Speech by Minister Varadkar – Protection of Life during Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013

Speech by Leo Varadkar T.D., Minister for Health, Dáil Eireann

Ceann Comhairle,

I would like to thank Deputy Daly for the work undertaken in the preparation and publication of this Amendment to the Protection of Life During Pregnancy Act, which is before the House this morning.

This Bill provides for lawful termination of pregnancy following a diagnosis of fatal foetal abnormality which is defined as “a medical condition suffered by the foetus such that it is incompatible with life outside the womb”.

The provisions for certification following receipt of such a diagnosis broadly mirror those of Section 7 of the Protection of Life During Pregnancy Act 2013. The two medical specialists required to certify under this Amendment would be an obstetrician and a perinatologist.

It was just before Christmas when we had our most recent debate on the issue of abortion, again on foot of a proposal tabled by Deputy Daly.  During that debate I gave my own views on this particular issue.

I will not repeat these in detail, but to summarise, at that time I indicated that I consider myself pro-life, as I accept that the unborn is a human life with rights and I do not support abortion on request or on demand.

I also stated and sincerely believe that this is an issue where there are few certainties and where families and doctors often find themselves having to making extremely difficult ethical and clinical decisions.

As you might recall, because of my experience as a doctor and, in the recent past, as a Minister for Health, I have come to the conclusion that the eight amendment is too restrictive, as it has no regard for the long-term health of the mother.

It also forces mothers and their partner to bring to term a child that has no chance of survival outside the womb for long.  This is exactly the type of clinical scenario that Deputy Daly’s bill aims to address, and, therefore, I commend her intentions.

However, just like last December, I cannot support this legislative proposal.  This is simply because this Bill is unconstitutional.  A referendum would be required to amend the Constitution so that legislation such as outlined in Deputy Daly’s amendment could be introduced.  The Dáil cannot pass legislation it knows to be unconstitutional.

As you are all aware, Article 40.3.3 reads as follows:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

In Attorney General v X in 1992, also known as the X case, the Supreme Court considered the meaning of the 8th Amendment in the circumstances that arose in that case.  A majority of the members of the Supreme Court held that if it were established as a matter of probability, that there as a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful.

The Protection of Life During Pregnancy Act was signed into law by the President on 30th July 2013 and it was commenced on 1st January 2014.  The main purpose of the Act is to restate the general prohibition on abortion in Ireland while regulating access to lawful termination of pregnancy in accordance with the X case and the judgment of the European Court of Human rights in the A, B and C v Ireland case.

The Act provides for existing rights within the Constitutional provisions and the Supreme Court judgment in the X case, and it does not confer any new substantive rights to a termination of pregnancy.  The Act upholds the right to life of the unborn, and the right to life of a pregnant woman whose life is threatened by her pregnancy, as required by Article 40.3.3.

Therefore, as I said earlier, a referendum would be required to amend the Constitution before Deputy Daly’s legislative proposal could be introduced.  This is because the proposed amendment goes beyond what is provided in the current Act and what is constitutional.

At this juncture, I am sure Deputies who support this proposal will question why I am not advocating the need for a referendum, if I truly believe that the 8th Amendment is too restrictive.

Ceann Comhairle,

Allow me once again to reiterate what I said in December.  The current government has no electoral mandate to hold a referendum on abortion and there is no consensus on what form any amendment should take.

Indeed, there is one commitment in relation to abortion in our Programme for Government.  This commitment was to examine the judgment in the A, B and C v Ireland case and to make recommendations on how this matter should be properly addressed.  This undertaking has now been fulfilled through the enactment of the Protection of Life During Pregnancy Act 2013.

Let’s not forget that this is legislation that had been overdue for more than twenty years.

So, just like in December, what I believe is required now is a considered and careful public debate to find a consensus.

However, I do believe that greater compassion is required to find this consensus and to inform our discussions to come.

The situations that this Amendment tries to address can only be described as tragic and I wish to extend my sympathy to any family that has to experience it.  Before I conclude, I would like to take this opportunity to remind everybody that supports are available for women experiencing a crisis pregnancy.

The Health Service Executive (HSE), through the Crisis Pregnancy Programme, funds the provision of crisis pregnancy counselling services.  In 2013 just over €3 million was provided directly to 15 State funded crisis pregnancy counselling services through the HSE Crisis Pregnancy Programme. These services operate out of more than 50 locations nationwide.   Approximately 4000 women attend State funded Crisis Pregnancy Counselling Services for crisis pregnancy counselling annually, a number of which attend for more than one appointment. The woman’s partner and or family members also attend these services for support. The crisis pregnancy services also provide post abortion counselling and a number of them support access to free post abortion medical check-ups.

The HSE has a campaign to increase awareness among women that post-abortion services are available in Ireland.  The Abortion Aftercare campaign, which consists of targeted online and print advertisements, encourages women who have had an abortion to attend for post-abortion medical check-up and promotes the availability of free post-abortion counselling.

The Programme has met with a group representing women who have received a diagnosis of fatal foetal abnormality in relation to relevant crisis pregnancy counselling and post-abortion counselling options currently available and ways to improve the standard of service nationwide.

Following on from this engagement the Crisis Pregnancy Programme is currently in discussion with Maternity services on supporting the implementation of the draft Standards for Bereavement Care following Pregnancy and Perinatal Loss. These standards have been developed to assist and direct all health care professionals in their provision of bereavement care to parents including, a diagnosis of fatal fetal anomaly. Advice will be provided on the availability of counselling services for women and their partners at diagnosis. The Crisis Pregnancy Programme will work with maternity services and crisis pregnancy counselling services on the development of a referral pathway between maternity services and crisis pregnancy/post abortion counselling services.

I do hope that these developments will provide some much needed help and support to those who need in times of crisis.

Ceann Comhairle, Deputies,

to conclude, I oppose this amendment because, although it is well intended, it is unconstitutional, and I would urge you not to support this Bill at this time.