Protection of Life During Pregnancy Bill 2013: Second Stage (Resumed)
Monday, 1 July 2013
I welcome the Minister of State’s presence and I welcome the opportunity to speak on this very important Bill, which is about the protection of life.
I am unashamedly a pro-life person who believes in the intrinsic value of human life and who believes that all life is sacred and precious and must be protected. In saying that, I am confident in supporting the Bill. Having listened to all six days of the committee hearings, and having met religious, ethical and medical experts on a one-to-one basis, I am confident that the Bill balances the right to life of the unborn child and the right to life of the mother. Life is not always black and white. It is not always possible, I believe, to save the unborn child and the mother, and I believe the Bill provides for those heart-wrenching situations.
For me the Bill is not about religion, but about life and human rights. I also have a conscience and much has been made in this House and outside about the role of conscience. I have worked to inform my conscience and have listened to mine. With an informed conscience I am making a decision on a personal basis to support the Bill. I will work as I have done with the Minister, Deputy Reilly, and the Ministers of State, Deputies White and Lynch, on amendments to bring further clarity if needed.
The Bill deals only with situations where there is a real and substantial risk to the life of the mother from physical risk to emergency situations and in case of suicide. In all cases the Bill requires doctors to have “regard to the need to preserve unborn human life”. This ensures that the rights of the unborn are fully considered and respected in all cases where the Bill will apply. It ensures that Article 40.3.3° of the Constitution is fully respected and adhered to. Nothing in the Bill permits the direct and intentional ending of the life of innocent human beings, as portrayed by some. The Bill ensures that to save the life of the mother it is lawful to carry out any medical procedure.
The Minister has included a number of reporting mechanisms to ensure compliance with both the letter and the spirit of the Bill and importantly to ensure that in practice the Bill remains within the confines of Article 40.3.3° of Bunreacht na hÉireann. This reinforces the clear intention of the Bill to clarify our current legal position – not to go any further or to create any new rights. By having proper reporting mechanisms in place we can ensure that the Bill operates as intended by the Minister, the Taoiseach and the Government. However, I ask the Minister to consider inserting a provision requiring an annual report to be laid before the Houses of the Oireachtas in whatever shape that may be. I believe that would enhance the formality of the report and oblige all future Ministers for Health to carry out this Minister’s clear intention for an open and transparent reporting mechanism.
The Bill puts in place controls and regulations for what already is permissible. If we object to the Bill we are continuing to allow a situation that hands all power to individual doctors. The State, the regulators, the people and this House of elected representatives would continue to be sidelined in this most fundamental of issues. The Bill is not just about legislating for the X case, but it is about legislating for Article 40.3.3° of Bunreacht na hÉireann. It is about legislating finally, after 30 years, to ensure the State will be fulfilling its obligations and its guarantee to “respect, and, as far as practicable, by its laws to defend and vindicate” those rights.
Dr. Rhona Mahony made a telling contribution during the committee hearings when she said, “If a woman commits suicide, she dies and her baby dies too.” As a country we must be proud of the compassion our courts have shown in dealing with very difficult individual circumstances and human tragedies that have been presented to them. One of the most difficult human tragedies that presented was the X case. It required the court to consider a 14-year old girl, pregnant as a result of rape and presenting with suicidal intent. The court had the task of interpreting Article 40.3.3° as inserted by the eighth amendment to the Constitution.
In that case the then Chief Justice stated that the “proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3° of the Constitution.” There has been much debate recently as to whether the issue of suicide as a ground for termination of a pregnancy is in fact law in this country. If it is not, why where two referenda, held in 1992 and 1993, trying to exclude it as a ground? Why then does the current Medical Council guideline 21.1 state as follows:
Abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother. Under current legal precedent, this exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide.
In the X case judgment, the issue was specifically addressed. Again I quote the then Chief Justice, Mr. Justice Finlay, in setting out that legal test as being that “there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by termination of her pregnancy.”
It is clear that in this country pregnancies can be terminated when there is a real and substantial risk to the life of the pregnant woman, including a risk from suicide. This test has been consistently upheld. However, there is no regulation or control of any such termination. There is no regulation as to how decisions are made or even on who can take decisions and in what locations a pregnancy can be terminated.
I understand the concerns of many people regarding section 9, which deals with a risk to life from suicide. I also share this anxiety and I have reflected on this deeply. However, I reiterate that current Medical Council guidelines make clear that this is a ground for terminating a pregnancy as I read out earlier. In this context it is important to recall what Dr. Anthony McCarthy told the committee hearings: “Suicide in pregnancy is real; it is a real risk and it does happen.” Despite what others have said, part of the professional skill set of a psychiatrist is assessing suicide risk. The College of Psychiatrists of Ireland in its submission confirmed that by stating:
Psychiatrists are trained to assess mental states, mental illness and suicidal risk and if trained to Specialist level are competent to do so. These assessments form part of our everyday work.
Pregnancy is a very vulnerable time for women, both from physical and mental health perspectives. As a State, we must ensure that all possible supports are available, which is what this Bill is doing. The Bill does not prescribe any treatment, but deals with the legal grounds. It provides a framework for decisions but, as in practice today, it relies on our highly trained doctors to appropriately care for a pregnant woman.
If the Bill explicitly excludes suicide as a ground then the legislation could be struck down as unconstitutional as it would be denying access to a right which is permitted by the Constitution. Restricting a “real and substantial risk” to a physical risk would be restricting the availability of a constitutional right and would risk defeat in the Supreme Court for being unconstitutional.
There are two ways of addressing the issue of suicide in this context. One is by referendum, which has already been rejected twice by the people. The other is by robust legislation that regulates and controls access to this existing constitutional right, which is exactly what is proposed in this Bill.
Some people say they would support the Bill if section 9 was not included. If that was the case, we would face other difficulties and perhaps future problems.
We may even find ourselves back here again having the same debate in years to come. If there is no mention of threat of suicide in the Bill then it is still open to a court to continue to interpret the Constitution such that a right to a termination exists. Like today, there would be no control over how this right could be exercised.
Everyone who is uncomfortable with section 9 must seriously consider whether opposing the Bill would actually achieve their overall objective. In my humble opinion it would not. Opposing the Bill does not change the legal position. Suicide will remain a grounds for termination of pregnancy. Why do people who oppose the Bill not object to the current medical guidelines? It is contradictory to oppose to the Bill yet not object to the medical guidelines that neither regulate nor control how existing rights are operated.
In January the Joint Committee on Health and Children, which I chair, held hearings on the Government decision following the report of the expert review group on the A, B and C v. Ireland judgment. We are told that judgments are about what happens in practice. The myth that terminations of pregnancy do not occur in Ireland was dismissed. Dr. Sam Coulter-Smith, master of the Rotunda Hospital, which caters for approximately 12% of births in the country, told us that the Rotunda sees:
….about 40 very significantly sick mothers with life-threatening issues annually…On average, we have approximately five or six cases a year in which interruption of the pregnancy is required to save the mother’s life.
Other leading practitioners gave similar evidence. By extrapolation, we have approximately 30 to 40 such procedures each year in our hospitals. We are told that cases of tragic maternal deaths cause heartache for the families involved and distress for medical staff. In discussing the issue, Dr. Rhona Mahony stated:
If one looks back at maternal deaths, one can see there were six deaths arising directly from pregnancy complications but double that number, 13 deaths, arising in women who had pre-existing medical disease. Five of these women had pre-existing cardiovascular disease, two died by suicide and two of influenza, and there were a variety of other medical causes, including liver disease and lung disease.
These are the hard cases that present to our highly-skilled doctors, who do not operate in a vacuum. Dealing with these cases will always be difficult for doctors but, as Members of this august body, Oireachtas Éireann, we have no right to make their task more difficult. We should not place our medical professionals in a position whereby they are unsure of what they can and cannot do. No doctor or medical professional should have to second-guess his or her clinical expertise. The Bill is about giving clarity on what can and cannot be done when there is a real and substantial risk to the life of a pregnant woman. Doctors themselves have called for clarity in this matter. However, this is not only about the doctors. It is about giving clarity to women on what can be done to save their lives if they are at risk during pregnancy. It is also about protecting the unborn child.
Apart from the pressing realities facing doctors and pregnant women there are also legal reasons for acting and legislating. The administration of our democracy is vested in the tripartite of the Executive, Members of the Legislature and the Judiciary, all operating within the parameters set down by the people in the Constitution. Each arm of the State has a distinct role, but each arm must also operate within the parameters defined by the people and as interpreted by the Supreme Court until such time as the people change those parameters.
In the A, B and C v. Ireland case, the European Court of Human Rights held that the lack of legislation providing for rights under Article 40.3.3° has resulted in striking discordance between the theoretical right to allow for abortion in Ireland on grounds of a relevant risk to the woman’s life and the reality of its practical implementation. It went on to state that the implementation would amount to rendering effective a right already accorded after the referendum by Article 40.3.3° of the Constitution. The European Court of Human Rights has not asked us to change our legal position. It has said that we should give clarity to rights that already exist but that is not the only court which has called for legislation. Our Supreme Court also did so in 1992. In the X case judgment Mr. Justice McCarthy criticised the Oireachtas stating: “The failure of the Legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable”.
Some argue that we do not have to legislate and that instead we should have regulations. Leaving aside that our Supreme Court has said otherwise, what issues would arise with mere regulation? Regulations require legislation. They cannot be made without a legislative basis. If basic legislation was passed then it would be left to the Minister to issue regulations which can be done without reference to the Dáil. This could mean each Minister for Health could issue new regulations depending on his personal viewpoint. Some fear legislation because it would make reference to grounds for lawful termination of pregnancy, a proposition with which they do not agree. However, today medical guidelines clearly state that a threat of suicide is an exception to the general provision on terminating a pregnancy in Ireland.
Today the people, through us, their representatives in the House, have no control over how this is implemented or controlled. By putting in place legislation we can control what happens without changing the legal position. The Bill does not legalise anything that is either illegal or unconstitutional today. We are elected to this House by the people. We are elected to uphold the Constitution yet we are also constrained by its terms. The Bill walks that fine line and gives effect to an existing constitutional entitlement and remains within the confines of Article 40.3.3°. Article 40.3.3° has been held out by those who refer to themselves as pro-life as a victory. According to the website of the Pro Life Campaign: “The Amendment protects the right to life of the unborn child and ensures that women receive all necessary medical treatments when pregnant. It is regarded internationally as one of the key pro-life victories of the past 40 years.” If the Bill is passed by the Oireachtas the same protection which was sought by and held out as a seminal victory will remain in place. No legislation can go beyond how the Constitution constrains the hands of this House. At the moment Article 40.3.3° is the buttress against the so-called and often-feared floodgates. If this Bill is enacted it will remain the buttress but it will be reinforced. Added protection will be afforded to doctors and women giving them guidance on what they can and cannot do and on how to make decisions within our existing constitutional provisions.
Much has been made of term limits and a major discussion has taken place on the issue. Parallels have been drawn with other countries. I believe there are really legitimate concerns that have been expressed by many. However, in countries where term limits apply there are exceptions such that a pregnancy may be terminated at any stage where it is necessary to save the life of the pregnant woman. The Bill is about taking action when the life of a pregnant woman is at risk. If term limits are put in the legislation, what happens when the woman’s life is at risk after the term limit expires? We would be providing that after such a time, a doctor could not intervene to save the life of the mother.
We need to ensure that legislation reflects the constitutional protection afforded to both the unborn child and the mother. We must ensure that every effort is made to ensure the survival of the unborn child who must be delivered early to avert risk to the mother’s life. I was that child. I am that person. I was born prematurely to a mother whose life was at risk. I am telling that tale in the House today. The Bill requires that any doctor making a decision in a situation where there is a threat to the life of a pregnant woman must have regard to the need to preserve unborn human life. This reflects our constitutional position and obliges a doctor to make every effort possible to save the lives of both the unborn child and the mother. However, if this can be made more explicit it is something that should be given further consideration on Committee and Report Stages.
I do not buy the argument relating to California, England and other jurisdictions. Simon Mills made the point during the hearings that we have Article 40.3.3° and that it is the bulwark. I do not buy the argument at all.
We must do our business in the House as Members of the Legislature. Like many in the House, I have heard from constituents who oppose the Bill, from some who favour the Bill and from some who oppose it because it does not go far enough. Some have called to my office, others have rung my office, some have protested, others have sent anonymous letters, some have sent e-mails while others have made threats, which I have reported to An Garda Síochána. I thank all those who have engaged in a respectful manner. I am loth to use categories but I am a pro-life person; that is my disposition. As I stated at the beginning, I believe life is precious and I should know more than most in the House tonight about it. I am convinced that a substantial majority of people in the country support the Bill and what the Government is doing.
I have a conscience and I am acting with my conscience to support the legislation to protect the lives of women and their unborn children and to provide clarity to professional medical and nursing personnel. The Bill seeks to address one aspect of this reality: where there is a real and substantial risk to the life of the mother. Doctors will act on their medical experience and deserve to be given legal clarity and protection when so doing.
I commend the Minister on listening and engaging with Members of the House. I look forward to Committee Stage and Report Stage, when he will table amendments with other Members of the House. The Bill is a restrictive piece of legislation. It will not open the floodgates. It will protect life. I am disappointed and upset at colleagues and friends of mine who feel otherwise. I appeal to them again to engage with all of us on the Government side of the House to ensure we can support the legislation, which protects, preserves and promotes life during pregnancy and beyond.