PUBLIC HEARINGS ON ABORTION.

Chairman: I welcome Dr. T. K. Whitaker, who chaired the Constitution Review Group in 1995, to this meeting.

The format of this meeting is that you may make a very brief presentation if you wish, which will be followed by a question and answer session with the members. Your attention is drawn to the fact that while members of this committee have absolute privilege, this same privilege does not apply to you.

Dr. Whitaker made a submission on the Green Paper dated November 1999 and I propose to read out that submission for the purposes of the record of the committee:

Abortion Submission on the Green Paper.

1. As Chairman of the Constitution Review Group I studied the abortion issue (Article 40.3.3) and subscribed to the section of our report "Rights to Life (Unborn and Mother)" which is reproduced as Appendix 5 of the Green Paper on Abortion.

2. I admire the careful, comprehensive and balanced analysis in the Green Paper of the issue and the relevant options.

My personal views below are not at variance with that analysis and are offered only by way of supplement or emphasis.

3. I am opposed to abortion but I am also opposed to waste of public energies and resources. Given that the freedom to have recourse to abortion elsewhere would continue, I would prefer to focus national resources on organised help for women in crisis pregnancies, help for them to bring their "unwanted" children safely to birth and help for them to find foster or adoptive parents afterwards if necessary. I welcome the attention given to services for such women and to strategies to reduce recourse to abortion in Chapter 6 of the Green Paper.

4. Not surprisingly, experience has confirmed the impossibility of upholding equality of rights to life if and when they come into conflict. Most of us, I believe, favour priority for the mother's right when it is seriously endangered. It is not possible to accept the claim that abortion in the broad sense of termination of pregnancy is never necessary to save the life of the mother. Medical procedures which result in termination of pregnancy are regularly performed in the vital interests of mothers, e.g. in cases of cervical and womb cancer. For those who make this claim, abortion appears to be understood in the limited sense of termination of pregnancy otherwise than as an unavoidable consequence of medical action to save the life of the mother. The word abortion has not, as far as I know, been defined in legislation in that limited sense, nor is it so defined in any dictionaries I have consulted. That it still has a broad neutral sense is indicated by the proposal that it be qualified in any constitutional ban by the adjective "induced". The older term "procurement of a miscarriage" appears to have had a similar breadth of meaning: what the 1861 Act prohibits is the unlawful procurement of a miscarriage, the inference being that procurement of a miscarriage could in some circumstances be lawful.

5. Allied to the presumption that abortion is to be understood in a restricted sense is a belief in the existence of a recognised and legally valid convention protecting necessary medical treatment of the mother even when it results in termination of her pregnancy. In the context of any constitutional ban on abortion, it would seem most advisable that the wording should make this protection legally explicit.

6. By the 1861 Act and the 1983 amendment of the Constitution, abortion is banned in Ireland, subject to the exception allowed by the X case decision, that is to say where there is grave danger to the life of the mother even if this, as with threatened suicide, may be a danger posed by herself. Most people would, I think, still want to give prior protection to the mother in a life-threatening situation, but many would not recognise suicide as such a situation. Suicidal dispositions can be feigned and in any case psychiatric illness tends to be less well understood than grave physical illness. The result is a confused and divided public opinion as shown by the 1992 referendum.

7. In essence, what the advocates of a new referendum desire is to annul the X case decision. Legislation is opposed on the supposition that it would extend from the particular to the general the application of that decision and thus confirm the legality of abortion in Ireland where necessary to avert a real and substantial risk to the life of the mother. Generalising the effects of the X case decision does not, however, appear to be the only legislative option. It would seem that legislation could significantly restrict access to the X case authorisation, e.g. by requiring that a number of medical experts, including in threat of suicide cases at least two psychiatrists, certify that termination of the pregnancy is unavoidably associated with medical treatment or action necessary to protect the life of the mother. It could also provide for a delaying treatment and counselling course for a suicidal mother and it could confirm the legal protection for doctors mentioned earlier. The result would be both a substantial qualification of the effects of the X case and a reinstatement of the intent of the 1983 amendment of the Constitution.

8. If a referendum is decided upon, the wording will need the most careful consideration. There should be as few adjectives and adverbs as possible because their meaning is arguable - "induced", "indirect" and "intentional" are examples. My own attempt at a formula is the following: "It shall be unlawful to terminate or put at risk the life of the unborn except where this is unavoidably associated with medical treatment or action necessary to protect the life of the mother". This formula would provide the desired protection for doctors. In any disputed case, it would be for medical experts to confirm that the terms "unavoidably" and "necessary" validly apply.

9. The question arises whether "unborn" should be defined in the Constitution, or whether the Constitution should devolve expressly on the Oireachtas the power of definition. It is to be feared that either course would stir up contention, given the definitional difficulties and implications. "Unborn" implies "on the way to being born" or "capable of being born": implantation might be thought to satisfy this condition more surely than conception. What of in vitro fertilisation? While the Oireachtas should not be paralysed by the difficulties, it should accept that its definitional efforts might not be conclusive - might have to be amended or extended later - and would be subject to judicial and even perhaps constitutional review.

Dr. Whitaker, thank you very much for your submission. I read it so it is on the record and enjoys the absolute privilege which it deserves. I ask you to elaborate on that submission and then take questions from the Members, and also perhaps to look at the history of the matter from the point of view of the review group before the submission.

Dr. T.K. Whitaker: Very good. Thank you, Chairman. In preparation for coming here I noted six points that perhaps might be coming under review. The first was confusion over the meaning and application of the term "abortion" and the need for medical protection if abortion were prohibited. I add to that how inappropriate it might be to rely on medical ethics as such. That was my first point.

Deputy J. O'Keeffe: Appropriate or inappropriate?

Dr. Whitaker: Inappropriate. The second point was how to deal with incest, rape and deformities. The third point was how to deal with the mother's suicidal disposition. The fourth was whether legislation could suffice. The fifth was, if a referendum is necessary, the possible wording. The sixth was the last question I touched on, the question of definitions.

Chairman, I am happy to say a few words on all these things if that would help. Could I start anyway with the confusion over the meaning of abortion? That came to light when in the constitutional review group we first began to examine the problem. I found that all my colleagues on that group became quite conscious of the confusion that was being caused by the use of different interpretations of the word "abortion". We were confronted by one slogan which was that abortion is never necessary to save the life of the mother, and this appeared to us to conflict with all the medical evidence of intervention by doctors to save or protect the life of the mother when there was an unavoidable consequence of termination of pregnancy.

The very word "abortion" in the older sense was a very wide and neutral term meaning the premature expulsion of the foetus. Doctors - the GPs of my generation - were constantly using the term abortion, even to refer to miscarriages. So when you go back to the 1861 Act, as I said, you find that - surprisingly in an Act - they are using the term "unlawful" which introduces an inevitable distinction between what is lawful and what is not lawful. What they described as unlawful was intervention to procure an abortion of a healthy infant before its term. We really have what I have described as an Alice in Wonderland situation where Humpty-Dumpty says the word means whatever I say it means.

I think the evidence I've seen----- Yesterday afternoon I was able to skim through the reports of the interviews you had with some of the medical experts and it's quite clear from that that there is a confusion which needs to be dealt with. In that connection there is also need, I think, for a clear protection for medical intervention to protect the life of the mother, even where it results in the termination of a pregnancy.

I mentioned ethics. At present the doctors are placing great reliance on conforming with the ethical guidelines laid down by the institute of gynaecology. That was the situation under the 1861 Act, both here and in England, but in England according as ideas about ethics evolved it became possible to have a situation where abortion or deliberate termination of a pregnancy was allowed even where the mother was in ... there was no threat to her life, it was just a threat to her stability. I think, obviously, one could not rely entirely in any public policy aspect on medical ethical guidelines. It is up to the Houses of the Oireachtas to decide what under the law is permitted and what is not.

Would you like to pause there or should I keep going?

Chairman: No, I think that's the first point really.

Dr. Whitaker: That's the first point.

Chairman: Continue on the other point.

Dr. Whitaker: Okay, on the other point. The next one was how one might deal with incest and rape and deformities, these special cases. Incest and rape are particularly difficult issues, arousing much sympathy because of the absence of the mother's consent, indeed, the invasion of her body and her probable abhorrence about being pregnant at all, especially with an unwanted child. However, having brooded over this, my view remains that the innocent life is entitled to protection but, on the other hand, that the State should be generous in the help offered to the mother during pregnancy and in providing for the care and upbringing of the child afterwards, whether by the mother, foster parents or adoptive parents. Unborn babies with spina bifida, for example, should be no less protected I feel than the children or adults who are their counterparts. In other words, if the unborn could lawfully be deprived of life why not the child or the adult suffering from the same disease?

On the question of what is called "lethal deformities" one of them is anencephaly, which is a condition where there is no hope whatever of the infant, even it it's born, remaining alive and I find myself in a quandary about that situation where I might be induced to say yes, once that is clear, one could allow the termination of the pregnancy in that case but I remain somewhat doubtful about that. There are other cases like cystic fibrosis and so on where it may be fatal in the long term but there is a reasonable prospect of a span of life in which the brain would still be active and alert and I couldn't bring myself to agree to the termination of pregnancy in such cases.

If I move on then to the third point, how to deal with the mother's suicidal disposition. I have to start by admitting that lay persons tend to regard physical disease as in some sense more real or more understandable than mental illness. So, I'm immediately put on guard against a tendency to write off manic dispositions. I confess I wasn't aware until I read the medical submissions that pregnant women are even less disposed to suicide than other women or that, as somebody has said, suicides are as rare as 3% amongst them. I would have to qualify the interpretation of that by saying that it doesn't exclude the possibility that the 3% might be composed to a high degree of pregnant victims of rape or incest and behind all this there's the possibility of a suicidal tendency being feigned.

The way in which I would deal with this problem would be legislation to restrict the X case decision by imposing a requirement of a certificate of at least two specialist psychiatrists that a suicidal disposition was present, posing a real and imminent threat to the life of the mother, and that the disposition had persisted despite the mother having had expert counselling or therapy. I accept that a case in which such a certificate was forthcoming would still pose for many a dilemma of conscience. Can the loss of one life rather than two be accepted as the lesser of two evils? That's the conscientious dilemma. It might be some salve not to allow the abortion of a viable foetus in such cases, in other words, limiting the intervention to the first 14 weeks, but I am clear that in all other circumstances doctors should be expressly protected by law when termination of a pregnancy at any stage is unavoidably associated with treatment necessary to protect the life of the mother.

The fourth point is I'm asking the question whether amending legislation would be sufficient and it's clear from what the Chairman read out of my submission that I would prefer, if at all possible, to avoid the expenditure of public energy and resources on a referendum. The kind of legislation I would have in mind is restrictive legislation and it would say, first of all, where suicide is the threat to the mother's life, require that two specialists psychiatrists certify that the suicidal disposition is genuine and poses a substantial and imminent threat to her life, despite her having had expert counselling and therapy. That is not in proper legal terminology but the meaning of it I think is clear enough. The second paragraph would ... even where such a certificate is given no termination to be allowed after the first 14 weeks of pregnancy. The third element in the restrictive legislation would be in all other cases of substantial threat to the mother's life, termination of pregnancy at any stage is lawful only if it is unavoidably associated with medical treatment or action necessary to protect the life of the mother.

It is arguable that provisions in law on these lines would be reconcilable with the Article 40.3.3 requirement that we respect and, as far as practicable, defend and vindicate the right to life of the unborn with due regard to the equal right to life of the mother. I say it's arguable - it's not for me to decide whether it could be substantively relied upon. Or is a referendum necessary, and possible wording, I have made a submission ... I have included a formula in the submission I have made to the Select Committee and brooding over it since hasn't given me any greater enlightenment, so I had to leave it as it was.

As regards definitions, which is the final item, I expressed great caution about that controversial matter in the submission. Nevertheless, I do believe that the time has come to begin to attempt some definitions and I would favour doing this legislatively. I don't think the Constitution is the place for definitions, particularly definitions that must be tentative and be subject to review in the light of advances in science.

I think perhaps a start could be made with the term "pregnancy". That is what we are dealing with - termination of pregnancy. It is clear to everyone when it ends, but when does it begin? When does an unborn come into existence? Should there not logically be some clarity as to what we want to protect? Here endeth my comments.

Chairman: Dr. Whitaker, thank you very much for your submission and for the clear amount of reflection you have given this topic. I have just one or two short questions I wanted to ask you, before I ask the members, in relation to one or two difficulties I see. First of all, on this whole question of medical certification, the evidence suggests that in our medical practice it is the clinical judgment of a doctor that is decisive. There are ethics committees in individual hospitals but the question of clinical judgment ... a lot of importance is attached to that by our medical practitioners and those who are in the difficult position of having to make decisions in this area. It doesn't seem to be traditional in the experience of our medical profession to have some form of prior clearance or written authorisation of that type. I was wondering, could you comment on that?

Dr. Whitaker: I am afraid the only comment I could make is that if that is so then what I am proposing, which I think is a reasonable proposal, would just shrivel up for lack of use. I certainly wouldn't abandon the need to require such a certificate before one did such a drastic thing as terminate a pregnancy, in the case of suicidal disposition.

Chairman: The other problem in relation to suicidal disposition was that Dr. Sheehan suggested to us that no reputable psychiatrist could put a procedure in place that would have predictive force on this issue. Dr. Clare expressed the view - I want to summarise him fairly - I think he expressed the view that before the enactment of the 1967 Act in the United Kingdom the psychological ground was possible under a particular interpretation of the 1861 Act, and that the psychiatric profession were abused, essentially, in providing opinions to justify terminations which had no real foundation in the literature and reputable psychiatry.

Dr. Whitaker: You see, the purpose of what I am suggesting is simply to put reasonable blocks in the way of easy resort to termination of a pregnancy where the suicidal disposition may be feigned, or where doctors may seriously doubt whether it would actually be put into effect. I am afraid I can't get away from the need for resort to the doctors, nor can I, of course, compel them to comply.

Chairman: Thank you very much. Senator O'Meara.

Senator O'Meara: Thank you, Chairman, and thank you, Dr. Whitaker, for coming here today to speak to us on what is clearly - I think we know by now - a very difficult and complicated matter. I want to ask you one specific question in relation to your suggested wording, or your suggested formula, on the last page of your submission in which you say, or you propose, "It shall be unlawful to terminate or put at risk the life of the unborn", etc. Can I ask you to clarify why you use the phrase "or put at risk" there? It seems to me that could open an extremely broad vista whereby if the Constitution suggests that it would be unlawful to put at risk the life of the unborn, it raises a whole range of scenarios legally, I would have thought.

Dr. Whitaker: It's in a negative context. I'm saying that it's unlawful to terminate or put at risk the life, except where this is unavoidably associated. So, putting at risk where it is associated with medical treatment would be covered and exempted by this. But I take your point about using the expression outside that saver clause, because I agree that "put at risk" is capable of very wide interpretation, and perhaps one should qualify it and put "at fatal risk"-----

Senator O'Meara: Fatal risk, yes.

Dr. Whitaker: -----or some such term.

Senator O'Meara: Thank you.

Deputy J. O'Keeffe: Dr. Whitaker, thank you very much for coming to us today and, indeed, may I compliment you on the clarity of your analysis, thought and presentation. Before we get into your six-point approach that you have used in your oral submission, am I right in thinking that your general view is that there is an air or unreality to the debate when we talk about constitutional amendments or, indeed, even legislative changes because of the practical situation that so many Irish girls and women - up to 6,000 a year - are now going to England for abortions?

Dr. Whitaker: I am very conscious of that and I have to remind myself that, notwithstanding that, it is incumbent on us to put the law that applies in Ireland in whatever is the proper shape according to our own likes. But it sort of infects all our thinking, that there is an escape route. Even if we seem to be harsh or seem to be doing the right thing, it is always open to people to take a different route. What it would influence me towards, mostly, is not going to tremendously expensive or troublesome procedures here, because it is in a sense unnecessary gilding of our lily, and we have to remember that no matter what structure we set up here there is an escape route. I think that, nevertheless, our own structure should be what we want it to be in accordance with our own likes.

Deputy J. O'Keeffe: Following up that point, would I take it that if we had a lot of money to devote to the problem and if we want to expend a lot of energy in using it to best effect, that your approach would be, at least initially, to tackle the reality of the problem and, therefore, to spend the money and to expend the energies in programmes on ensuring that boys and girls receive education in relationships and on sexuality, that there is a proper approach in relation to the availability and distribution of contraception, in the areas of counselling - all these other non-constitutional and non-legislative areas? Would it be fair to say that you would think that there should be a major, primary focus on that area if we are genuinely to deal with the reality of the problem?

Dr. Whitaker: Deputy, you expressed exactly what is my viewpoint on this. I think, since resources are not unlimited, we should be devoting them primarily to those purposes that you have just described. Therefore, I would, if at all possible, try to avoid having a referendum. If the legislative restrictions that I indicated stand up, I would be very happy not to have money or time spent on a referendum and more and more resources devoted to all the purposes. First of all, trying to ensure that there aren't unwanted pregnancies and then, if there are, that they are carried to completion with every help that the State can give and that the children of these pregnancies are helped to have good parents, whether their own mother or foster parents or adoptive parents. I entirely support, as I said, the views of your committee in the Green Paper on the services that should be available to cover those needs.

Deputy J. O'Keeffe: In relation to the question of a referendum and, after all, our starting point is that we are a committee on the Constitution, are you making it absolutely clear that you don't accept the simplistic slogan that it's never ... that an abortion is ... that it's not possible to accept the claim that abortion is never necessary to save the life of the mother? In your view, is it - and this is borne out by a lot of the medical evidence - that in fact in some circumstances abortion is necessary to save the life of the mother?

Dr. Whitaker: Of course, as you know, I'm not a medical doctor-----

Deputy J. O'Keeffe: Yes.

Dr. Whitaker: -----but I've searched all the evidence and it's quite clear to me that that statement that abortion is never necessary to save the life of the mother is true only if you read abortion in a very limited sense, namely, abortion that is not medically necessary to protect the life of the mother. So it's a misleading statement to make that abortion is never necessary to save the life of the mother because it is.

Deputy J. O'Keeffe: It's misleading in your view?

Dr. Whitaker: Yes.

Deputy J. O'Keeffe: Looking at the proposal that's presented to us, that we have a blanket prohibition on abortion in all circumstances, in your view that would put the life of the mother at risk?

Dr. Whitaker: That would be an appalling mistake to make.

Deputy Kirk: Thanks, Chairman, and thanks to Dr. Whitaker for coming into us today. In many ways he has replied to or dealt with some of the questions I had prepared them in his submission. The definition of abortion, Dr. Whitaker, you feel that it should be set down in legislation. Maybe I'm misreading what you said, but the question of doing it tentatively and also endeavouring to define when life begins, do you think that can be encompassed in legislation?

Dr. Whitaker: I would draw a distinction between those two types of definition. I haven't suggested that "abortion" as a term be defined in legislation. What I have suggested is that what the Constitution should prohibit, or law should prohibit, is the termination of a pregnancy otherwise than unavoidably associated with medical treatment to save the life of the mother. Implicit in that is the definition of what abortion is. It's doing a termination that hasn't that excuse, but I do think, coming to the pregnancy one, I'm just tentatively suggesting that perhaps we should start in legislation defining things, and the question of when pregnancy begins is something that is still up in the air. At some stage we will have to come to grips with that and that means deciding whether it's at the time of implantation or earlier.

Deputy Kirk: Medical ethics ... you obviously looked at the medical ethics we have in Ireland and the medical ethics in the UK. There clearly is a difference between the code of ethics in both places. How relevant do you think that is to the debate on the issue?

Dr. Whitaker: As I said earlier, I wouldn't be happy having the law of the country determined by reference to a medical ethics code because, first of all, the members of a Parliament don't have any say in what goes into that code but, secondly, it's something that can evolve over time in a way that might not meet with general public approbation, so I think what one should be relying on is not medical ethics but whatever clear prescription we make in our own laws.

Deputy McManus: First of all, Dr. Whitaker, thank you very much for coming here this morning. I think it's been very informative. When we were given this task I felt it was a considerable task to achieve all-party consensus considering that, within most parties, there isn't consensus on this issue but I was interested that the review group was able to achieve consensus. Was that a difficult achievement or was it something that came relatively easily to you?

Dr. Whitaker: I think Jim O'Donnell would confirm that we had more drafts of that particular thing before the group than any other.

Deputy McManus: Okay. In relation to the point-----

Dr. Whitaker: Not necessarily because of diversity of view but because of the need to tease out all the rather difficult problems that we confront in relation to 40.3.3.

Deputy McManus: In relation to your position that you've put forward, which I take is your personal viewpoint in relation to abortion, many of the points that have been raised, or some of the points that have been raised by the medical presentations are ones that are outside the idea of the very simple clear-cut choice - a woman's life is at risk, therefore, her life must be saved. There are one or two others that I would ask you to respond to. For example, a cystic fibrosis case where, as I understood it, Dr. Denham wasn't talking about simply the point that a woman was given a choice to have an abortion where her foetus was diagnosed with having cystic fibrosis. He was putting forward the case where it was a second pregnancy and where a second child would have an impact on the first child, particularly in terms of cross-infection, which were very likely to lead to a shortening of the life of the first child and that there was a major dilemma for the mother in those circumstances where, having delivered a second baby of this type, could have a very negative impact on the family but, in particular, on the first child.

The other case is the one of rape. Now I can respect your view but I have ... I think these things are challenging to us. For example, if one's daughter is 12 years old, is savagely raped and becomes pregnant and is unable to travel, can we honestly say in those circumstances that one should not envisage abortion at the early stages as being an appropriate measure? Where a woman is pregnant with an anencephalic foetus, where pregnancy itself creates an additional danger for the woman in terms of her health because this is clear - you're safer if you're not pregnant, as a woman. There's no chance of the foetus surviving. I mean, there are moral dilemmas there that I would appreciate a response from you.

Dr. Whitaker: In fact, I touched on these points already. For example, cystic fibrosis. As I understand it, from reading, fairly rapidly I must say, yesterday afternoon the medical submission, it's a case where there is some reasonable span of survival in prospect and also the brain is not affected, as I understood the situation and, therefore, you have children who are not, in any sense, lethally handicapped - well, not in the full sense lethally handicapped - and there is a dilemma, I admit, but my choice in the dilemma would be in favour of life for all those children, even a succession of children, admitting the risks that arise from having several affected children in the one family. I am most sympathetic but I feel I have to take the moral line that such life as they have is something we should not deny them.

Deputy McManus: One last question -----

Dr. Whitaker: On the other points you raised about rape -----

Deputy McManus: The same applies.

Dr. Whitaker: My reply on rape and incest is that I would encourage as far as I possibly could, the carrying of the child to maturity and give every help. I would not allow termination in those cases here. I admit one has always in one's mind the possibility that the other choice is open and different; nevertheless, even if there was no other choice open, I would have to come down, perhaps rather harshly on the side of not allowing....in the cases of rape or incest.

Deputy McManus: That is certainly clear. Thank you. I want to put a couple of points I picked up and into one question. You set a limit of 14 weeks - I am curious in terms of where there might be a case for abortion. Maybe I will just raise the other two points so you can cover all them together, I am curious as to how you fixed on 14 weeks.

Dr. Whitaker: I can tell you immediately. I did not invent it. I gathered from reading the medical stuff that was the time before a foetus became viable.

Deputy McManus: I see. Let us say the choice was made by the Government to go the route you are recommending, where you would have legislation restricting the conditions in terms of complying with the constitutional amendment? Do you think it serves a purpose to have that legislation put to the people?

Dr. Whitaker: Yes. I forgot to mention that point. I am not sure, no matter how hard one tried, how well understood the situation might be. In the end it could amount to very much the same as a referendum if you have to give equal resources from the State for each side and you have to produce a whole lot. I would think - and this is a point I have made in relation to referendums generally - the procedure that is being gone through here is the proper procedure for dealing with all referendum issues, namely, that a joint committee would examine the issue - say it is a new treaty like the Maastricht Treaty - and would invite evidence from outsiders and representations from interested groups and would then make a report setting out what are the arguments. That report then could be - and should be - the only document released, or having to be released, from State sources to the public. Anybody else can, at their own expense, have propagandist documents but I think the State's obligation to inform the public on issues of public importance would be discharged by having a report of a joint committee that had examined itself, held evidence and come to a report.

Deputy McManus: There is a thought. I am sure somebody would object to that.

Chairman: What would be the prospect of me completing my mission here?

Deputy McGennis: I thank Dr. Whitaker for coming in from his very busy retirement, to make time available to us. The point you made at the beginning was one that struck me, probably not the first day but the second day of hearings where you mentioned this Alice in Wonderland type scenario.

Dr. Whitaker: Where Humpty Dumpty decides what the word means.

Deputy McGennis: Exactly. We were told with absolute conviction by several different doctors in different days that they knew precisely what was abortion and what was not and it is quite clear that it is not that clear, if you know what I mean. My question was a follow-on to Deputy Kirk's. It is just that you have stated, and I am glad you have made the point, that you would not favour an absolute constitutional ban and I am saying, because of the risks that it might pose to a mother's life, I think that is a very reasonable point.

Definition has been the problem - we had one, or at least I thought we had one problem in terms of defining abortion but you have actually posed another difficulty for us and that is defining unborn. If I understood what you said in response to Deputy Kirk it was that it might not be necessary to define abortion because if you went the route of constitutional referenda, the wording itself might explain what is your intention. But if you were to use the term "unborn" at all in that, as you do in your own suggested wording, then you will have a need to define "unborn". You stated that certainly unborn should be defined legislatively and not within the context of the Constitution because of medical changes, technological changes. So, is it going to be possible to have a constitutional wording without having brought forward legislation which defines what is unborn and when pregnancy begins?

Just a quick follow-up point. You mention that there should be legislation and not ethics committees in hospitals deciding on procedures and I think we have references made in other hearings about the British system and how it became so liberal, and that was not intended at the beginning. Yet, the restriction you are suggesting is a restriction of the X case, you say that you would have two....at least you would have medical people and psychiatrists, etc., doing maybe precisely what happened in the British system in its inception. Would you be happy enough that that would not, in itself, lead to rubber stamping, to somebody saying, yes, we have a threat to suicide, and that means two psychiatrists and a medical person have to do this. Would you be confident that in fact it would not go the way of the British system?

Dr. Whitaker: Your first point, Deputy, concerned the word unborn which, as you know, is in the Constitution since 1983 without any attempt to define, either in the Constitution or in legislation, what it really means. Perhaps people are happy to leave it in that state but I can anticipate, and I am sure members of the committee could anticipate, there being, at some time, the need to establish exactly what is an unborn. It is a very peculiar word anyway. It is an adjective essentially rather than....you expect to find unborn human being or an unborn child. When that comes, are we expecting the courts to decide when a pregnancy begins? If the question of unlawful termination of a pregnancy ever arises it will have to be shown that there was a pregnancy to terminate - when did it begin? I feel that we might, if we are bold enough, anticipate that difficulty by attempting a definition in legislation.

You rightly say that I am not anxious to define the word abortion except inferentially by forbidding termination except in well defined circumstances where it is associated with medical treatment to protect the life of the mother. To define abortion would raise perhaps a whole host of difficulties we do not foresee at the moment because there is a wider interpretation allowed by all the dictionaries in English. We are not going to change all those by one sweep of our hand.

On the second question, which was were you introducing some kind of elasticity by requiring certificates from doctors given that they might be guided by their own ethics, one has to take a risk. All my instinct was to, as I said, provide a few hurdles that have to be legitimate hurdles to cross. If you find that the hurdles are knocked down or are useless, then you have to think again but, for the moment, I would have to go along with those.

Chairman: Are there any other questions? Deputy O'Keeffe? Deputy Enright?

Deputy Enright: Very briefly, again I'd like to be associated with everybody who's thanked you for attending this morning. Your views certainly are very worthwhile and we'd be very conscious of what you've stated in your direct evidence statement and what you've said also. I think the Minister for Health should have a close look at your views expressed in paragraph 3 because it is of importance that national resources would be focused on organised health for women in crisis pregnancies. I think that's very, very important and there should be an emphasis on that particular matter.

I heard what you said about, we'll say, mothers who are expecting children who are likely to have cystic fibrosis. After Dr. Denham had spoken here, I took the opportunity of talking to some parents who have had children with cystic fibrosis and I also spoke to some of the people who actually are suffering cystic fibrosis and their views are similar to yours.

Dr. Whitaker: They were happy to have the children.

Deputy Enright: They were happy to have the children and, even in the future, some of the young women I've spoken to feel they would prefer that the pregnancy would continue and the child be born, especially after our considerable advances in medical skills. The one thing is, you mentioned a foetus that would not be viable and suffering from some disease. I didn't quite get the....

Dr. Whitaker: Inadequate brain.

Deputy Enright: Yes. You said you had some doubts about whether or not that pregnancy would terminate. The question posed by Deputy McManus to you about whether a girl of 12 or 13 years of age who was raped, supposing there is a girl of 12 or 13 who is actually raped, by somebody who is suffering from or who has a disease such as AIDS and it is likely that a child will be conceived through the rape and would have a disease, would you - and this is a difficult one - even in that instance, feel it should be allowed to proceed to full pregnancy?

Dr. Whitaker: You're posing very harrowing instances to me.

Deputy Enright: It's a difficult situation but, I'll put it this way, rape is harrowing for everybody involved.

Dr. Whitaker: I'm afraid that, however reluctantly, I'd have to stick to the principle that the little, innocent child, even if suffering from some disease, is entitled to life, entitled to be born and to take its chance.

Deputy Enright: Okay, that's answered my question.

Deputy Daly: Dr. Whitaker put forward wording he feels would be appropriate if we decided to have a referendum. If it was to be decided that you would have a combination of legislation along the lines that you have been suggesting, which I take it is restricting the result of the X case decision, would you substantially change the wording of a referendum if, for instance, there was to be legislation along the lines you're suggesting and a constitutional referendum too?

Dr. Whitaker: If there were legislation along the lines I'm suggesting, I would've thought it unnecessary to have a referendum. I was hoping that the legislation would suffice to deal with the outstanding issues. I wouldn't have a referendum.

Deputy Daly: You wouldn't see a situation where you might have a combination?

Dr. Whitaker: I'm sorry?

Deputy Daly: You wouldn't see a situation where it might be necessary, even to allay some public anxiety, to have a referendum and legislation, a combination?

Dr. Whitaker: I can see that there might be a case for allaying public anxiety. I wouldn't be enthusiastic myself about it but I can see that there might be a case. If there's a referendum undertaken, whatever wording is proposed should do the job. I'm not sure but I don't think I'd bother with legislation in those circumstances.

Deputy J. O'Keeffe: I've listened very carefully to your views, which I've always respected, Dr. Whitaker. Could I put another possibility to you for consideration? It is essentially related to the possibility of a package which might involve the status quo plus a substantial package by way of support for the measure that you initially outlined from the point of view of the help for women in crisis pregnancies and proper education and counselling and so on.

Could I just sketch out a scenario and ask you to comment on it? It seems clear to me that there's no chance of a consensus in relation to a new referendum. You're probably aware that this committee received about 100,000 cards or petitions ---

Dr. Whitaker: Yes, I sympathise.

Deputy J. O'Keeffe: --- with a simple demand for an absolute ban on abortion. Now, that demand seems to be predicated on the proposition that the termination of a pregnancy is never necessary to protect the life of the mother. All the medical evidence....not all the medical evidence, but much of the medical evidence we're getting, and a lot of the objective comment we're getting, would seem to reject that simple proposition, unless one distorts the medical definition of what is an abortion. On the basis that there seems to be no consensus on the issue of a referendum, we then have to look at what we might do elsewhere.

If we take the one part of the package where I see a lot of support for this question of measures in the social context, from the point of view of education and so on, and if you take the other, you've raised the issue about the difficulties about definition, possibly then that we should tackle the question of putting into legislation a definition of when a pregnancy begins. Now, taking into account the fact that any limited theological reading of it does seem to suggest that that issue has been a cause of debate going back over many, many not years but centuries, if not millennia, and that we have a court system that essentially, at the end of the day, interprets and defines law, is there anything too far wrong with a package which would involve substantial support for crisis pregnancies coupled with the status quo? Would you like to comment?

Leaving the situation as it is, option number three in the Green Paper, which hasn't really been looked at to any great degree, and I was wondering .... in the Green Paper there it says that retention of the status quo without legislation has the disadvantages that the courts would become the ordinary forum for resolving issues - definitions in other words. Is that not a function of the court anyway?

I merely put forward that package for your views on whether it would be an evasion of responsibility on the part of the Oireachtas or a possible solution to what is a knotty problem, particularly as it now presents itself and the reality is, as you said in your opening remarks, those who want an abortion will travel to England to have one.

Dr. Whitaker: Frankly, I have to say I regard it as an evasion of responsibility. I don't think it would be acceptable to the public because it means leaving to the courts awkward decisions, like the X case, and the public in general were not too happy with the X case decision. I think the responsibility of the Parliament is to set the guidelines of law as clearly as they can and not to leave deliberately to the courts the settlement of a whole lot of obscurities.

As regards the particular thing we were talking about, the definition of pregnancy, of course I understand how that has been debated down the centuries. My instinct, frankly, would be to dodge it on this occasion because you have enough ... we talk about going to the public or seeing what the public want, but the public are obviously in a state of great confusion. Its going to require an awful lot of effort if we go by the referendum route to make sure that the issues are fully understood. Therefore, I would not complicate them further at this time by introducing a new area of controversy about when pregnancy starts. I merely mention it here as something that will have to be addressed sooner or later and the proper way to do that is by legislation and not by leaving it to the courts. I don't think it would be acceptable now to leave things as they are, which was the question you put. I think people expect there to be some clarity, some proposals to emerge from this very careful study of the issue over several years. There would be grave, not only disappointment but a feeling of being let down by the legislators if they were unable to come up with a reasonable set of propositions.

Deputy J. O'Keeffe: You use the fact that the Supreme Court came to a view on the 1983 amendment in the X case. Do you accept that no matter what is put into the Constitution or the law, that if a dispute arises on interpretation, the Constitution provides that the dispute should be resolved in the Supreme Court? When there is a dispute on the effect of the Constitution, legislation or on definitions, the only route, as provided by our Constitution, is the courts and, ultimately, the Supreme Court. Irrespective of what is done, the courts have the last word on the interpretation of definition.

Dr. Whitaker: I fully accept that but, equally, I would maintain that it is up to the Legislature to express very clearly and with every due regard to the possibilities of misinterpretation what it wants to be the law of the land. If the courts are in the ultimate position of deciding between disputing parties or disputing interpretations, but that does not ... the first requirement is that the law be set out in its original form with the utmost clarity so as to avoid, in so far as is possible, recourse to the courts.

Deputy J. O'Keeffe: Would you say that even in a situation where we can get no evidence of a consensus on a basic definition of abortion? We have no agreement on it.

Dr. Whitaker: Surely, you will accept that 160 Members of the Dáil and the 60 Members of the Seanad are in a better position to decide what the law should be and to arrive at a consensus than a haphazard group of five judges.

Deputy McManus: Hear, hear.

Deputy J. O'Keeffe: The point is well made.

Dr. Whitaker: I may have expressed that in terms that might suggest lack of reverence for the Supreme Court. The proper approach is to leave as little as possible for resolution by the courts.

Chairman: Dr. Whitaker, you have anticipated my final question to do with the five ladies and gentlemen who compose the Supreme Court. I do not have a difficulty with the general statement of law in the Supreme Court, which is that a real and substantial threat to the life of the mother is a justification for all necessary medical intervention. I have a considerable difficulty with the facts of the case because we have learned from medical evidence that the suicide risk is not postulated as a serious risk and a procedure has not been advanced to us, as legislators, which would enable us to act on the strength of that. In the X case, the Supreme Court said the Legislature should address this question. In fact, that was one of the criticisms made by the late Mr. Justice McCarthy in the X case. Does the Oireachtas not have some measure of discretion to determine what risks qualify for the purposes of the X case?

Dr. Whitaker: The awkward fact is that the X case decision by the Supreme Court is now part of our law. In fact, there could be some doubt as to how far legislation can change that law. I am trying to keep within the bounds of accepting that that was the decision and then trying to make it difficult of access in the doubtful cases, in other words, in the suicide cases. The devices I am proposing are hurdles set up to be crossed to make for difficulty of access than in any way implicitly accepting that doctors can decide whether there is going to be a suicide or not. Psychiatrists are probably in a better position than anyone else to offer an opinion, but that is as far as it goes.

Deputy McManus: I hope I did not pick up the Chairman incorrectly, but notwithstanding what happened in the X case, I did not get from the medical evidence that, while it may be rare, that it isn't an issue on occasion - that there is such a thing as the possibility of suicide in pregnant women and that it is a real possibility even if it is rare.

Chairman: I did not get that impression from the evidence.

Deputy McManus: I have to disagree with the Chairman.

Deputy J. O'Keeffe: Was it not clear that there is a reduced risk?

Deputy McManus: Yes. It is clear that there is a reduced risk in pregnant women of carrying out a suicide but it was also clear to me that one cannot say there is no risk. That is an important difference. We are clearly talking about very rare occasions but it must be recognised that such a thing is possible and has happened. The likelihood is that part of the reason there has been a reduction in suicide among pregnant women is because they can travel to England to have an abortion. That is my opinion. In terms of the medical opinion, we cannot presume there is no such thing as the possibility of suicide.

Chairman: We cannot presume there is no possibility of suicide in any person. I would not dispute that. I asked Dr. Sheehan on this issue and he said there is no procedure in the literature which would establish or demonstrate the risk of suicide in the case of a pregnant woman. There is no test or, in a sense, there is no fail-safe way of saying the person will or will not commit suicide. It does not exist. That is the issue I am exploring with Dr. Whitaker.

How can we-----

Deputy McManus: Sorry Chairman, I do not want a dispute and I have no dispute, I just want to put my own position. Just because the medical profession is unable to develop - and we all know psychiatry is in a very primitive stage - a fail-safe method does not mean that it does not recognise there is a risk, in the same way as doctors have come here and said even with physical illness - even in the case of Eisenmenger's - they cannot say 100%, "This woman will die if we don't carry out an abortion." It is a medical judgment.

Dr. Whitaker: I mentioned earlier ... I picked up somewhere in my reading of medical evidence that the risk was very, very small amongst pregnant women ... of suicide - it might be as low as 3%. Three per cent was mentioned by somebody. The point I made was that one has to ask oneself in the case not just of pregnant women generally but women who are pregnant and victims of rape or incest, what is the risk? They might figure largely in constituting that 3%. That is the point I am making. I wouldn't get the impression that it has been ruled out completely; it's very rare, but as I rate the thing ... it's not impossible of course, but it should be perhaps evident in a particularly severe case that there was a serious likelihood of suicide.

Chairman: But the psychiatric evidence I and we heard was that there is no demonstrable procedure available to psychiatry to establish that.

Dr. Whitaker: I do not think the particular question was put in the case of women who are pregnant and who are victims of rape or incest, what is the risk.

Chairman: I put that question to the witnesses and there was same conclusion.

Deputy McManus: I think you will recall that Dr. Clare did make the point that even when there is an absence in terms of absolute clarity or knowledge, that psychiatrists have to do the best they can and often they are wrong in terms generally of saying, "This person is suicidal or not" but no doctor I am aware of came here and said, "There is no risk to pregnant women ever of suicide."

Chairman: No doctor could say that. I accept that.

Deputy McManus: Right. We have to accept that.

Dr. Whitaker: Equally, Chairman, it's not possible to eliminate the factor of the X case because the referendum that attempted to do that was squashed, so we're stuck with it, whatever it means.

Deputy McManus: Exactly. The people have spoken.

Chairman: Thank you, Dr. Whitaker, for your very interesting reflections on this subject.

Dr. Whitaker: Thank you. I wish you well.

Sitting suspended at 12.23 p.m. and resumed at 12.30 p.m.

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