Chairman: We have a quorum. We are now in public session. Before beginning the hearings today, there are two matters I want to deal with. First, the minutes of our nine meetings between 2 May 2000 and 30 May 2000 have been circulated to the members. Are the minutes of those nine meetings agreed? Agreed. There are no matters arising from the minutes.

Second, arising from the meeting yesterday, 30 May 2000, it is proposed to print in-house and publish transcripts of evidence from representatives of the Psychologists for Freedom of Information and Dr. Harith Lamki together with the following documents received from Dr. Moane and Professor Magee - letter, 9 May 2000, and attached submission; submission to the working group on abortion, March 1998, and two attachments, articles from The Irish Psychologist; and research article, material supplied, 30 May 2000 meeting. Is it agreed that we print and publish the transcript and documents mentioned? Agreed.

We will move onto today's hearings.

Chairman: We are in public session and I would like to welcome the following representatives of Family and Life, Mr. David Manly and Miss Clare Lahiffe, to this meeting of the Joint Committee on the Constitution. We have received your presentation, which has been circulated to the members and laid before the Houses of the Oireachtas. The format of this meeting is that you may make a brief opening statement elaborating on your submission. This will be followed by a brief question and answer session with the members. We have until 9.30 a.m. and I am proposing to enforce that time limit. I want to draw your attention to the fact that while members of the committee have absolute privilege, this same privilege does not apply to you. We received your submission and I've read it. Would you like to elaborate on it?

Mr. D. Manly: Yes. Good morning Mr. Chairman, Deputies and Senators. The Family and Life was founded in 1996. It's a non-denominational and independent pro-life organisation whose work is educational and promotional. Its principal public promotion is its campaign for the right to life of unborn children and the welfare of their mothers. We have an office in Mountjoy Square and are supported by our membership and various affiliated groups throughout the country.

My name is David Manly and my helper is Clare Lahiffe. I have been engaged in pro-life work since 1992. My role in Family and Life is mainly spent in research, writing and editing material for publication. I'm the author of Family and Life's written submission to your committee.

The passing of the amendment in 1983 appeared to all supporters of the pro-life position to give legal protection in an explicit way to the unborn and to outlaw abortion for good even though the word "abortion" never appeared in the eighth amendment. The right to life of the unborn human being in Article 40.3.3o was a human right equal to that of his or her mother and, therefore, to all and every other citizen of this country. No one to my knowledge, whether favourable to the amendment or not, suggested that it permitted abortion and the courts gave every sign of sharing this understanding. So in 1992 those of us who had voted for the eighth amendment were in disbelief when the Supreme Court declared that the eighth amendment permitted abortion and, in particular, in the X case. With the one exception of Mr. Justice Hederman, none of the four judges of the Supreme Court examined how one person could directly take the life of another human being. They just appeared to assume that it could be done. To me and to many pro-life people this decision set up a serious contradiction in Irish law and removed the constitutional protection from the unborn.

The question, therefore, before us, before you is one that is a major concern to many Irish people. An indication of this, I think, is the huge response to the working group on the Green Paper and now to your own committee. The subject of abortion is not just a legal and a medical one for experts. It's a human and a moral question that calls for a response from every human being from whatever walk of life. People may be confused by the complexities of strange sounding medical terms but they know what abortion is. They know what happens in an abortion and they know what the results are for both mother and child.

I'll just finish by saying that Ireland has the advantage of seeing the effects of legalised abortion in other countries, especially in Britain and the United States. Contrary to the hopes of those who supported legalised abortion in both those countries, the numbers of abortions have soared there. The negative effects on women become clearer every year. Perhaps the most negative consequence of legalised abortion is its acceptance as normal and the trivialisation of human life. Thank you.

Chairman: Do you wish to add anything? Have you looked at the transcripts of the hearings that we have conducted so far?

Mr. Manly: I have looked at them briefly, not all of them. I got them last Monday. I did my best and I found them very interesting indeed.

Chairman: Do you want to express any view on them?

Mr. Manly: Well, indeed.

Chairman: Perhaps that's too general a question. Just taking the earlier witnesses, the various medical and professional persons who spoke to us, would you have any comment to make on their evidence?

Mr. Manly: On the very nature of abortion, there seems to be a certain amount of disagreement at exactly how it should be defined. But I think if you go and talk to your parents, the older people in the country who have seen how Ireland has changed over the last 30, 40, 50 years, they will have no doubt about what abortion is. It is rather an example of where a group of experts get together and they will almost inevitably start disagreeing. But the reality of abortion I don't think is in doubt.

Now I agree with Dr. Whitaker that there is a technical sense in which doctors have used abortion for decades. He was speaking of his young years, his childhood, but there's something he left out. When I was growing up - I'm a little younger than Dr. Whitaker - abortion was not mentioned in public. It would have been something that only doctors used. They wrote it up in their log books and it referred to a number of medical procedures. Now since 1960, 1965, abortion has come into popular use and today, well, you can see what the papers say. It's discussed on television and radio and young people think nothing of discussing it. But when they talk about abortion, they mean what doctors and our grandparents used to understand by criminal abortion. They don't understand it as, say, the inducement of an early birth by doctors, say, four weeks before the birth. That, technically speaking, is abortion.

Chairman: Not if -----

Mr. Manly: Not in the common sense.

Chairman: Not if the delivery is viable. Not if the child can live -----

Mr. Manly: Is it not the early, the premature interruption of a pregnancy?

Chairman: Where there's no hope of viability.

Mr. Manly: I don't think that's ----- I think abortion can be at any stage before the natural end. If the baby dies in the mother's womb, the doctors will induce the delivery of the dead body. That is an abortion. And when they write in their log book, they put abortion. Now that is not what the ordinary person understands and that is not really what this whole dispute that has been disturbing Ireland over the last 15, 20 years is about.

Deputy J. O'Keeffe: One of the core problems here is in relation to definition, and if you've read the reports of the hearings, I think at this stage I must be listening to about the twentieth different definition of abortion. From that point of view, do you not accept the near impossibility of getting a consensus on an issue where in fact there is no agreement on what the definition of that issue is?

Mr. Manly: Yes, I do sympathise with you. You've heard so many different words and speeches and definitions but let me put it to you this way. Thirty, 40 years ago if you called a doctor an abortionist you couldn't call him anything worse. An abortionist in those days was someone who doctors would not even think of speaking to or working with.

Deputy J. O'Keeffe: An abortionist in that sense was somebody who was breaching the 1861 Act and who was carrying out illegally -----

Mr. Manly: Yes, for money or for other reasons was deliberately killing the human being of a healthy woman. I mean in that sense we're talking about criminal abortion. Now, if you come along today and say that Ireland's obstetricians and gynaecologists over the years have been performing abortions, you are really calling them abortionists. Now, I don't think any of the people who appeared before you would accept that. They would be highly indignant. They know they haven't been performing abortions.

Deputy J. O'Keeffe: But from that point of view, would you not accept the need for a great degree of sensitivity in the way people express themselves because of the complexity even in relation to definition, that one has to be careful how -----

Mr. Manly: You have to be careful, yes.

Deputy J. O'Keeffe: ----- and sensitive in the way the issue is dealt with?

Mr. Manly: Yes, indeed you have to be careful.

Deputy J. O'Keeffe: Following on from that then, we've had very substantial evidence here, and in particular from the masters of the maternity hospitals, that from the point of view of saving the life of the mother there are certain rare conditions which crop up regularly, rare but regular -----

Mr. Manly: Yes.

Deputy J. O'Keeffe: ----- where abortion is necessary. I think that's a fair summary of the evidence we got from quite a number of medical experts.

Mr. Manly: Yes.

Deputy J. O'Keeffe: If that is so, and it's difficult to discount that evidence, would you not feel then that there would be major complications in proceeding with a constitutional amendment which would be framed on the basis of a total ban on abortion?

Mr. Manly: Yes. I think, to take your advice, you have to be extremely careful about what you call abortion. Now, in these particular cases I would follow Dr. Eamon O'Dwyer and some of the other doctors, Dr. John Bonnar, they are not in the popular sense abortions. The object of the doctor is to heal the mother, not destroy the child. If the mother was well, he would make no intervention of this sort. Once again, in 1983 the Constitution stated the right to life of the child. People said "Women will die". Prominent politicians said "Women will die". No women died. I don't think there was even a case of a woman having to leave this country to get an abortion elsewhere for health reasons because, if there was, wouldn't the papers have proclaimed it from the house tops? In fact - this has been said to you so often - Ireland's maternity record is first class.

Deputy J. O'Keeffe: But to get back the point of the medical evidence-----

Mr. Manly: Yes.

Deputy J. O'Keeffe: -----in particular from the three masters, who are at the coalface, as it were, it seems fairly clear from that evidence that they would feel that a total ban on abortion would have implications, as far as they were concerned, for what they call "normal medical practice" and, in particular, in situations where the life of the mother is at stake. You will understand our deep concern to ensure that whatever changes might be proposed would not affect the life of the mother in such situations.

Mr. Manly: Yes.

Deputy J. O'Keeffe: From that point of view, as a group who genuinely bring forward an argument to which I am listening, do you not see the difficulty about a proposal in relation to a total ban on abortion, either constitutionally or legally?

Mr. Manly: Yes. I think in that case there are two things I would like to say. First of all, the fears of the three masters have to be offset by the statement of the Institute of Obstetricians and Gynaecologists, which is signed by the chairman, Dr. John Bonnar.

Deputy J. O'Keeffe: We had him in.

Mr. Manly: I know you had. I won't go into it all because you have heard it. He said that what obstetricians have been doing over the years - these particular kind of treatments - he said they were not abortions. He didn't quite say it as briefly as I'm saying it. That statement, I know from an obstetrician I've talked to, was hammered over, was worked on, was passed backwards and forwards for months. It is so short but it does make that one point - they are not performing abortions.

Chairman: The masters accepted that they were very much part of the consultation process in relation to the statement. I'm sorry to interrupt Deputy O'Keeffe, but there is one point I want to put to you. You made judgments about particular medical practitioners, but Professor O'Dwyer spoke to us. I specifically questioned him on the question of the Eisenmenger syndrome. He concluded his evidence by saying "I wouldn't quarrel with the people who take the opposite view or different view, and say that you have to interrupt the pregnancy. That's their view, and I respect that view, but there is another side and I think that it is only fair to be objective". That was Professor O'Dwyer's view of that particular problem. In other words, it was an area where he had to recognise a diversity of clinical judgment.

Mr. Manly: Oh, indeed, yes, yes, I know. There is a difference of opinion. At the end of the day, people are going to differ, just as scientists differ about various things. I don't think you can get complete agreement on this, sadly.

Chairman: How can we put a matter to the people where there is a diversity of clinical judgment?

Mr. Manly: How can the institute of gynaecologists put a statement to their members where, again, there is a difference of opinion? There were some people who didn't agree with that statement. This, I think, is the very nature of realpolitik, democracy. There are times when we have to say there is a divergence here. It is not just a question of majoritism - it is that we should protect, I think, the life, rather than, say, the liberty. It is a question of taking the safer course in this whole thing of mother and child.

Deputy J .O'Keeffe: I understand the careful framing of the position of the institute and the great deliberation that went into it, word by word. What is clear to us from it, however, is that there is an acceptance by the institute in the letter under the hand of Professor Bonnar, that there are certain rare cases - "exceptional situations" was the wording he used - where failure to intervene may result in the death of both mother and baby. So there is an acceptance, as a matter of fact, that there are these exceptional circumstances-----

Mr. Manly: Yes, there are.

Deputy J .O'Keeffe: -----where failure to intervene could result in the death of both mother and baby. The further evidence we have from the three masters of the maternity hospitals is that, in some cases, that intervention amounts to an abortion.

Mr. Manly: It is not a word I'd like to use.

Deputy J .O'Keeffe: It amounts to a termination. The only possible approach to be adopted is to terminate the pregnancy in those rare cases where it is necessary to save the life of the mother.

Mr. Manly: Yes, but the institute avoids using the word "terminate". It says "a loss, inevitable, of the child due to its immaturity".

Chairman: The unavoidable death of the baby.

Mr. Manly: Yes, I have it here.

Deputy J. O'Keeffe: Herein lies the core of our difficulties.

Mr. Manly: That is terribly important. A woman who goes to an abortion clinic goes for one sole purpose - not because she is necessarily sick - it is that that human being she is carrying be taken away from her. What the obstetricians, gynaecologists are doing in hospitals when these various rare disorders occur is, first of all, to try to save both. There is a world of difference. I am not a lawyer and I don't draft laws, but that is their job. If the Department of Finance can draft complicated laws to make us pay our taxes and to avoid the big companies from filtering away things or avoiding .... such complexities and complications in that field are taken head on, as part and parcel of their work. With the political will, we should be able to produce a-----

Deputy J .O'Keeffe: We all understand the complexity of the situation we are dealing with now. Despite the good intent of the doctors in the situation described, it is clear that in those exceptional situations, what they are doing is the intentional killing - I have to use the word - of the unborn child because it is absolutely necessary in the medical circumstances. In that situation, you actually have come up with a proposal in your submission for what you suggest should be now added to the Constitution. It is as follows:

Where abortion is understood to signify the intentional killing of the unborn, no law shall be enacted nor shall any provision of this Constitution be interpreted so as to render abortion lawful.

Even in relation to that proposal, do you not understand the difficulties that could arise in the context of the circumstances I have outlined in the maternity hospitals?

Mr. Manly: Yes, I can understand difficulties arising, yes.

Ms C. Lahiffe: May I say something?

Deputy J. O'Keeffe: Of course.

Ms Lahiffe: I think the whole problem with defining abortion is the fact that we are not using the word "intent", or the word "intent" is being misunderstood. Abortion, as we see it, is the direct intentional killing of the child for the sole reason of killing the child. Surely, we can come up with some sort of definition whereby abortion is defined as the direct intentional killing of that child. It is the intent that I think we need to look at. Women going for an abortion for social reasons have got that intent. Any doctor performing a medical procedure where it is necessary to save the life of the mother, surely should not be seen in the same light because it is a different intent.

Chairman: But no matter how we formulate the standard - suppose we were to put into the Constitution a phrase redefining abortion, prohibiting abortion as so defined - there's still going to be a controversial court decision on whether the intent was present or not in a given set of circumstances in a hard case. Isn't that the difficulty you have when you enter this world of constitutional prohibition - that the Supreme Court has to construe the Constitution in a particular context?

Mr. Manly: Yes it is, but the intention is one thing, the action is a second thing. An action which of its very nature is an action that takes away someone's life - an assault on the right to life of the unborn - that itself is not something that the doctors themselves do.

Deputy J. O'Keeffe: The problem isn't just that in the situation we are discussing ... that the action is intentional, even though the motive is good. The motive is to save the life of the mother, but the action is, in fact, the intentional termination or killing of the unborn because it is considered in that situation to be absolutely necessary to save the life of the mother. So, isn't it here that we have the problem about intent? Intent for a proper motive-----

Mr. Manly: Intent, yes.

Deputy J. O'Keeffe: -----would be different.

Mr. Manly: Yes.

Deputy J. O'Keeffe: And you would say the intent for ... of having the termination for a motive which would be other than the highest and the best would be different?

Mr. Manly: Yes.

Deputy J. O'Keeffe: I accept that, of course, but the action is the same.

Mr. Manly: The action may be the same, but take a doctor who gives a strong pain killer to a patient or performs a heart operation; that patient may die. Is that doctor taken up for manslaughter or murder? No.

Deputy J. O'Keeffe: But there is nothing in the Constitution or in the law prohibiting him from so doing.

Mr. Manly: Well, I mean, if he did it deliberately he could be definitely taken up. The action there is not a death-dealing action, but the possibility ... a side effect of that action can be, in the individual case. This idea of an action with two effects, the intended effect and the unintended or unforeseen effect, that is something which runs through the law in so many different areas. I think we should be able to work out a formula that distinguishes these two things, but again that is for the drafters of the law.

Senator Dardis: You speak quite frequently about the law and you make the comparitor with the Department of Finance in that they can deal with very complex issues. Now, accepting that there are no problematic areas at the extremes, we are getting to a point where there's a ... our difficulty is defining the line, so to speak.

Mr. Manly: Yes.

Senator Dardis: How can that be done through the Constitution rather than by law, because everything you have said to us suggests that you see the law as being a solution to the complexity?

Mr. Manly: Well, in a way, the eighth amendment, the 1983 amendment, did give you the solution, because it explicitly stated the right to life of the unborn child. Now, in doing that it makes it impossible legally that that individual should ever be the object of a direct assault on its life. And this, I suggest, is the contradiction that the X case has brought into it. It is the contradiction, really, that any democracy allows abortion. It does this because ... what is the essence of democracy but the unconditional respect for every human being? That basis ... it is the respect for the right to life, because, just as Mr. Justice Hederman said, if there's no right to life there's no rights at all. Now, if that right to life is recognised in law then there never can be from anybody at all - doctors or anyone - a direct assault on that life.

Senator Dardis: But you used the words "in law" again. And what we ... so, the point I am making to you is that there are two aspects - there's the constitutional aspect and there's the legislative aspect.

Mr. Manly: Yes.

Senator Dardis: With regard to the original amendment-----

Mr. Manly: Yes.

Senator Dardis: -----there was an unintentional effect, an entirely unintentional effect. By assertion of the amendment-----

Mr. Manly: Yes.

Senator Dardis: -----something quite unintentional happened.

Mr. Manly: That was?

Senator Dardis: The X case.

Mr. Manly: Yes.

Senator Dardis: As a result of the insertion of the ... not as a result of it, but on the basis of the interpretation of it.

Mr. Manly: Yes.

Senator Dardis: We come back to these words like "understood" and "intentional", and we insert those in the Constitution on the basis of your suggested wording-----

Mr. Manly: Yes.

Senator Dardis: -----we're back to the courts again to define "understood", to define "intentional". Is it not the case that it would be much simpler to define those words in legislation, to put into the Act and the preamble to the Act, what "intentional" means, what "understood" means?

Mr. Manly: Well, maybe so. Again, I am not a lawyer, but the-----

Senator Dardis: Nor am I.

Mr. Manly: The legislation must flow in this case from the Constitution. And, I mean, let's put it this way, when a country legalises abortion it allows a class of people - pregnant mothers - to do away with another class of people - children - in certain circumstances, maybe under so many weeks or something like that. Now, they can do this without recourse to the courts, without due process. Isn't this an extraordinary thing, now? And this is happening in democracies around the world. Does that not strike you as something that is just incredible; that one class of people will have the right to end the lives of another class of people? It doesn't make sense.

Senator Dardis: That's not at issue. You have ... I think I accepted the point that there is an area-----

Mr. Manly: Yes.

Senator Dardis: -----that is extremely difficult, irrespective of one's perspective.

Mr. Manly: I accept it's extremely difficult, yes indeed.

Chairman: Thank you very much for your assistance this morning. I would like to thank you for your contribution and I will suspend the session for two minutes until the next witness takes his place before the committee.

Mr. Manly: Thank you, Mr. Chairman, and thank you, members of the committee.

Chairman: Thank you.

Sitting suspended at 9.38 a.m. and resumed at 9.40 a.m.

Chairman: We are now in public session and I would like to welcome Mr. John Wood of the Christian Solidarity Party and he is accompanied by Dr. Phil Boyle, Donal Corrigan, solicitor, and Enda Dunleavy, to this meeting of the Joint Committee on the Constitution. A letter was received from your party and, as you're an organised body of opinion on this matter, we thought it appropriate that you should be asked to speak to us. So the format of this meeting is that you may make a statement elaborating on your position, if you wish, which will be followed by a question and answer session with the Members. I have to draw your attention to the fact that while Members of this committee have absolute privilege, this same privilege does not apply to you. I0'd ask Mr. Wood to make an opening statement outlining your position and questions will then be put by the members and you can decide who you wish to respond to them.

Mr. J. Wood: Very good. Thank you. First of all, I would like to thank you, Mr. Chairman, and the members of the committee for inviting the Christian Solidarity Party to be represented here today. CSP is a registered political party and we have been active in contesting elections since our foundation in 1992. As a political party we are interested in every aspect of the political process and, as such, we have policies on a broad range of issues. However, the right to life and the protection of that right is one of our core values. It is because of this, because we value human life so highly, that it pervades all our party policies.

With regard to the matter being considered by this committee, I would like to briefly mention five aspects of our policy. Firstly, the right to life is the most basic of all human rights and, on this basis, we would like to see it explicitly expressed in the Constitution. It is our party policy that human life should be respected and protected from conception until natural death. Secondly, we acknowledge the difficulty that exists in finding a format and format of words whereby this can be achieved. However, we believe that the problem is not intractable and that a formula can be found that would provide legal protection for the right to life of the unborn without posing a threat to the life of the mother. In no circumstances should medical treatment be denied to a woman because she is pregnant. This clearly does not include direct abortion.

The third point is that Article 6.1 states that the people, in final appeal, have the right to decide all matters of national policy. It is our policy that the decision of the people in the 1983 amendment has been interpreted in the X case in a way that was not foreseen by the people in the referendum and, as a result, has reduced the level of legal protection to the unborn. It is our policy that the only way to restore that level of protection is to give the people an opportunity to have their say in another referendum.

Fourthly, we don't wish at this stage to propose any specific form of wording but our approach would be firstly to retain the existing acknowledgment of the equality of the right to life of the mother and the unborn; secondly, to get over the difficulties posed by the X case, we propose a specific prohibition on the deliberate and intentional destruction of the unborn human life. Our fifth point is that we believe that structures should be put in place by the State to support women in crisis pregnancies. Thank you, Mr. Chairman.

Chairman: Thank you very much. Havew you looked at the transcripts of the evidence we heard from the masters of the various hospitals and the obstetricians?

Mr. Wood: Yes, we have.

Chairman: And they seem to envisage that direct abortion is, in very rare cases, but regular - regular, but rare, I think, as Deputy O'Keeffe formulated it earlier - is an option they would wish to entertain.

Mr. Wood: Yes.

Chairman: Have you any comment to make on that?

Mr. Wood: Yes, we have. Again, I think this, to a certain extent, comes down to the definition of what we mean by an abortion. I realise that your committee here is looking at that issue. We would define abortion as the deliberate destruction of unborn human life and while we acknowledge----- Obviously, you've got, I think, different opinions from some of the medical experts that came in but there did seem to be a convergence that, at some stage, it may be necessary to terminate the pregnancy in order to protect or to save the life of the mother. We acknowledge that this situation can occur and again we would look at it not in terms of an abortion, but as an action which indirectly results in the death of the unborn. Now I'd just like to ask Dr. Boyle, who is a medical practitioner based in Galway..... he would like to have some comments on that.

Dr. P. Boyle: I am a general practitioner working in Galway with a special interest in women's health, infertility, and I do some crisis pregnancy counselling as well. And I'd very strongly agree with the obstetricians and the statements and I read through them as well that it is necessary at times to induce labour to bring on a premature delivery of unborn children. But I would see that as a distinct and separate thing from deliberately destroying the life of the unborn child and what we would like to see is that the life within the womb would be recognised as a human life, as a citizen of Ireland, that would have equal protection and right to life as you or I would have and that sometimes as a result of necessary medical treatments in rare circumstances, it may be required to induce labour early where the probability of that life continuing to exist is significantly reduced and, at times, would be extremely unlikely and the child would die.

But there is a very distinct difference in that between actually taking the child's life, for example, as would be commonly practised with an abortion procedure in the UK where potassium fluoride is injected directly into the vein, of the umbilical arterial vein, to kill the child and then the dead baby is actually delivered. What we would propose would be that a live baby be delivered at whatever stage of the pregnancy it's at and that we would treat that patient, if you like, who is born in that circumstance as a terminally ill patient if they're born prior to 24 weeks and that they're likely to die at that stage but they would be treated with dignity, with the respect that's due to all human beings.

We'd say that it's a regrettable but, on occasion, necessary side effect of medical treatment to save the life of the mother in those rare cases that were outlined but we think there's a fundamental difference between saying we're going to destroy this life because it's like the pregnancy is being viewed, if you like, as a disease or an illness that has to be destroyed, like a bacteria or a viral infection, whereas we're saying that is not the case, we respect this person, we bring on pregnancy to save the life of the mother, the unfortunate side effect is that the baby is going to die most likely on the basis of our current medical knowledge. But, in time, perhaps babies at 20 weeks and 18 weeks, we may come up with the technology to keep those babies alive because originally the term abortion applied to babies who were born at 28 weeks and we now know that we can keep babies alive for 24 weeks onwards. And it is possible with advances of medical science that perhaps younger and younger babies may be able to be kept alive outside the womb at that stage.

In summary again, what we'd be looking for is that, you know, the taking..... the deliberate taking of a life, like injecting potassium fluoride into a vein to kill the life and deliver a dead baby, that we're not in favour of taking human life, born or unborn. We're in favour of induction of labour if that is the only necessary medical means to save the life of the mother and, unfortunately, it results in the unwanted death of a child.

Chairman: For legal and constitutional purposes you've expended quite a number of words there. Is it really possibly to move very far beyond what was provided for in 1983 in terms of a concrete constitutional restriction?

Dr. Boyle: I think it is because a similar principle would be applied in cases of euthanasia and there was a case in point that was brought to the attention of the media about a year ago about a Dr. Moore who was being charged for taking the life of his patient. It was a terminally ill patient. His primary intention was to relieve the suffering of the patient by giving medications to the make the patient comfortable. A foreseeable but undesired side effect was the death of the patient. Some people were not happy with that and they challenged his practice to say that he killed this person. He said no, "I applied good medical care and an unintentional side effect was the death of the patient.". So, it is currently good medical practice and it is also recognised in law that this whole thing of intention is a recognisable thing, whereby you can foresee a side effect where somebody will die but that is not the primary intention of the action and I think it could be enshrined in the law.

Chairman: But in law and jurisprudence there is a distinction between intention to commit a particular act and motive.

Dr. Boyle: Yes.

Chairman: It seems to me what you are talking about is motive in relation to the medical profession rather than intention in the legal sense.

Dr. Boyle: I would be talking about the intention to induce the pregnancy, induce labour. The motive is to save the life of the mother, so you have got two patients, you have the mother and her ongoing child and your motive is to save both of them if you can at all. In some circumstances that is not a realistic option and there is a way whereby you can save one of them by inducing labour, but there is a world of difference between actually taking the life of a child and inducing a labour whereby the child dies of natural causes and is treated with the respect and dignity due to human people, whereby the child would have a burial and be treated like a person whose loss would be grieved and recognised as such. So, we would seek that the unborn person be recognised as a citizen of this State and have the same protection to life as all citizens do.

Deputy J. O'Keeffe: Could I ask you, in your view are there abortions carried out in Ireland as of now?

Dr. Boyle: It depends again on the definition of abortion - it is a very wide ranging kind of a thing because abortion covers spontaneous miscarriages as well as, you know, therapeutic interventions and the therapeutic interventions that are carried out, yes they are carried out now for cases, for example, of pre-eclampsia, because some of the definitions in the text books have not caught up with current medical advances whereby an abortion is defined as inducing labour prior to 28 weeks. But the advantage is now that with advances in medical science babies born prior to 28 weeks, despite being technically classified as abortions, can actually live.

Deputy J. O'Keeffe: So, simplifying it for non-medical people, there are therapeutic abortions carried out for good reasons, good medical reasons-----

Dr. Boyle: I would say that there is early induction of labour, but not destruction of the life.

Deputy J. O'Keeffe: You want to see a regime in existence, a constitutional legal regime in existence which would permit such situations to continue.

Dr. Boyle: Yes.

Deputy J. O'Keeffe: Outside of that, outside of terminations that are carried out for good therapeutic reasons-----

Dr. Boyle: You could say induction of labour. It is more palatable

Deputy J. O'Keeffe: Well then, inductions of labour. There are not, in fact, any other inductions of labour carried out for wrong reasons in Ireland - or as you would see it, wrong reasons.

Dr. Boyle: I am unclear as to what a wrong reason would be.

Deputy J. O'Keeffe: Well what I am really trying to get at is apart from, can I call it therapeutic abortions, would that be an abortion that you would consider acceptable?

Dr. Boyle: Well, we are talking, yes, early induction of labour is what we are talking about.

Deputy J. O'Keeffe: Yes. The realistic situation is that we do not have other abortions carried out within the country at the moment.

Dr. Boyle: The deliberate destruction of unborn life, no.

Deputy J. O'Keeffe: Am I correct that that is the practice? If people want other abortions they go to England. Is that not the situation?

Dr. Boyle: That is correct, for social reasons, yes.

Deputy J. O'Keeffe: What am I trying to get at is the practical situation as it exists today.... you are satisfied with in so far as it applies within the country?

Dr. Boyle: Well, you are saying that I would be satisfied that, for example, 6,000 women per year go to------

Deputy J. O'Keeffe: No, sorry, I want to come to those separately, but in so far as what happens within our hospitals here in Ireland, you have no complaint. What is happening is good medical procedure.

Dr. Boyle: I believe that there is good medical practice with the obstetricians-----

Deputy J. O'Keeffe: And our legal, ethical, constitutional framework covers what is happening there.

Dr. Boyle: I do not believe that it is covered sufficiently yet. I believe some of the masters had some difficulty and concern about what the legal standing is and I think that it could be clarified further to say that early induction of labour, whereby you do not actually take another person's life is an acceptable practice, but the deliberate destruction of a human life and delivery of the dead baby would be medical malpractice.

Deputy J. O'Keeffe: But to get back to the three masters who were mainly, with slight variations in nuance, singing from the same hymn sheet. The general impression I got was that a total ban on abortion in the Constitution could cause problems to them in relation to existing medical and therapeutic practice.

Dr. Boyle: And I would agree. I would feel that something like the current law that is there, Article 40.3.3o.... that perhaps if there is a clause added on to that, that that might give us further clarification, that is to say that the deliberate destruction of unborn human life would be prohibited, but to induce a labour to bring on a pregnancy whereby you do not actually take a person's life, but you resolve the problem of the crisis pregnancy causing the medical condition, you do not take the person's life but it is likely the life on the basis of current medical knowledge would expire as a result of the treatment - I would find that acceptable. But, I do think it could be clarified further by adding on a clause.

Deputy J. O'Keeffe: But if you go back to the Green Paper and the proposal that we adopt option one. Option one is an absolute constitutional ban on abortion.

Dr. Boyle: Yes.

Deputy J. O'Keeffe: You accept that an absolute constitutional ban on abortion without provisos to cover the situations we are talking about, the medical and therapeutic situations we are talking about, would not be acceptable.

Dr. Boyle: To me that is not acceptable in the light of..... but again, what you would need is..... I know that our proposal says we propose, you know, option one as the only one that will actually respect the right to life of the unborn person, but I would think it would have to be modified to a degree to put in this clause to say that in cases where we have to induce labour but not destroy the life to save the mother.....I think that that would be preferable.

Deputy J. O'Keeffe: So, if you cannot accept in the light of our present discussion option one as it is baldly stated - an absolute unconditional ban on abortion, we are then into the problems of definition. How would you modify this absolute constitutional ban to take on board the kind of situations we are talking about?

Dr. Boyle: Again, the ban would be the direct taking of a human life as opposed to early induction of labour. I would also include things like, for example, a hysterectomy where there is a pregnant uterus and the woman has uterine or cervical cancer and the medical treatment is a hysterectomy - so you are removing the life and the womb at the same time as well - to be included in that as well.

Chairman: Thank you very much for your assistance this morning. I would like to thank all of you for coming here today. We did not anticipate there would be four of you, but we are observing strict time limits this morning. Thank you for your assistance and I will suspend the session for two minutes until the representative of Pro-Life take their place.

Sitting suspended at 9.58 a.m.and resumed at 10.00 a.m.

Chairman: We are now in public session and I would like to welcome the following representatives of the Pro-Life Campaign, Professor William Binchy, Dr. Berry Kiely and Ms Caroline Simons, to this meeting of the Joint Committee on the Constitution. We received your presentation, which has been circulated to the members and laid before the Houses of the Oireachtas. It is at page 181 of the book. In fact we received quite a number of your submissions and they have used as a working document by the committee in its consideration of the issue as the basic working document, in fact, in the context of the pro-life argument.

The format of this meeting is that you may make a brief opening statement, if you wish, elaborating on your submission which will be followed by a question and answer session with the members, and I have to draw your attention to the fact that while members of the committee have absolute privilege, this same privilege does not apply to you. Professor Binchy-----

Professor W. Binchy: Thank you very much.

Chairman: Professor Binchy, you will be interested to hear that it is my personal opinion that you have a qualified privilege but I am not sure whether the Houses of the Oireachtas agree with me on this point.

Professor Binchy: Thank you, Mr. Chairman. I would point out that we are definitely relying on that advice on your part there.

If I may, just in response to your marks there, thank you very much Mr. Chairman and members of the committee, for giving us this opportunity. We think it is a privilege. We think it is an opportunity to present our views to you and to have an exchange of views. We hope that it may not necessarily be the last communication on this issue.

I think it is fair to say that this, as far as I know and I think our colleagues know ... I cannot think of any other country in the world that has approached the issue, this troubling issue of abortion, in such a deliberate, calm and comprehensive way as this committee has done. I can think of no precedent internationally and I think you are to be congratulated for that.

I am going to give you a brief presentation. I will say a few words. On my left, Caroline Simons will say a few more and Berry will say a few more, and we would hope to have completed our opening remarks in about nine or ten minutes, certainly no more than that.

I would say to you just, and I do not think it will come as a surprise to you, that this issue is a very important issue because it is an issue of human rights in our judgment. It is an issue which----- Every generation, I suppose, has its blindness towards membership of the human community. If one looks back on history, both a long time ago and in the recent past, certainly the last century in Europe, for example, there have been blindnesses to the humanity of certain members of the human community, and I think it is perhaps the experience of the present generation that the unborn, for some people, have become invisible as regards their humanity. And I think it is important really that one should be conscious of the fact that all members of the human community are worthy of democratic, equal protection and that it is necessary for society, if you like, to be conscious of the danger of excluding from its reception and perception all members of the human community.

That is not to say that members of the community have equal power, have equal abilities at any particular stage. There are people of great intellectual ability, great physical ability obviously, and they differ sharply from those of their peers. When we are dealing with the unborn, we are dealing with a member of the human community at an early stage of development, at the correct stage for the development of the time - one can ask no more of the unborn than to be at that stage of development at that time - and nonetheless, that unborn member of the community requires equal protection.

We would stress that because we do see this ultimately as an issue of values. Much of the debate at this committee has been in the specific context of medicine and the treatment of pregnant women, but the wider international picture is clearly one of values and the value to be ascribed to the unborn.

Our argument, as you know, is that essentially it is important when you are dealing with members of the human community that you do not directly take and intentionally take the life of a member of the human community, and on that basis we suggest that abortion is wrong. We equally and emphatically say that medical treatment for pregnant women is of course essential. It should be given, is given in Irish hospitals, where the medical treatment experience is absolutely up there at the top of the world internationally. I think Irish hospitals can hold their heads high in this area in terms of the success they have in the treatment of pregnancies without an abortion regime, and it is crucial that that distinction be retained and supported by the law.

Our concern is that the X case misunderstood the relevant legal principles; introduced a principle which is at variance with the medical ethics guidelines of the Medical Council, at variance with the Institute of Obstetricians and Gynaecologists, at variance with the recommendation of the IMO and at variance with daily experience in Irish hospitals today. And what we are looking for, legally speaking, is legal support - no more and no less than legal support - for the existing medical practice in Irish hospitals. Now we are not looking for something theoretical and abstract and metaphysical. All we are looking for is the assurance that the law comes in behind existing medical practices. We have internationally an interesting situation, which is that medical ethics have reiterated their position after the X case on two occasions, making it clear that abortion is contrary to medical ethics whilst medical treatment is entirely consistent with it and a necessary part of it, and what we are looking for essentially is that legal support.

I am not sure if I have broken my three minute regulation there, but maybe Caroline can take it up at that point.

Ms C. Simons: I will be briefer just to make up for it in case you did.

Chairman: They are self-denying ordinances but the exchange is of value. You know, to exchange opinions ... there is no pressure.

Ms Simons: I do not have an awful lot more to add on it because we are obviously going to be responding to detailed questions. The one thing I have noticed from the attempted detailed read I did of all the transcripts of the medical witnesses that you had last week is how much common ground there is. I think everybody has seen at this stage that doctors are primarily concerned in a number of particular types of conditions in pregnancy to act in a particular way, and Dr. Kiely will be dealing with that in more detail later, but these----- There is nothing new in the treatments that are being meted out to women in these conditions. There may be new methods of dealing with them, but the actual procedures have been around for a long time, by and large, and it seems to me that an awful lot of the difficult ... the apparent difficulty now is that there are a certain few who would choose to characterise this kind of treatment of women in pregnancy as abortion and therein lies the problem.

It was interesting to see the different witnesses and their ideas of what abortion was, and I think I was encouraged to see one of the ICTU representatives saying, well we all know actually what abortion is. The doctors said the same thing, that, you know, it is in common exchange; it is used in common conversation among people in the street. But then she continued to say an abortion is an act which terminates a pregnancy, which we all know a Caesarean would do.

I think we are all very, very clear on the points we want to particularly address today and, that is, abortion, as it is commonly understood, and that is, an act which is done with the sole purpose of terminating the life of the foetus, not terminating the pregnancy. Because if you terminate the pregnancy and have a live infant, you have not succeeded in your abortion. And I think we need to try to be clear in relation to that. I do not know if Dr. Kiely wants to add anything there.

Dr. B. Kiely: The point that I would actually like to make, because I think we can't make it often enough and we can't do enough in this area, is that as well as looking at abortion from the point of view of the legal situation, we must also address the issue of women who have unwanted pregnancies and what we can do to reduce the numbers of those women who will opt for abortion, and provide real alternatives. There is an awful lot that can be done and that's the message that, I think, doesn't perhaps get through enough to people. There is a certain sense, when you talk about this issue, of people sort of saying "Well, you know, there's nothing we can do about the 5,000 or now nearly 6,000 women who go to England to have abortions" and that, therefore, this is all a little bit sort of academic.

In reality, I think, when you look at what people in other jurisdictions have attempted to do, there is an awful lot that can be done and that remains to be done. It has been done quite successfully in other places. Some of you are probably familiar with the work that's being done by the Caring Foundation in the United States where they found that getting women ... asking women who had had abortions to help them design their programmes for women with unwanted pregnancy, that using the advice and the help of women who had had abortions they were able to design advertisements and various other programmes which reduced ... which were actually effective and sort of reduced the incidence of abortion by figures like 30% and 40% after one month of just running this programme. Now, that's very interesting work. It would be nice ... I think it's important that we would see some of that being done here as well.

Another point - I think you've already had submissions on this so I won't delay on it - but the whole area of adoption. It was----- I think one of the most saddening aspects of reading the Trinity study on crisis pregnancy was the negative attitude that so many of the women had towards adoption. I found it hard to understand exactly why that would be. I suspect it has to do, in part at least, with the negative media treatment of adoption. I think, that again, is something which there is an awful lot we could do about and which, if we did do it ... if we tackled that particular issue and sort of gave a more positive approach towards adoption and explained it better----- A lot of people are not aware, for example, of the changes in relation to adoption, the various forms of open adoption which are now available. Even saying that, it should be a question of ongoing research to see ... to continue improving the manner in which adoptions are organised and the way in which they function.

All of these factors can actually significantly help a woman who is faced with an unwanted pregnancy. While I appreciate the brief of this committee is purely to look at the questions of legalisation and the law surrounding abortion, yet I think I would make a plea for us not to leave it at that. At the end of the day when we have, hopefully, got our constitutional amendment and, with or without legislation to back it up, there will still be an issue there which I would hope even the people on this committee, having put so much thought and work into it, would continue to have an interest in that area.

Chairman: Thank you. Senator O'Donovan.

Senator O'Donovan: A couple of questions. First of all, thank you for coming in here, you are more than welcome. I think you made your submission very succinct and clear. One worry that I would have, as a lay person, is ... it has come across to me from all of the expert witnesses that have been in here and practically all of the groups, I'd say without exception ... that every group and every expert wished to see current medical and ethical guidelines as set out and current medical practice protected and retained. My difficulty, as a lay person, is when you hear the different definitions of abortion. Some people tell us that technically speaking where there is any ... I think somebody used the word "emptying" of the uterus - either direct or indirect ... whatever the terminology - that that in fact is technically abortion, that miscarriage would technically be seen as an abortion which is sort of educating me or confusing, I'm not sure which. How would you propose - my first question would be - in a constitutional amendment to protect existing good medical practice?

Professor Binchy: Well Senator, I think you're right in the way you read the situation. In other words, we know what we want to do in the sense that the witnesses who came before you were anxious to protect existing medical practices and then it's just a legal challenge to express that in language which incorporates existing reality. I think it's fair to say that the word "abortion" ... the word "abortion" as opposed to the whole philosophy that surrounds the direct and intentional taking of unborn life has no magic in this particular area and is not part of the legal code at the moment. I'm sure that point has been made by a number of witnesses. So we are not talking about the magic of a word here, what we are talking about is the basic philosophic principles which are easy to understand and are entirely humane, which is that you do not directly and intentionally kill other human beings. And that is really the crucial element here, the philosophic principle that underlies the relationship of people to people.

How should that be expressed? It can be done in a variety of ways. It can be done----- We've offered two possible manner ... draft amendments, one expressed in general principle, another more focused. But, we are not in any sense wedded to language ... not at all. If there is any concern on the part of anybody about specificity and tying matters down, then one just simply translates the concern for a specificity into more extensive language. It can be done, that's not problematic. It's relatively unusual, in a constitutional text, to have a long and detailed text, but, if necessary, that can be done. It can be done in a variety of ways by linking it into legislation and incorporating the two in the constitutional proposal and the legislative proposal ... the detailed legislative proposal in tandem. There are many, many ways of doing this, but the one certainty is that it is not a legal impossible task to translate existing medical practice and give legal protection to it.

It would be strange----- I think, an ordinary person who is not versed in law would be quite surprised to learn that everybody knows what they want to do, they know they want to give legal protection to it and in some way there is a legal incapacity to deliver on that. It is not at all impossible to do. What one does, as I say, is ... it has to be done, unfortunately ... there has to be an element of constitutional change here because the X case introduced a principle which we would argue is unjust in terms of the right to life of the unborn. But, the actual detail, the manner in which the constitutional amendment is linked into legislation, the degree of specificity is entirely a matter for those who are policy makers in this area. As I say, we are not wedded to any word and we are not specifically wedded to the word "abortion" appearing in any particular text.

Senator O'Donovan: Would it be fair to say that in addition to a possible constitutional amendment, which you would propose, that one would also need to have legislation maybe to define abortion legally? Because the worry I have, again as a lay person, that there has been ... the medical interpretation, that I gather from the various witnesses, of abortion is very wide and it would include maybe a definition that I, prior to this, understood as not being abortion.

Professor Binchy: You're right ... you're entirely right. In medical literature the word "abortion" can be used - my medical colleague here will confirm this - but the word "abortion" can often be used in terms of a natural termination of pregnancy where there is just a premature delivery. So, the word "abortion" used by doctors is not where one should look for a legal definition, if you follow me, here or a legal approach. That's medical terminology and there's nothing that one says critically of that. Doctors use their own language in this area. But, it's not so much the language that counts here, it's the activities that are done and the context in which they are done that's important - the principles that underlie the activities in question.

The doctors themselves are clear enough on what they're doing there. The Medical Council is entirely clear. I think we're clear in terms of our attitude towards those principles. So there's no lack of clarity about the principles in this area. You're quite right in saying there's a range of conventional definitions, both in the medical and legal world where the word "abortion" or "miscarriage" ... various words are used and they do, you are quite right in saying that, they carry a multitude of meanings. But, this thing is not going to be solved by looking up a dictionary and taking the definition one gets and sticking it into an amendment. That's not the approach that has to be used. The approach that has to be used is a principle based approach, linking it into the existing reality that we have all heard about over the last several weeks and giving that then the legal support. As I say, it can be done through an amendment alone, it can indeed be done through an amendment and legislation but it can't be done - I wish it could - it can't be done through legislation alone because, as long as X remains there the principle which that case incorporates is one which, if it were to be translated into practice by the medical profession, would allow for, effectively, wide-ranging and legally uncontrollable abortion.

Senator O'Donovan: Could I ask one further question of Dr. Kiely? You mentioned the position about the very sad saga that, whether we like it or not, we have approximately 6,000 people going abroad each year for abortion. It's an Irish problem which we will try to resolve. You mentioned the attitude towards adoption that ... I've rather a different view on that having regard to the fact that after the overthrow of Ceaucescu in Romania around '89 there were about 400 Irish couples went aboard and there are still ... even in the area where I live, I know several couples who have, unfortunately, maybe after a decade trying, been unable to succeed.

I can't figure out if there were 400 couples from Ireland prepared at least to travel to Romania, some of them two or three times, and went to a lot of trouble on the adoption issue, I thought we had a significantly positive attitude towards adoption as a solution. Quite rightly, one of the big issues, even though our committee may not have a brief in that regard, is the big problem is how do we reduce the 6,000 in Ireland by education or whatever? Maybe adoption is just one of the-----

Dr. Kiely: Let me clarify that when I talked about the attitudes to adoption I meant on the part of the pregnant woman. That was what came out in the Trinity study. For example, some of them had phrases in it which I personally found very shocking where a girl who was opting for an abortion when she was asked has she not considered adoption, her reply was that adoption seemed to her a worse solution for the baby than abortion was. That's the attitude I mean, that there are people there who would think that to give your baby for adoption is somehow cruel and is something that is even worse than to abort the child. It surprised me, I have to admit. I wasn't aware because like you I would be so aware of many couples who would dearly love to adopt and would be delighted to adopt and we have seen all the increase in the foreign adoptions and just how willing people are to help somebody and delighted to give a home to the child but it's not from that angle. It's more from the point of view of the girls who have the unwanted pregnancy.

That is very amenable to change because what underlines it, funny enough, is they at some level want to do good by their child, which sounds strange when you think that they are going the route of abortion but that's what we have to try to understand, the mentality of the girl in that situation. It is not a question of choice for her. She feels she has no choice and when the choice of adoption is put to her, that seems to her like a worse option. Those are things we have to research more and look at more in detail and see how we can approach them.

Professor Binchy: Could I just add one supplement to that? Two things that were understandably very heartrending for the mother would be the secrecy aspect and the finality aspect of adoption, that it's goodbye to your child forever more and it's a total termination of relationship. The whole trend, legally speaking, internationally now is towards open adoption. Elements of this have crept into the Irish system slowly, breaking away the notions of secrecy, for example, and the whole notion of the finality aspect can also in terms of goodbye to a child, never seeing the child again, that's the area were the heartrending pain came in. If those areas can be broken down and have a form of informal adoption which has been worked quite successfully - incidentally has been part of the culture of many countries for generations but is increasingly coming into the English speaking countries - that would take away some of the anxieties that the choice involves in those circumstances.

Deputy McManus: First, can I thank you very much for coming forward and putting so much work into the presentation and the documentation? I certainly agree that there is a lot of common ground and that's very hopeful. I would like to, though, come back to the points that you made, Professor Binchy, because there is an area where there isn't common ground in relation to the possibility of another constitutional amendment. Maybe you would comment first on the comments that have been made by medical consultants that the medical practice that they currently are able to carry out would be affected, impacted on, if there was an absolute ban on abortion, also, the view expressed very thoughtfully by Dr. Ken Whitaker and the review group that was set up to look at this issue and other issues in the Constitution where they clearly have taken a different route and have proposed legislation.

Professor Binchy: You're right. I think some doctors who are not versed in law feel that any dimension of law, looking over their shoulder as it were, is a source of concern and, therefore, any new dimension or potential dimension of law is another anxiety but that is not what we are proposing at all. On the contrary what we're proposing is what they do every day which at the moment is at variance with the law, even though that dissonance hasn't impacted yet at a practical level. As a result of the X case what the doctors do every day is at variance with what the legal principles are. All we're looking for is an assurance that what the doctors do every day has the support of law so any doctor who expresses concern that what we're proposing is to change practices is mistaken. What we're proposing is to ensure that the practices that doctors do receive the support of the law. You're right in pointing to a concern that has been expressed but that concern is completely misconceived. What we're looking for, as I say, is for legal support for the Medical Council guidelines, the Institute of Obstetricians and Gynaecologists, the IMO. What we want is that the law should support practices and the ethics that underly them rather than that it should be in conflict.

So we're not looking for any retrenchment of the law in this area but what we are looking for is the removal of the X ground which says that you can carry out an abortion in life threatening conditions. If that ground were to be implemented, international experience very clearly establishes that a ground which in itself seems when one uses the language that is used there to be one that is perhaps intuitively attractive but when that is translated into practice, it allows for wide ranging abortion in practice. What we want is for the kind of decisions that the doctors that you have had in front of you, that the decisions they make where they are concerned with two patients rather than with killing one of the entities that they're dealing with, that they do their maximum to save both lives in these circumstances and provide the best medical treatment. So medical anxieties in this area are, as I say, groundless, but what doctors should be concerned with is the existing situation which, legally speaking, hasn't translated into practice. But if it were to translate into practice would be a very great source of concern for all of us.

Deputy McManus: Maybe I'm a little dense so you're going to have to be a bit more specific.

Professor Binchy: You can discount...that's hypothesis.

Deputy McManus: No, I have difficulty...I accept the viewpoint you're expressing. It's just I have a difficulty understanding where it's going in terms of words in the form of a constitutional amendment. For example, it's quite clear from the evidence we have heard that there are very rare conditions where abortion is the treatment to save the woman's life and that it is quite clear that even though it is reduced danger there is such a thing as suicide among pregnant women and, indeed, that the proposal that I would have thought you're suggesting now in terms of taking out the X case decision was put to the people and rejected by the people already. So there are two aspects there that concern me, but I'm still not clear what you're talking about in terms of how the amendment would be framed. You have to explain it to me as a non-legal person.

Professor Binchy: Berry is champing at the bit so I'm going to let her in.

Dr. Kiely: Just one bit I have to clarify before William deals with the legal part if I might.

Deputy McManus: Okay.

Dr. Kiely: It's just in relation to your use of the term, the phrase "that abortion is necessary in some rare situations". There you would have to clearly define what you mean by abortion. If by abortion you mean ending the pregnancy, delivering the child but most people don't mean that, right? The better way of putting it is to say - and I think all of the doctors would agree with this - there is no situation in medical practice, there is no condition in a mother which requires the death of the child as part of its treatment. You do not ever need to kill the child in order to treat the mother. There are situations in which you may not be able to save the life of the child, right? One of the situations that was put to you, for example, was the very severe pre-eclampsia and the HELLP syndrome which might have occurred, let's say, at 18 weeks, 20 weeks before there's much chance of the baby surviving in utero but when you look at what's involved in those cases that maternal condition is extremely toxic to the baby in the mother's womb. In the majority of cases the baby dies in utero so there isn't that much that you can do about it and usually at that stage that you are terminating the pregnancy or inducing delivery in most cases the baby is already dead. In the cases where the baby might not yet have died you're left in a situation where this baby's life is already very much at risk in utero and possibly what little chance it has of surviving, it has a better chance if you deliver it early, even though you know that the chances may not - those are the sort of things, for example, that Dr. Keane was talking about. I think he gave you a very specific example in relation to it. Now, used in that situation, you may end the pregnancy, you may induce delivery, but there is no need to kill the child.

Deputy McManus: I was actually thinking of Eisenmenger's and Peter McKenna's - Dr. McKenna's evidence, which, I mean, I think, you know, there is a certain amount of discussion on that, but I really would prefer to concentrate on the legal aspect, because that's where my difficulty lies.

Ms Simons: Just in relation to Peter McKenna, I think there were some certainties made on that, which follows the various points - you may need to empty the uterus, and that was the word he used, and I would add, or the fallopian tube, but you don't necessarily intend to extinguish the life of the unborn child. The treatment may be to empty the uterus and for preclampsia, that is the treatment. For Eisenmenger's-----

Deputy McManus: He seems to have no difficulty using the word "abortion", but I really, that is not my central question here.

Professor Binchy: I think that Dr. McKenna quite fairly said that he is not fixated by language. He said: "I might call it an abortion, I'm quite happy for it not to be called an abortion." He has certainly said that in another forum I know, on the radio, but the bottom line is I think you're concerned about what we're trying to achieve and how we should achieve it, I think, are your concerns, Deputy, as far as I know. What we're trying to achieve, from a principle point of view, is clear, which is, if you like, one doesn't target an individual and take their life away and that one does not make a direct and intentional attack on anyone, whether they're born or unborn. But, of the nature of things and the context of pregnancy, where there's an intertwining of the mother's life and the child's life, treatment of the mother in these circumstances can have, and in some circumstances very definitely will have, a detrimental outcome on the unborn. Where the treatment of the mother is targeted towards the mother, even if the detrimental impact, including a lethal detrimental impact occurs to the child, that is morally acceptable and we would argue should be legally supported, but targeting the unborn child, seeking its death in these circumstances, which is in a conventional sense, as opposed to in the sense that some doctors use the term abortion, conventionally speaking, what abortion is about; in other words, that the continued life of the child is a concern and there's an attempt to extinguish the life of that child. That is what we would argue is not justified and which the law should not support. Unfortunately the X case, not just in the context of the suicide threat, but generally, does support the targeting of the child - the taking of the life, the intentional taking of the life of the child in these circumstances, it is not limited to the idea of providing treatment for the mother with detrimental consequences for the unborn child. So, X is bad, not simply on the basis of suicide, but also on the basis that it formulates a principle that allows for the targeting of the child. If one were to bring in a principle based on the targeting of the child and translate that into medical practice, the practicalities are that that would lead to wide-ranging legal abortion, in our view, and our view is based on pretty wide-ranging international experience.

Deputy McManus: Just one brief last question, because I appreciate time is limited. How do you define "unborn"?

Professor Binchy: How one defines it, one has to know what one means by it and what one is seeking to achieve. I think it's fair to say that the pro-life campaign is seeking to protect all of the human experience from conception to death and it is a question then, of affording protection. We don't believe in that long saga from conception to death that any particular moment in that journey, even if you're not particularly well-developed, mentally formed in the early stages or even in the latter stages if you're to some degree falling apart mentally or physically, we don't believe that on any stage of that journey one can create an artificial line and say, "before this line, no protection or less protection is given."

Deputy McManus: Thank you very much.

Deputy J. O'Keeffe: Good to see you again. We obviously haven't found a solution to the problem since you last appeared before the committee a couple of years ago. As of now we have the seven options in the Green Paper and option one is an absolute ban - a constitutional ban on abortion and I think it's clear you're for an absolute constitutional ban on abortion.

Professor Binchy: Yes.

Deputy J. O'Keeffe: Do you remember the discussions and the debates of the constitutional review group, which was headed up by Dr. Whitaker and on that group were some of the very heavy academic hitters in the country - constitutional experts, legal experts and so on. You would accept that that was a high-powered group of academics.

Professor Binchy: Well, if you're emphasising heavy, I would point out that physically I can-----

Deputy J. O'Keeffe: Pound for pound. But you'd respect obviously that their views have to be respected.

Professor Binchy: Yes.

Deputy J. O'Keeffe: The constitutional review group said in relation to the proposal to introduce an absolute constitutional ban on abortion, they said:

If a constitutional ban were imposed on abortion, a doctor would not appear to have any legal protection for intervention or treatment to save the life of the mother if it occasioned or resulted in termination of her pregnancy.

How do you react to that? Do we not have to give enormous weight to such a statement coming from a major academic group who have examined this issue very carefully?

Professor Binchy: You are right in what you say of course, but I think there's a world of difference - and this is said with no disrespect to the constitutional review committee, which was reviewing as many articles as there are in the Constitution, 50 or 60, something in that region...and this particular committee, which is focused on one very specific issue and which has had the opportunity of receiving - and this is crucial in this area - detailed evidence of submission from those who are actually in the business of providing medical treatment and that's the crucial element. I think what was wrong with the X decision was that the court in that case did not receive medical evidence at all, but, if one were to criticise the constitutional review committee, or at least depart from its recommendations, that committee did not receive, as I understand it, very detailed, comprehensive submissions and evidence such as you have received. And if you don't receive that type of evidence it is terribly easy to fall into the kind of trap that the court did, which is to not make the kind of crucial distinction it is necessary to make between, as I say, direct targeting of the unborn and the provision of medical treatment. When you phrased your question initially you said: "You, the pro-life campaign, are in favour of an absolute ban on abortion." The word "absolute" there I find a little bit scary as it seems to suggest...what about all those kinds of conditions that can affect women during pregnancy? Well, we are in favour of an absolute ban on abortion in the sense of direct targeting of the child, but we're equally in favour of absolute medical treatment being given - absolutely full medical treatment being given to the mother in those circumstances. I have a number of criticisms of the analysis as well as the recommendations of the constitutional review group you are talking about there, its recommendations in this area, but I think the simplest explanation for the error made, and the error is visible not so much in the recommendation as in the analysis, the error by omission, that's visible in the analysis, is that the working party made no, gave no evidence whatsoever that it was aware of the crucial distinction between medical treatment and direct targeting of the unborn. If one is not aware of that, one is definitely going to come to the wrong conclusion.

Deputy J. O'Keeffe: Of course, in relation to the wording, "absolute constitutional ban on abortion", I am merely quoting option one, which is the one you say-----

Professor Binchy: Yes.

Deputy J. O'Keeffe: Those are not my words.

Professor Binchy: I appreciate that.

Deputy J. O'Keeffe: If you say that the group was in error in coming to that conclusion because of lack of medical evidence, you're aware that we had a lot of medical evidence here and I'm referring in particular to the evidence of the three Masters of the maternity hospitals, which was very compelling and which, in effect, the conclusion appeared to be again that an absolute constitutional ban on abortion would not be acceptable to them because of the danger that it might inhibit or restrict ordinary medical or therapeutic practice in so far as saving the life of the mother was concerned.

Professor Binchy: Deputy McManus made that point, and the extent to which any doctor would have that misapprehension, all the committee can do in those circumstances is make it absolutely plain that the proposal - the option one proposal - is not intended to have such an effect and does not have such an effect. In fact, on the contrary, it is designed to support existing medical practices rather than to change them and if the doctor's concerned about that, all one can do in those circumstances is to make it quite plain that the whole purpose of the exercise is to give the protection rather than to take it away.

Deputy J. O'Keeffe: Then if we go back to the word "absolute", effectively you're agreeing and accepting then that it shouldn't be absolute.

Professor Binchy: No.

Ms Simons: It is a question of how you characterise what the doctors are doing. Each of the doctors is terribly careful to say that they didn't really know what you were to classify what they were doing as. What was abundantly clear was that what we do in this country is for very many of the complicated conditions you have been told about in some detail. In other jurisdictions, doctors take the easier option. They terminate first and treat second because it is inconvenient and far more difficult to look after two patients than it is clearly to look after one. Notwithstanding that they do that, their maternal mortality rates, for instance, in England and Wales, are double what they are here, even though we don't have abortion in the accepted sense of that word.

So, what you have to look to is----- Everywhere in the Green Paper, and this is where I found it rather odd, they couldn't find any Irish literature to support the hypothesis that abortion was necessary to save women's lives. In fact, in the immediate aftermath of the 1992 referendum in the last set of guidelines that the Irish Medical Council had, they invited all and sundry, anybody with an interest or expertise, whatever, to make ... to give information to them on the necessity of abortion in this context, and they were not persuaded. They said the necessity for abortion remains to be proven. Given that that's the case, for some reason we're----- The Green Paper then turns to jurisdictions where there is already a culture of abortion and where abortion has been accepted as a legitimate part of medical treatment, and by abortion I mean the terminating of the foetal life, not the pregnancy, prior to treatment or in conjunction with treatment.

What we are talking about in the Irish context in each of the disparate conditions that you have dealt with are perhaps the premature delivery of a child and every effort that can be made, if any effort can be made, to then support the life of that foetus, that baby, once it's born, will be made. That is a very different thing from extinguishing the life first and then treating the mother. That is the fundamental distinction of what the Irish doctors do.

Deputy J. O'Keeffe Could I go back to the medical evidence that we did have, and we had a lot of it here?

Ms Simons: I know.

Deputy J. O'Keeffe: The evidence is that on rare but regular occasions it is necessary to terminate the pregnancy-----

Ms Simons: The pregnancy, yes.

Deputy J. O'Keeffe -----to save the life of the mother.

Ms Simons: Yes.

Deputy J. O'Keeffe: You accept that that's-----

Ms Simons: I do-----

Dr. Kiely: Could I make a simple point there too? Remember, usually very often the indication for the termination of the pregnancy is a foetal indication. I think, somehow, the impression has been created that you have a sick mother and a well child in the uterus. The reality of the situation is that the health of the baby is largely determined by the health of the mother and that the baby does not have the option of living if the mother dies. Those situations which cause the illness, the baby is also affected by the maternal illness. Very often in practice, a doctor is left with a situation where they have a very ill pregnant woman and, consequently also, an ill child in utero. They find themselves in a situation where, having used all possible treatments, the situation is not coming under control and now they are left with the only option left to them for both the mother and the baby is to terminate the pregnancy and giving the baby in consequence the best possible chance of survival.

Deputy J. O'Keeffe Forgive my lack of medical knowledge but, if the baby in utero clearly isn't viable, and yet if the medical intervention involves the termination, abortion, ending-----

Dr. Kiely: Inducing delivery.

Deputy J. O'Keeffe Yes, that unborn baby in that situation can't live.

Dr. Kiely: Let me put it this way. It is rarely that absolute.

Deputy J. O'Keeffe I know, but they did say there were rare situations where they're confronted with that situation and, in that situation, they say they have only one option and that is-----

Dr. Kiely: Deliver, and it is the only option for either. The baby may not survive. I've certainly been in situations where I've been called as a paediatrician to the delivery suite and the obstetrician says: "Look, there's really no chance for this baby. It's too ill, but just in case, we want you there and we want-----

Deputy J. O'Keeffe: Can I just put one last one on that point because I see we have a vote over in the House we have to get to? The review group also said to ban abortion simpliciter could thus criminalise medical intervention or treatment necessary to protect the life of the mother if such intervention or treatment required or occasioned the termination of her pregnancy. Would that not be what they're referring to?

Professor Binchy: That sentence, I think, reveals the misunderstanding on which the recommendation is based.

Deputy J. O'Keeffe: You'd see that as an error?

Professor Binchy: Totally.

Ms Simons: The bottom line now is - I know you're hurrying to go to a vote - but the bottom line, even taking the case of pre-eclampsia, we are talking about possible pre-viability. A woman is in a situation where, because they have now discovered some reaction in her to a protein in the partner's sperm, there is a creation being conditioned in her body which is inimical to the life of the baby, indeed, inimical to her own life. If she is left in this condition, there is organ failure, kidneys will stop, everything stops, she dies, the baby will die too.

This is what brought me into this debate and I have said continuously in public fora I would not be involved in this were I convinced that there was even one situation in which the termination of the foetus's life was necessary to save the life of the mother. The situation which I found myself at death's door necessitated the delivery of the child. In my situation, happily after many months in hospital, that child came home. In some situations, the child doesn't survive and we know that. The fundamental bottom line in all this which is common to all of the doctors who are talking about current medical practice being supported and who wish that is what they are dealing with is perhaps the early delivery and perhaps pre-viability. They are not talking about going in and doing a procedure which involves terminating the foetal life. They are talking about delivering it, and it may that you can help it survive, it may be that you cannot.

Deputy J. O'Keeffe We're back into definitions again.

Ms Simons: It's terribly important that we understand what we're talking about.

Chairman: I have to suspend the session because we have to respect the plenary assembly.

Deputy J. O'Keeffe: Our life won't be worth living.

Chairman: Can you wait for us?

Ms Simons: Yes.

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