides that it shall be an offence for a person, by an means whatsoever-----
It certainly is. The Bill provides that it shall be an offence for a person by any means whatsoever to intentionally end the life of a foetus, otherwise than in accordance with the provisions of the Bill. Officials from my Department and the Office of the Attorney General have considered a number of different ways of phrasing this offence. The wording put forward in the Bill is the clearest formulation possible. A termination of pregnancy is a medical procedure that is defined in the Bill is something that can only be lawfully carried out by a medical practitioner.A broader formulation is necessary, therefore, to sanction all persons other than a woman in respect of her own pregnancy, crucially, who intentionally end the life of a foetus otherwise than in accordance with the provisions of the Bill. It was decided that the wording used in section 23 was the clearest possible to convey the scope of the offences therein.
On amendment No. 54 which seeks to make it an offence to kill or injure a pregnant woman where this also results in the termination of her pregnancy, I point out that it is already an offence to intentionally or recklessly assault any person whether that results in injury or not and it is an offence to intentionally or recklessly kill any person. It seems that this amendment seeks to move the focus from protecting the pregnant woman to protecting the pregnancy, whereas the Bill as currently drafted focuses on protecting both the pregnant woman and the foetus. Furthermore, the offence proposed in subsection (1) of amendment No. 54 appears to include the actions of a pregnant woman who injures herself such as to cause the termination of her pregnancy.
Senators have also proposed amendments which refer to consent or lack of consent by the pregnant woman. The focus of the Senators' proposed amendment No. 54 to make it an offence for a person to intentionally or recklessly administer any drug, substance, instrument, apparatus or other thing to a pregnant woman without her consent such as to cause the termination of her pregnancy also relates to the issue of consent. Since behaviour which the law does not prohibit is permitted, the effect of subsection (2) of amendment No. 54 would be to make it lawful for any person to carry out a termination on a woman at any stage in her pregnancy for any reason if she consents thereto. I do not believe that is anybody's intention because that would mean that no grounds would be necessary for an abortion and all of our discussion of the Bill would be somewhat redundant because termination would be permitted in all scenarios once the woman consented. That is not the intention of the legislation and, in fairness, I do not think it is the intention of any Senator either. The amendment would effectively render sections 9 to 12, inclusive, of the Bill redundant because a doctor who carried out a termination on a consenting woman outside the parameters of those sections would not be committing any offence. Furthermore, it would render it lawful for unqualified non-medical persons to carry out a medical or surgical termination on a consenting woman at any stage of the pregnancy.
It is already an offence under subsection (2) of section 23 to prescribe, administer, supply or procure any drug or substance, instrument, apparatus or other thing which is intended to be used to end the life of a foetus or to be reckless about whether it might be used for that purpose. The proposed amendment seeks to make it an offence to administer a drug without the consent of the woman such as to cause her termination. Any person other than a medical practitioner who administers a drug or instrument to a pregnant woman such as to terminate her pregnancy will be guilty of an offence pursuant to section 23 of the Bill.
Amendments Nos. 56 and 59 address the issue of coercion. The offence of coercion already exists in law under section 9 of the Non-Fatal Offences against the Person Act 1997. I am advised that any person who pressurises, threatens or tricks a woman into having an abortion in breach of the legislation would be considered a principal offender under section 23(1). If a person deceives a pregnant woman into terminating her pregnancy by taking abortion pills, this would be captured in the offence provided for in section 23.
Amendments Nos. 59 and 60 propose the deletion of the subsection of the Bill which makes it an offence for a person to aid, abet, counsel or procure a pregnant woman to intentionally end or attempt to end the life of the foetus of that pregnant woman otherwise than in accordance with the provisions of the Bill. These provisions ensure that anyone seeking to force or intimidate a woman into an illegal termination of pregnancy, such as in a situation of domestic or sexual abuse, for example, could be prosecuted. It would also cover situations in which a vulnerable woman is coerced into agreeing to undergo an illegal termination of pregnancy without medical assistance and possibly for sinister reasons. Criminalising a person who aids, abets, counsels or procures a woman to unlawfully terminate her pregnancy is necessary from a policy perspective even in situations where it could be portrayed as a benevolent act aimed at helping the pregnant woman because the health and well-being of the pregnant woman rests at the heart of policy in this area. Helping a pregnant woman to end her pregnancy outside the provisions of the Bill is not in her best interests and may put her health or life at risk.
One of the primary purposes of this legislation and of repealing the eighth amendment was to ensure that we could eliminate the risks that women face in consuming abortion pills sourced online or seeking an illegal abortion. The Bill provides women with access without charge to safe medical procedures carried out by registered medical practitioners in order that they no longer have to put their health and lives at risk by taking unregulated pills purchased online. We should not and will not criminalise the woman in any way, therefore we must ensure there is a link to the person who would be committing a criminal offence. Section 7 of the Criminal Law Act 1997 provides that any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender. As under this Bill the pregnant woman will not be committing an offence in undertaking the termination of her pregnancy, we must ensure there is a link to the person who could be committing an offence.
I have far more information before me on these matters but I do not intend to go through it all. I wished to quickly put some of those points on the record of the House such that people can use the transcript of this debate as a reference point in the discussions that there is no doubt we will have in the coming days.
I move amendment No. 56:
In page 15, between lines 33 and 34, to insert the following:“(3) It shall be an offence for a person intentionally to coerce or deceive a pregnant woman into having a termination of pregnancy against her will or without her knowledge.”.
I move amendment No. 59:
In page 15, to delete lines 36 to 38 and substitute the following:“(4) It shall be an offence for a person to intentionally coerce or deceive a pregnant woman into terminating her pregnancy against her will or without her knowledge.”.
I move amendment No. 62:
In page 15, after line 38, to insert the following:“(5) It shall be an offence to obstruct, or attempt to obstruct, a woman from accessing a termination of pregnancy under this Act, including by intimidating, threatening, misleading or deceiving her, or by impeding her access to any premises or location where terminations of pregnancy are performed under this Act.”.
This section refers to services for women in accordance with the Act of 2018. This point has been addressed previously but I am asking for reassurance so I can avoid tabling amendments on Report Stage in this regard. The Minister mentioned that in the interpretation of women, because it is confined to services for women, he is using the Interpretation Act 2005 and its recognition regarding the male and female gender. This relates to potential amendments on Report Stage, so can I confirm that with regard to the review of the Gender Recognition Act which has taken place, the Minister will be looking at the issue of binary and intersex regarding section 18 of the Interpretation Act? It is one of the recommendations of the Minister's report. It is slightly at a tangent but it allows us not to have to address this in the Bill. Can I clarify that there is other legislation under which this issue can be addressed?
I am happy to clarify that. I want to reiterate that, from an operational perspective, this legislation is trans-inclusive. We will take on board the findings of the Government's review of the Gender Recognition Act. We have also ensured that the explanatory memorandum is clear on this, as too will be the clinical guidelines.
Catherine Ardagh, Ivana Bacik, Frances Black, Colm Burke, Paddy Burke, Jerry Buttimer, Maria Byrne, Rose Conway Walsh, Martin Conway, Gerard Craughwell, Maire Devine, John Dolan, Frank Feighan, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Anthony Lawlor, Pádraig MacLochlainn, Gabrielle McFadden, Catherine Noone, Kieran O'Donnell, Marie Louise O'Donnell, Grace O'Sullivan, Niall Ó Donnghaile, James Reilly, Neale Richmond, Fintan Warfield.