Tuesday, 17th July 2013
I welcome the Minister to the House. I also welcome the opportunity to share my deliberations on the Bill.
As a member of the Oireachtas Joint Committee on Health and Children I attended the six days of hearings on the legislation. Over three days in January we discussed the implementation of the Government decision following the expert group report and over an additional three days in May, we considered the heads of the Bill before us. The hearings provided a forum to discuss the legal, medical and ethical issues relevant to the legislation and we heard from experts, often espousing contrary views, from each of these disciplines.
I fully support the Government’s decision to legislate to implement Article 40.3.3° as interpreted by the Supreme Court in the X case. However, I have concerns about the Bill. The principal point of contention is section 9 – risk of loss of life from suicide. Suicide in pregnancy is real. It is a real risk to the life of a pregnant woman and it happens. I am concerned about us drawing a legal distinction between a risk of loss of life emanating from a physical or mental health condition. No such distinction is enumerated in Article 40.3.3° nor was a distinction made by the majority of the Supreme Court in the X case. Separating physical and mental health in the wider public debate on mental health and efforts to destigmatise mental health illness is a regrettable and retrograde step. I fully agree with Senator Gilroy who spoke yesterday on this issue and endorse his view. During the hearings and my own research I encountered conflicting legal reasoning and argument around the suicide question. However, I remain unconvinced about the need to distinguish between the manner through which a “risk of loss of life” manifests. The conclusion of the expert group was that a differentiated treatment does not appear to be required for medical or practical reasons.
It is strongly my view that sections 7 and 9 should have been merged. I remind my colleagues of the examples we heard about how suicide can and does manifest in pregnancy: a woman with an eating disorder, who had taken three overdoses in the course of her pregnancy because she could not deal with the additional stress of the pregnancy on top of her psychological disorder; a woman who was pregnant as a result of paternal incest; and a woman who was in an abusive relationship, in which the level of physical violence and abuse had increased during the pregnancy – she was trapped, frightened for her safety and suicidal. Many contributors to this debate have stressed their belief that “abortion is never a treatment for suicide”. I refer to Dr. Anthony McCarthy who rightly points out that “abortion is never a treatment for suicide, but neither is counselling, psychotherapy, antidepressants or anything else. There is no treatment for suicide.”
Over the past few weeks we have heard much use of the word “conscience”, which is a “person’s moral sense of right and wrong, viewed as acting as a guide to one’s behaviour”. I assure the House that in each and every decision I take as a Senator I apply my conscience. I did so when I voted against the cuts to respite care, blanket cuts to child benefit, cuts to disability services and the targeting of lone parents in successive budgets. I do not reserve my conscience to be used only for specific legislation. I would like greater consistency on children’s rights issues in these Houses in the future.
Throughout this debate, the term “pro-life” is frequently used as a calling card to identify opponents to the Bill. I object to this terminology and its connotation. In supporting the Bill, is the upshot that I am not pro-life? I assure the House I am absolutely pro-life, both of babies and women alike. A delegation of so-called pro-life Senators and Deputies went on a “Search for Truth” trip to the US earlier this year. I believe others have gone on previous occasions. This trip was apparently funded by the Family & Life organisation, which, according to its own website, is opposed to the MMR vaccine. It suggests as an alternative that we wait for the development of a product that is outside the current limits of science. The MMR vaccine has been proven to save lives.
It is reprehensible that any Member could purport to be pro-life and yet associate with an organisation that is against the HSE vaccination policy which is about saving lives. I call on Senators who availed of the funding for the trip to state clearly whether they support the HSE’s vaccination policy.
I am extremely concerned about the scope and potential application of section 22 of the Bill. The penalty provided for is too severe and the scope of the provision is too broad. A penalty of 14 years in prison and an unlimited fine represent an extraordinarily onerous sanction. Presumably, 14 years is anticipated to be the starting point for a judge in deciding what sentence to impose in the event of a successful prosecution, which will be reduced on the basis of mitigating factors and circumstances. Some 152 years after their enactment, we will ensure the chilling effect of sections 58 and 59 of the Offences against the Person Act 1861 is carried forward into the Bill. Is this really what we want to do? I was struck by the implications of the section for young girls sourcing abortifacient tablets over the Internet, which potential scenario was hypothesised by several Deputies in the Dáil. I find it hard to envisage that any court would see fit to sentence a 15 year old child to 14 years imprisonment for bringing about the termination of an unwanted pregnancy. It would fly in the face of the sentencing principle of providing for light at the end of the tunnel. The penalty is highly unlikely to act as a deterrent, given the likely lack of capacity for reasoned and rational thinking of a terrified 15 year old pregnant girl.
Section 22 is not justified as a means of protecting society. Why are we, as legislators, proposing to enact it? Let us be honest. It is a way of appeasing people who are opposed to the Bill and would oppose it no matter how it was drafted. They are fundamentally opposed to the principle. The penalty suggests to them that they should not worry because where people deviate from the strict limits set out in the law, the State will bear down on them with an iron fist. This is no way to determine an appropriate sentence for a transgression of a law on a complex issue involving potentially vulnerable, scared and desperate women and girls. It is barbaric. If the potential imposition of a custodial sentence longer than that applied to most rape, incest, violent sexual assault, murder and manslaughter cases was required to allow some Members to support the Bill, I am disappointed. The provision is potentially very dangerous. Women and girls who have taken abortifacients and develop serious life-threatening complications will be extremely unlikely to seek timely medical help in the face of a 14 year prison sentence. Are we really purporting to introduce a law entitled the Protection of Life During Pregnancy Act which, by its own sanction, may put women’s and girls’ lives at risk?
I am concerned about the silence in the proposed legislation on children, particularly young girls. The X, C and D cases involved children under the age of 16 years, including children in State care. The Bill is silent on the complex issue of consent for minors for access to medical treatment. It does not distinguish between women over the age of 18 years who have the right to refuse or consent to medical treatment and under-age girls, for whom there are no clear laws governing issues of capacity and consent. I cannot imagine the unbearable situation of a child who has been raped by someone they trusted, is now pregnant and in the care of the State. Parents will normally be asked to give their consent to medical treatment on a child’s behalf. The law is unclear with regard to under-16s who seek access to medical treatment without their parent’s knowledge or permission. We must remember that consent also includes the right to refuse. We continue to bury our heads in the sand when it comes to the scenario I have outlined which, while unimaginable, occurs in Ireland. We are uncomfortable about facing up to this reality and dealing with it appropriately. We have a responsibility, as legislators, not to compound in the legislation the voicelessness of children in the care of the State. We need distinct legislation to clarify issues of capacity and consent where the patient is under the age of 16 years.
After careful consideration, much thought and despite the concerns I have raised, I support the Government’s decision to legislate as proposed in the Protection of Life During Pregnancy Bill which deals only with rare and complex circumstances. As some fear and have resisted, the legislation will be the starting point of a wider public and political debate in which are considered what others have argued, 21 years after the X Case ruling, are the contemporary issues which should be central to the present debate, including fatal foetal abnormalities, pregnancy as a result of rape and incest and wider reproductive health considerations. These issues will direct a spotlight on the eighth amendment of the Constitution. The people will no doubt be called upon to inform the Government of their wishes through a referendum. That is the beauty of a popular sovereignty. The will of the people will win out and inform the Legislature on changes, if required, to our legal arrangements. Debate around social change is to be welcomed and embraced if we are to evolve and grow as a society.