I thank everybody for attending this afternoon. I remind Members and witnesses to ensure their mobile phones are switched off for the duration of the meeting as they interfere with the broadcasting and sound recording equipment making it uncomfortable for members of staff. This is our 11th session of 12 in our series of hearings that the Joint Committee on Health and Children has been asked to conduct in the analysis of the heads of the protection of life during pregnancy Bill. I thank the members for their attendance in the past three days. I again remind everybody regarding time. I ask people to be cognisant of the language and terminology we use. We should be temperate, moderate and respectful of each other and in particular of our expert panel of witnesses who have come here voluntarily today to assist us in our analysis of the heads of the Bill.

I welcome Dr. Ciaran Craven, Dr. Ruth Fletcher and Ms Sunniva McDonagh. I thank them for giving of their time to assist us today. I remind members and witnesses about privilege. Witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter to only a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of the proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice or ruling of the Chair to the effect that, where possible, they should not comment on, criticise or make charges against either a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I ask Dr. Craven to give his opening remarks.

I thank the Chairman and members of the committee for the invitation to present to it this afternoon. I know the members of the committee have heard a great deal in the past few days and I do not propose to delay them unnecessarily with what I have to say. Over the next few minutes I will give a very brief outline from an ethical-legal perspective in respect of the heads of the Bill. I will begin with the ethical issues, moving on then very briefly to the legal considerations that necessarily arise. I will then synthesise them regarding some general comments I wish to make in respect of the heads of the Bill.

As the Medical Council has made clear, good medical practice depends upon a relationship of trust between the profession and society at large. That requires the highest standards of professional practice and behaviour. That is the expression the council uses in its guidance. At the heart of this are the concepts of honesty, responsibility and accountability. To fulfil the duty the council defines for doctors requires that doctors seek the highest standards regarding their practice. A failure to meet those highest standards will attract opprobrium. It may either amount to professional misconduct on what they call failing below the reasonable standard test or indeed it may also amount to poor professional performance. However, that is a bit academic. At the heart of this is a requirement that proper professional standards be met and a failure to meet those standards is one that will result in certain sanctions, the nature of which do not actually concern us this afternoon.

At the heart of this is something simple - the safety of the public. It is about assuring that individuals receive the quality of care they deserve on the one hand. It is also about assuring that one can ensure that when that care is being delivered it is being delivered safely. I want to demonstrate that it is really not about matters of simple independent opinion. In other words there are objective standards that must be applied. Lest it be considered that this is simply an ethical matter which is of concern, in our legal order this is also given certain force. In so far as the law of tort is concerned, it used to be dealt with in the context of whether one followed, adhered to or subscribed to a general and approved practice, in other words one which was followed by a responsible, reputable or respectable body of professional opinion. That was the classical test and the classical formulation.

That seems to have undergone something of a transformation, particularly in recent years. I wish to reference two particular instances where this has occurred. The first was the case HM v. the HSE and a decision of Mr. Justice Charleton from July 2011. The case is significant because it actually incorporates evidence-based professional guidance into the appropriate standard of care. It is almost a reflex of incorporation and is virtually a definition of equipollence or equal power as between professional guidance which is evidence based on the one hand and then also the standard of care in so far as the law of negligence is concerned. That seemed to represent something of a shift in so far as the courts are concerned from this deference to clinicians in terms of what is or is not appropriate. That is hardly surprising given that over the past 25 years there have been very significant shifts in terms of evidence-based practice in general.

A further issue has also arisen. In its decision in the case of Kearney v. McQuillan, the Supreme Court went further in stating that health care professionals owe and always have owed a duty to patients to protect their constitutional rights. This in so far as our legal order is concerned has been elevated to a significantly higher level as well.

There is a question of an affirmative duty - an affirmative duty on the one hand which is imposed by the proper practice of medicine and secondly an affirmative duty which is then reflected in terms of what the courts have found and in particular the decision of the Supreme Court in the past 12 months or so.

Underscoring all of these it seems there is a requirement for some evidence in terms of one's practice. In other words, in order to fulfil the obligations that doctors have, be it at an ethical level or a constitutional or legal level, there must be some evidence in terms of what they do and that is about the only way the ethical injunction of primum non nocere - first do no harm - can actually be fulfilled.

That forms the backdrop to what I want to say in the context of the heads of the Bill. It would not be particularly useful for me to go through it head by head because the members of the committee and the Members of the Houses will have heard a great deal of that from other contributors and also previously. Suffice it to say that the heads of the Bill in terms of their philosophical approach having regard to those ethical-legal imperatives seem to have adopted an inverted approach in terms of what they seek to do.

When it comes to the question of certifying certain opinions in head 2, 3 or 4, in each case there is a requirement that the opinion be formed in good faith. With respect, when one is relying upon a good safety justification, that good safety justification as a matter of practicality will always succeed. Trying to demonstrate bad faith - mala fides - or even improper motivation in this area is virtually impossible. There is a whole series of cases where this has arisen under the old mental health legislation over the past 40 years. With respect it seems that this represents a very old-fashioned approach which is inconsistent with the ethical, now the legal and elevated to a constitutional duty that the courts have elaborated over the past two years in particular.

By incorporating some kind of objective standard or a reference to evidence-based practice, at least there is some template against which practice can be measured. That is simply not possible in the context of a statutory schema, which is predicated solely on the good faith of individual practitioners. I do not need to mention in this House the issues and problems that have arisen over the years in terms of individual practitioners - one would imagine acting in good faith - who were nevertheless damaging individuals in the most egregious circumstances.

A good faith defence in those circumstances would, under the terms of the scheme of this Bill, provide an absolute defence irrespective of how that behaviour might be considered to be referenced according to a template of evidence based practice. A good faith opinion which is accepted without any reference or is unsupported by any reference to evidence based practice is regressive and potentially dangerous. It represents an old fashioned approach, one which no longer finds favour with the courts or the regulatory body.

In that context, the question of the number of individuals who are required to review any particular decision is of academic relevance and significance because it presents the same difficulty or weakness in so far as it is simply based on bona fides. Some of the particularly bad scandals we have had over the past 20 to 25 years or so would indicate there must be a limit to the deference that any society must give to what amounts to clinical hegemony. If one wishes to write a recipe for abhorrent behaviour or clinical hegemony then the way to proceed is to carry on along this line and provide for a defence based solely on good faith.

The question of conscientious objection does not arise. When it comes to proper ethical practice, particularly one which is evidence based, there can be no issue in relation to conscientious objection. The model with which any doctor here is faced when presented with a woman who is pregnant is that he or she has two patients. It does not matter what one's view is on abortion on a personal or political level. The factual reality is that when a doctor is faced with a pregnant woman he or she has two patients and a duty to both. It seems to me that this is not necessarily flagged with particular significance in the Bill.

I am happy to respond to any questions from the Chairman or members of the joint committee.

I thank the joint committee for the invitation to present. It occurred to me when passing my alma mater, Trinity College, that I have been teaching and researching in this area for almost 20 years. I am honoured to have this opportunity today.

For someone like me who works in the area of ethics and law the proposed legislation in terms of its recognition of a public obligation to implement an existing constitutional right to life-saving abortion, is welcome. However, it does not do enough to meet the ethical obligation to value women's lives. I will focus my opening remarks on four key points, including the definition of the unborn; the significance of risks under heads 2 to 4 justifying a termination of pregnancy; the limits on the rights to conscientious objection and the inappropriateness of criminalisation.

On the definition of the unborn, head 1 suggests that the unborn should be defined to mean following implantation, drawing on Roche v. Roche concerning frozen embryos as a precedent. With respect, the ethical arguments for choosing the point of implantation as a significant moment for legal protection of human life have not been adequately addressed. Given past failures to interrogate the assumed wrongness of abortion and, given the particular factual context of Roche v. Roche, it is open to this Legislature to consider more fully the criteria by which the unborn should be defined. The best ethical argument available to us from the literature and moral philosophy justifying protection of early forms of unborn life from implantation is that of potential personhood. This is the argument that from its earliest stages, subject to assistance from the pregnant woman, the embryo and foetus will go on to become a person. This future personhood argument does not apply, however, to foetuses with lethal abnormalities. Much to the anguish of their parents, they will die after birth and, therefore, they do not have a future as persons. That ethical argument does not apply in this case. Moreover, the State argued in D. v. Ireland that foetuses with lethal abnormalities could be excluded from the legal and constitutional definition of the unborn. Given that D lost her case before the European Court of Human Rights, partly because this was the argument made by the State and domestic remedies were not exhausted, there is, I would argue, more of a moral obligation on the Legislature to deliver on that argument and to address the definition of the unborn in a way that excludes foetuses with lethal abnormalities.

A second important aspect of this ethical argument for protection of early embryonic life from implantation is that it rests on the potential to become a person rather than on actual personhood. Potential personhood is best regarded as giving early embryonic and foetal life moral value because of what it will become in the future. This potentiality is obviously ethically significant but not as significant as the moral status we give to sentient forms of human life, namely, forms of human life that are developed to the point of feeling pain or pleasure. That is another stage of development with another set of capacities and another level of moral protection is due it. It is also not the same as the higher moral status which comes with full personhood, namely, the capacity to reason, communicate, will and act on our lives. A person's interest in her own bodily and moral integrity may justify limitations on the duty to sentient beings. This is because part of what makes life valuable is the person's ability to reflect on her life over time in particular factual circumstances and to make moral choices in that regard. That is part of what we value about being human.

To sum up, the following categories I would suggest provide a better ethical framework for the protection of unborn human life than does the assumed significance of implantation underpinning the legislation. First, pre-sentient embryonic and foetal life has moral value rather than moral status. It should be taken into account in moral decision-making but in itself does not impose harm-reducing duties on others. Second, sentient foetal life has moral status and may impose a duty on other persons to reduce harm to that sentient foetal life. Third, self aware personhood has a higher moral status than sentient life and this can limit the duties we owe sentient forms of life. They are the three ethical frameworks discussed in literature on medical ethics and law, which I believe will be helpful in informing the debate around protection of unborn life in its early stages.

My recommendation in this regard is that the unborn should be defined so as to exclude those foetuses which have lethal abnormalities and which will not have a future independent life. This possibility is open to the Legislature. It does have the power to do this. Also, the unborn should be defined to mean the foetus following the earliest moment at which sentience is possible.

On heads 2 and 4 and the risk of loss of life that justifies a termination of pregnancy, these heads provide for the kinds of risk to a woman's life which will legally justify a termination of pregnancy under the scheme. Others have commented more eloquently than I can on the need to remove obstacles in life-saving abortion care and on the troubling mistrust of women with suicidal ideation. I would like now to focus on the narrowness of the risk to life ground for termination of pregnancy. This ground has been drawn very narrowly, in part because it is assumed that Article 40.3.3° requires the life of the pregnant woman to be treated the same as the life of the embryo or foetus. Again, turning to ethical moral philosophy and legal theory, equality scholars have long argued that equality does not mean sameness rather ethical treatment requires the accommodation of actual differences between beings of all shapes and forms. Vindicating the life of the unborn with due regard to the equal right to life as directed by Article 40.3.3° should entail a full evaluation of all the interests that the woman's life entails, as well as all the interests of the unborn.

To state the issue concisely, women are conscious, sentient beings with moral viewpoints and responsibilities to other people. Foetuses are not quite that. They are the bearers of biological life and they will be future persons but this is not the same kind of life as that of the breathing, feeling and thinking woman. The current legal test treats women and foetuses as if they are the same, which I argue devalues both forms of life. It does not value their specificity and particularity sufficiently.

In regard to head 12 on conscientious objection, in principle the inclusion of a conscientious objection clause is defensible, subject to two conditions. First, it must be applied to individuals rather than to organisations and, second, it must only be applied in circumstances where alternative provision is available to a woman needing termination of pregnancy. If respecting human life includes respecting the personal choices which give life meaning, obviously health care practitioners may avoid performing health care that infringes their moral values. As the explanatory notes acknowledge, however, conscientious objection is not an absolute interest but is limited by the need to prevent harm to other people, pregnant women in this instance. In circumstances where a health care practitioner cannot arrange alternative provision without undue delay, the right to conscientious objection may be limited by the duty to prevent harm to patients. That is an issue of which we must be mindful in legislating for conscientious objection. This recognition of health care practitioners' consciences is worthy but it is inconsistent with the lack of legal recognition of women's consciences in this context. If conscientious objection to the provision of abortion is legally acceptable, as in head 12, so is an equivalent objection to sustaining the embryo or foetus within one's body. If a woman's conscience tells her that terminating a pregnancy is the best moral resolution of all the complex issues that arise in a particular factual pregnancy, her conscience equally deserves recognition and accommodation.

Turning to head 19 and the new offence proposed to be created by the Bill, the criminalisation of women's decisions to end their pregnancies is a disproportionate and unfair response to the constitutional direction under Article 40.3.3o to vindicate the life of the unborn as far as practicable. It is disproportionate because it does not achieve the end of protecting foetal life. We know that hundreds of thousands of Irish women have had terminations of pregnancy. Criminalisation has not been successful in protecting unborn life. Furthermore, criminalisation as one form of legal regulation makes the situation worse because it stigmatises and punishes those women who find themselves needing to end a pregnancy. In making the situation worse, it also makes health care more difficult to access because, as we have heard, medical practitioners will feel the chilling effect of the criminal law.

The Legislature has other options under Article 40.3.3o. Criminalisation is not a necessary aspect of the Article and other, less punitive options could be pursued, such as regulating the terms on which abortion is accessible or adopting more positive measures to prevent the loss of unborn life through miscarriage by investing in pregnancy related care. In choosing to punish women rather than adopt more neutral or positive measures to support foetal life in pregnancy, the Legislature is acting unfairly because it is asking women rather than the State to bear the weight of the public duty to vindicate foetal life. In respect of the head 19, I agree that sections 58 and 59 of the Offences against the Person Act should be repealed but it would be harmful to adopt this new offence. If the Legislature is not prepared to go the full route of decriminalisation, which is open to it, at minimum the offence needs to be defined in much narrower terms than is currently the case. At present it is expanding the range of actions that could be a criminal offence with the phrase "any act with the intent to destroy unborn human life". This is too broad and may include acts which are ultimately unsuccessful in destroying unborn human life. The maximum penalty of 14 years is extreme and, at the very least, we should consider reducing it given that we are discussing the criminalisation of moral choices by women in difficult situations.

I thank Dr. Fletcher for travelling here to participate in our hearings. The next speaker is Ms Sunniva McDonagh, SC.

I am a practising barrister, a member of the Mental Health Tribunal and a member designate of the Irish Human Rights and Equality Commission. I was also the editor of the Irish Reports at the time the X case was decided. We edited and prepared a special edition of the Irish Reports setting out the relevant arguments. However, anything I say this afternoon is entirely in a personal capacity. I want to make constructive criticisms of the Bill in a spirit of interrogating what might be possible. My criticisms should not be taken to suggest they will inevitably come to pass but, as legislators drafting legislation, it is important to examine the provisions to determine what they actually provide for, bearing in mind that our purpose is to bring clarity to the rights of the mother and the unborn child.

As there is no presumption that the heads of the Bill are constitutional, we can proceed on the basis of criticising them in that way. I do not want to rehearse the arguments made by other speakers but I wish to speak about the drafting of the legislation. In regard to clarity, head 2 on necessary medical practice in the context of physical risk contains nothing new. Medical practice in Ireland has been excellent in treating both mother and unborn child over decades. I am not sure any additional substantive clarity is brought to the matter by this head, which is unobjectionable. An issue that remains unclear, however, is head 4 and the threat of suicide. In this regard, I want to mention what was decided in the X case because we cannot leave out of the picture the fact that the Supreme Court formulated the test without the benefit of medical evidence or best psychiatric practice. The court did not have to consider and weigh expert testimony or psychiatric evidence as to whether abortion is ever a treatment for suicide or if other treatments could be utilised to avert the risk. This is what members have been considering over the past several days.

On foot of the Supreme Court judgment in X, a superstructure is going to be imposed in order to meet the test, involving various medical professionals. An earlier speaker argued that X was wrongly decided. I will not argue that but certain matters were not considered in X because certain concessions were made. X is silent on some of the issues arising around the threat of suicide and it now appears that the best psychiatric evidence indicates that abortion is not a treatment for suicide. However, the structure we are examining proposes to put in place and medicalise what in fact was a legal test. It cannot be ignored that the evidence of a psychologist, who was not advocating abortion, meant that the X test was fulfilled. A question arises as to whether we are legislating on a flawed presumption or hypothesis. It seems to me, based on the best psychiatric evidence available, that is what is being proposed. The medical evidence indicates that abortion is not a treatment for suicide.

If, however, the legislation is to proceed on the basis of this structure involving the various medical professionals, then it is important to make a few points about the draft heads of the Bill. The first point is that having involved psychiatrists in the process, there is no actual requirement that a psychiatrist must examine the patient before giving his or her opinion. The legislation states that a psychiatrist should examine the patient. However, the words "should" and "shall" are not the same. The way the word "shall" is used in relation to consulting the general practitioner can be contrasted with that particular provision. In law, a mere exhortation that somebody should do something is not mandatory or enforceable. It is very understandable that there would be reluctance to subject a woman in distress to any rigorous or invasive procedures but the question must be asked as to whether this would be an adequate justification for bypassing best medical practice in respect of diagnosis and treatment. A court called upon to interpret this legislation will consider the words used and not the aspirations of its framers.

The framers of the Bill have made reference to the Mental Health Act 2001 and it has also come up for discussion before this committee. It has been seen as a model in the framing of the heads. However, it is important to point out that the involuntary detention of a patient under that Act requires two separate and distinct medical examinations of the patient. That must be a personal examination and it must be carried out by a general practitioner and a psychiatrist. Failure to conduct such an examination will mean that the patient is actually unlawfully detained. In a recent High Court case, the judge described these examinations as vital, essential safeguards for the patient. This is altogether apart from the fact that under the mental health legislation, there is an automatic review of the detention at a later stage when two further medical professionals are involved. It is not clear why the framers of the legislation - in looking to the Mental Health Act 2001 as a model - have failed to provide that there must be an examination of the patient if, in fact, there are diagnostic criteria for evaluating suicide, etc. Failing to provide that psychiatrists must examine patients leaves the Bill open to the suggestion that psychiatrists are being involved perhaps for optical or non-medical purposes.

A further consequence of not requiring a examination of the patient is to increase the likelihood for forum shopping by the patient or the doctors involved. I ask members - as legislators - when they are examining the Bill to carefully consider what is proposed under head 4. What is proposed is that the psychiatrists involved should be employed at a centre registered by the Mental Health Commission and that one of them must be attached to the institution at which the procedure is to be carried out. One must ask what is meant by the words "attached" and "employed" because although a psychiatrist must be registered in the general specialty of psychiatry, there are extensive freedom of movement provisions. As a result of the fact that the legislation is all about clarity - and we are quite entitled to ask at this point what is intended - it is important to interrogate what precisely is to be required of the psychiatrists. For example, would it be sufficient if they hold clinics once a month or if, in circumstances where they are resident abroad, would it be sufficient for them to provide opinions without actually examining patients. This is a matter which, again, should be the subject of careful consideration.

The next point I want to make involves the risk of self-destruction and the foetus and potential viability. What is proposed represents a significant change in medical practice. Under head 2, the treatment is not actually the termination of the unborn life. Under head 2, where there is a physical risk, the unborn life, as a consequence of the medical treatment, might die but for the first time in statutory provision it is being provided that the actual treatment is the termination of the pregnancy. The proposed treatment is, in fact, abortion. Nowhere under these heads are doctors mandated to terminate a pregnancy via a procedure which might ensure the baby would survive. It might be stated that this is the intention, that the Supreme Court would never allow that, etc., but the purpose of the legislation is to bring clarity to the position. The proposed legislation does not bring clarity to the position. It should not be forgotten that the threat of suicide can be established late in pregnancy by a woman saying, for example, that it is the very fact of being pregnant or of carrying a child with a severe disability which is making her suicidal. If she is going to have the treatment, then that is actually the termination of the pregnancy. There is no comfort in the legislation that this does not extend right up until birth.

There are some other safeguards which I may not have the opportunity to discuss in view of the time limits which apply. I wish to state, however, that if members look carefully at "appropriate location and public obstetric units" in the legislation, they will see there is nothing in the legislation which seems to prevent the HSE from entering into arrangements with private providers or with co-locating the resultant services in public hospitals. After all, they only have to be co-located with maternity and neonatal services. Many treatments - for example, oncology or cardiac treatments - will not be carried out in public obstetric facilities. When the Bill is eventually published, it may well have to be extended in order to include other private or general hospitals. On the appropriate locations, one should give careful consideration to what may or not be permitted in this regard. I will be happy to answer any questions members may wish to pose.

My first question is directed to Dr. Craven. He referred to the Medical Council's guidelines, the importance of professional integrity in dealing with the public and the expectation that medical professionals will act in good faith. There is an obligation on such professionals in that regard and the Medical Council's guidelines are the essence of this. The 2009 edition of the guidelines specifically states, in the context of suicide as a threat to the life of the woman, that a termination is lawful in this country. Is Dr. Craven of the view that the guidelines in question are at variance with good medical practice?

My second question is directed to Ms McDonagh. In the context of the debate on the protection of life in which we sometimes engage, reference is made to the obligation on obstetricians, psychiatrists, cardiologists, oncologists and medical professionals in general to vindicate the life of both the mother and the unborn in so far as is practicable. Article 40.3.3° of the Constitution is specific in this regard. Where in the legislation is provision made for the intentional destruction of the unborn to safe the life of the mother? We can understand that in the event of an intervention prior to foetal viability, while it would not be intentional, the life will be destroyed. From where in the heads of the Bill did Ms McDonagh obtain the perception that there will be intentional interventions in order to destroy the life of the child and after viability as well? If an ability in this regard exists, perhaps she could enlighten us as to how we might tighten up the position. I do not believe any Members of the Houses or any professionals would like legislation to be put in place by means of which we would almost obligate or allow medical practitioners to intentionally destroy life. If we were to do so, would we not - at the very least - be passing legislation which would probably be against the spirit of Article 40.3.3° and also unconstitutional?

In his summary, Dr. Craven made it clear that he does not believe the Bill to be fit for purpose and stated that it fails to reflect the ethical and legal imperatives and to recognise certain things, is philosophically confused, involves an old-fashioned approach, fails to reflect proper ethical-legal considerations and it is fundamentally illogical.

Dr. Craven's point in No. 39, immediately before his summary, is that if this Bill passes there can be no conscientious objection to ethical, legally permissible practice. In the event that the Bill does pass, is Dr. Craven arguing that there can be no provision for conscientious objection? We cannot have it every way. We are likely to have to face the passage of legislation of some form. Even though Dr. Craven has strong views I am sure that many who would share his position would be anxious that conscientious objection would indeed be provided for.

I thank Dr. Fletcher for her contribution. In respect of recommendation No. 3, Dr. Fletcher refers to removing the discriminatory distinction between the evidence requirements for a risk to life from a threat of self-destruction and a risk to life from a threat of physical illness. Do I understand from this that Dr. Fletcher is supporting a view already articulated here today, yesterday and on Friday that heads 2 and 4 be brought under a single heading? Would that be the direct translation of what Dr. Fletcher is arguing for?

I thank Ms McDonagh for her contribution as well. Reference was made to there being no requirement to examine the patient. Ms McDonagh refers to the provision that the specialist should examine the patient and then goes on to state, under the same heads, that the woman's general practitioner shall be consulted. However, that sentence concludes with "where practicable". The "shall" is not an absolute, it may not always be a possible situation. That represents exactitude in language. Ms McDonagh is very clear about the importance of that and its understanding.

Ms McDonagh stated that surely in the case of suicide risk an equally robust regime should apply. This was in the context of examination of the patient. Does Ms McDonagh have concerns that examination of the patient is not properly provided for in respect of medical circumstances as against suicidiality? Would Ms McDonagh like to elaborate on that? Generally, we would be of one mind that we want to see the patient examined, that the determination of the professionals is based on the very best opinion that they can arrive at. One would think that would include an examination of the patient.

I thank the witnesses for their attendance and presentations. I will be brief, as usual. In respect of Dr. Craven's presentation I take it that he has difficulties with the Bill but that he is more of the opinion that the template of the Mental Health Act would be more appropriate, operable and practical in this area. Is that is the case? What is Dr. Craven's view?

Dr. Fletcher referred to the question of fatal foetal abnormality, an issue I raised early on in the first day of these hearings. I asked Dr. Tony Holohan of the Department of Health why this issue was not covered in the legislation, particularly in view of the State's case at the European Court of Human Rights. Will Dr. Fletcher clarify and expand on that point, please?

Ms McDonagh referred to the question of appropriate location. Again, I raised this issue on Friday morning. I take it Ms McDonagh has a difficulty with it. Perhaps the committee has a difficulty with it as well. Will Ms McDonagh confirm that the matter could be amended and clarified in the legislation?

I will take the Vice Chairman, Deputy Ciara Conway, at this stage.

I thank the witnesses for their presentations this afternoon. In the course of recent days we heard from Dr. Anthony McCarthy, who is the head of the School of Psychiatry and is a perinatal psychiatrist who works in that field extensively, being only one of three in the country. He stated that it is true that abortion is not a treatment for suicide but he added that counselling and anti-antidepressants are not treatments either and that there is no treatment for suicide. He argued that we have to try to prevent suicide by looking at the reasons for suicide. I put it to the witnesses that we all advocate that abortion is not a treatment for suicide, but it is the choice of the woman and it is the doctors who certify the woman to be suicidal. These are trained medical psychiatrists who, day in, day out and week in, week out deal with risk and put people on suicide watch. Are we now to believe that they are incapable of ascertaining whether a woman is suicidal? We all agree that abortion is not a treatment for suicide. It is the woman's right to choose.

I call on Ms McDonagh to start and we will give you five minutes each to reply. Six other members have indicated to speak.

I am not a medical doctor but, to take the last point first, I am dealing with the legal position in respect of the protection of the unborn and the right of the mother to every medical procedure that will save her life. I am not here to advocate a policy, such as a woman's right to choose, but I am addressing the psychiatric evidence which is available. One wonders why the entire matter has been medicalised if, in fact, the idea behind the Bill is a policy consideration that women should have the right to choose. It is not that I have a problem with anything to do with appropriate legislation, I am merely drawing the attention of the committee to what the consequences could be. I am here as a lawyer not as an advocate. I am merely pointing out that the HSE under the Health Act can enter into an arrangement with any provider provided, it seems to me, it is co-located with maternity services, etc. I am only pointing out that one could have a situation where one could have, in the grounds of a hospital, a private provider. One wonders was that what was intended, if there is to be oversight.

That could be amended.

I will bring you back again.

Absolutely, of course it could be amended. All of these things can be amended or changed. One presumes that is why we have all been called to give our view.

Deputy Kelleher raised a question about abortion being a treatment for suicide. In response, in the penultimate paragraph in the explanatory memorandum to head 4 the framers state, "In circumstances where the unborn may be potentially viable outside the womb, doctors must make all efforts to sustain its life after delivery." However, it is not so much a matter of where in the Bill one finds that the unborn is going to be targeted. The question is where does one find in the heads of the Bill protection given to a foetus who is potentially viable outside the womb. By extension, I would say that one also has a difficulty in principle once it is acknowledged that there is a right to life once a foetus is viable. Where does one draw the line? Where does one draw the line if it is 20 weeks and some form of protective treatment can be put in place for four weeks? It is very difficult once the viability argument is conceded to see if there is not a principled argument throughout. Anyway, I do not see here any explicit protection for the unborn up until viability. Let us not forget the other related point that came up in respect of the definition of "unborn". One is unborn until one has proceeded fully from the womb, according to the explanatory section. That does not give any comfort if, in fact, the life of the unborn can be terminated.

I wish to respond to Deputy Ó Caoláin's question about whether the recommendation is equivalent to the merging of heads 2 to 4. In short, the answer is "Yes". Having extra procedures and extra personnel required in the case of suicide risk is effectively discriminatory against people who threaten suicide.

The effect of my recommendation is to remove that kind of discriminatory provision within the heads. The effect could be achieved through having the same test and, effectively, merging heads 2 to 4. Therefore, I would support that.

I will respond to Deputy Healy's question on the definition of the unborn and the possibility for having that definition exclude foetuses with lethal abnormalities. The main argument I was making in terms of having a brief to talk about the ethical arguments today, was that the future potential personhood of those foetuses unfortunately is not going to be achieved. In ethical terms, one is asking women to sustain pregnancies when a future independent life is not going to be achieved at the end of the day. It would be regarded as unethical in that sense in that one is imposing suffering when a good is not going to be attained out of that suffering at the end of the day.

On the legal point in D v. Ireland, given the ethical arguments and given the legal possibility of defining the unborn in a way that it would exclude foetuses who have these particular extreme conditions, which mean that they cannot survive birth, that would achieve the delivery of the State's argument in D v. Ireland which, in effect, meant that D lost her case before the European Court of Human Rights because she had not gone to a local court in Ireland. The European Court of Human Rights said that argument could have been made before a domestic court and therefore the case was thrown out. That gives the Legislature an added responsibility to act on behalf of those women given that this case was thrown out by the European Court of Human Rights on the basis of that argument because it believed in the possibility that Irish courts and the Irish Legislature could interpret Article 40.3.3o in this way. The Legislature does have a moral obligation to pick that up as well.

I will deal with the questions in the order in which they were put to me. I will deal with Deputy Kelleher's question first. What he said about the Medical Council guidelines on suicide is correct but the council is simply making a statement of its understanding as to the current legal position. It is doing no more than that. I certainly do not think on any reasonable reading of that particular provision that it is actually saying this is nevertheless ethical. Having said that, I recognise there is a fundamental inconsistency between a bald statement in relation to legality divorced from any consideration of the ethicality of what is actually stated. I should say that I do not hold a brief for the Medical Council and I am not here to defend its position or what it has said in this area.

Moving on Deputy Ó Caoláin's comments, he was quite right in what he said. It is fair to say that I am highly critical of the approach the Bill has taken. There is a certain philosophical inversion in terms of what is required. Rather than simply examining what the evidence is and, therefore, what is ethically and legally mandated, it seems to decide there are certain procedures which are not defined which somehow are lawful and defensible and then it invites the professional bodies and the regulatory agencies to provide assistance in relation to the implementation of the legislation. With respect, in terms of a very significant policy issue, that strikes me as being an inversion. Whatever doctors, the regulatory bodies and the professional bodies may say about these matters, the questions of policy and the principle are not ones which, in my respectful submission, are capable of being avoided by the Oireachtas.

My comments in relation to conscientious objection have to be taken in context. If the proposed Bill is reflecting proper ethical, legal consideration, then the question of conscientious objection simply cannot arise because it accords with both the ethical imperative and the legal imperative as I tried to make out. If, on the other hand, it is doing something different, then it may well be the case that a question of conscientious objection arises. Whereas the case has been made that conscientious objection is something of a personal right and is vested in individuals, it in itself, as we know from other jurisdictions, is capable of giving rise to all kinds of issues and difficulties when one steps one position more remote from the person who is involved in the procedure. In our neighbouring jurisdiction there have been significant problems in relation to it.

In so far as the question of whether this is a right which vests in institutions is concerned, again the courts recognise that no doctor or health care professional can be obliged to do something which he or she considers to be contrary to the best interests of the patient. Institutions do not have arms and legs or eyes and ears, they can only operate through the personnel they employ or engage. Trying to make a distinction between a right to object in relation to institutions, on the one hand, and individuals, on the other, is, in my view, not sustainable.

Moving on to deal with Deputy Healy's question, I hope I have not misled him in regard to the Mental Health Act. That Act of itself is one with issues related to it. Since the question has been raised, that Act evolved and was designed with a particular policy objective in mind and it sets out the various principles which were to apply and then it sought to import those principles by way of giving effect to the policy objective. While I am certainly not holding it up as a paradigm in terms of how it might be done, the point I wish to make is that with the policy having been decided one cannot then seek to implement it without having reasonable regard to the ethical legal principles which will result in proper implementation of the policy.

Deputy Conway's question has probably already been dealt with by Ms McDonagh in her response. In so far as Dr. McCarthy is concerned, the evidence given before the committee on 8 January of this year was pretty much to the same effect. The argument is not being made that abortion is a treatment for suicidal behaviour, suicidal intent, suicidality or however one wishes to characterise it. If it was the case that the Oireachtas seeks to introduce a regime for other reasons, then that is policy debate of an entirely different order. As Ms McDonagh has already pointed out, what this Bill purports to do is to medicalise the matter. If we were to engage with it from a rights-based perspective, that would be a debate on an entirely different matter.

Six members have indicated they wish to speak and I call Senator Colm Burke.

I ask Dr. Fletcher to expand on the issue of lethal abnormality. I understand that under Article 40.3.3° the life of the unborn is protected. If the unborn has only the prospect of surviving one second after being born, the legal position is that the pregnancy cannot be terminated. Dr. Fletcher seems to have a different view and I would like her to clarify that issue.

Ms McDonagh referred to the Mental Health Act and the structures that are in place. In terms of the heads of the Bill, is it her view that we should have a similar structure for dealing with whatever procedures have to be put in place to deal with such an application, especially under head 4, or is she suggesting that a more comprehensive structure should be put in place? Once a decision is taken in this case it is not reversible and when the procedure goes ahead it is not reversible. Ms McDonagh might clarity that matter.

I find it very difficult to stand up and question people who are very intelligent and knowledgeable about the law. It is difficult for me as a layperson to take in all that is being said, and I mean that with greatest of respect to the witnesses.

I had to undergo surgery a few months ago and I had to sign a consent form. I signed it in good faith believing that when I was wheeled down to the theatre the people would look after me and do their best. This Bill is very important in that we are entrusting the medical people in our country to look after people who turn up on their doorstep in a mentally distressed state and to act in good faith to protect the mother and the unborn child.

That is my definition of what this Bill is about as a non-medical person or a lawyer. It is what I believe as an individual.

I have a question which I am finding difficult to put into context but I ask the Chair to allow me read two brief extracts from statements provided, one of which is from Mrs. Justice Catherine McGuinness under "unborn". It states:

I accept that this definition is based on the Supreme Court judgement in the Roche case [whatever that was]. However, it should be pointed out that this definition of the personhood of the unborn is not universally agreed.

I read most of Dr. Fletcher's statement but in her contribution earlier she stated: "Foetuses ... are the bearers of biological life and they will be future persons but this is not the same kind of life as that of the breathing, feeling and thinking woman". I find it difficult to formulate my question but would Dr. Fletcher say that the unborn foetus was the same as a living person who has been tragically maimed in a very serious accident where people are brought into a room and told that this person who was living and feeling is now on a life support machine and has been pronounced brain dead? I may have formulated that question wrongly but I am trying to ascertain if there is a difference between the unborn person and that person lying in a bed in intensive care whose family are being told there is no prospect of life and therefore, not wishing to use the phrase, to end their life. I ask the witness to formulate a response to that question.

First, in regard to the children's referendum-----

That is not part of the heads of the Bill.

This relates to the heads of the Bill if the Chairman would allow me finish without interrupting me. In the witnesses' opinion is the ability of the State to enforce an abortion against the will of the family covered in the heads of the Bill, and would that be an ethical process?

Second, what limitations, if any, should be placed on a physician's choice of method or technique for abortions either before or after viability? Where the child is not viable, may the physician use a procedure, for example, which would directly end the life of the unborn? I do not want to go into the gruesome details that entails but issues arise such as suction aspiration and dilation and evacuation, D and E, where the child is partially evacuated. Post-viability, even though there are serious risks attached to the health of the child, what is the position with regard to the person performing that abortion, having regard to perhaps a safer method of abortion which would involve the death of the baby as against another method such as induction which might save the life of the baby? Is the Bill clear on that and the ethics attached to it? Third, is there an obligation on us, as legislators, to enact laws that are just?

For the record, Senator, the Chair intervenes; it does not interrupt.

I will note the Chairman's distinction in that regard. My first question is to Dr. Craven. I am at a loss to understand his submission - I have read his submission as well as listening to his contribution - and the basis for his opposition to the heads of the Bill. His view is that it changes the current two patient duty, as he put it, but in my reading, and according to the experts we heard earlier, the heads of the Bill do nothing to change the current duty under Article 40.3.3o, which is a duty both to preserve the right to life of the unborn as far as practicable and to preserve the right to life of the pregnant woman. Head 1 of the Bill, which sets out the definition of "reasonable opinion", and head 19 specifically cover that requirement as well as the duty that others have referred to of any practitioner operating within the Bill to observe the terms of Article 40.3.3o, which remains in place. I cannot accept the basis for that submission.

Dr. Fletcher made some very thoughtful points in her submission about the issue of life. I ask her about heads 1 and 19 in particular. On head 1 she points out the difficulty with the definition of "unborn". My reading of the current definition is that it covers cases where, tragically, there is no longer foetal life, in other words, a foetus which is no longer alive. The witnesses from the Institute of Obstetricians and Gynaecologists told us that they would not regard that as an unborn and that they would regard it as miscarriage but my reading of the definition is that it is not sufficiently focused to exclude that, and that it would lead to the difficult and traumatic situation of a pregnant woman being forced to carry to term a foetus which she knows to be no longer alive. That is a traumatic thing to require any woman to do. Dr. Craven helpfully reminds us that section 58 of the Civil Liability Act 1961 refers to unborn, specifically stating "provided the child is subsequently born alive". That bears out the argument the witness is making. Clearly, there is litigation waiting to happen along the lines of the D case in an Irish court where a woman with a fatal foetal abnormality challenges the State for failing to provide her with the right to a termination.

On head 19, Dr. Fletcher made a very strong argument about the need not to criminalise the woman, or indeed the young girl, who attempts or carries out an abortion on herself, which is a real practical point because so many young women are importing abortion pills for use in this jurisdiction. I take her point, which was helpful of her to make.

Following on from Senator Bacik's question to Dr. McDonagh, I ask her to elaborate on that because my understanding of head 19 is that it specifically prohibits the intentional destruction of the unborn. I ask her to clarify that for me.

I read with interest Dr. Fletcher's contribution and thank her for appearing before the committee because it opens up an issue that needs to be debated. She referenced the College of Obstetricians and Gynaecologists in her paper and the threshold of the 24 weeks gestation. As she is aware, there was a case in the United States in which Amelia Taylor was born just short of 22 weeks gestation. In those extreme circumstances would that neonate have less legal protection if we introduce a definition along the lines she is talking about?

In that regard, at the other end of the scale and following on from the question Deputy Catherine Byrne asked, which is a valid question, Dr. Fletcher made the point that a person's ability to reflect on life over time and make their own moral choices. We all accept that but someone with Alzheimer's disease, for example, would fall into that category where they cannot reflect on their own life or make their own moral choices. How do we deal with the ethical issues that raises?

I hope I have got all the questions. The first question was on the Mental Health Act. I do not hold a view as to precisely what should happen but I would like to point out that there are other safeguards in the Mental Health Act other than the ones I have mentioned. The Mental Health Commission is an independent statutory body and it advertises and recruits independent lawyers, lay people and psychiatrists to sit on its tribunals. It is also mandated to act in the best interests of the patient. Interestingly, there is a five year review clause for the mental health legislation also. Looking at this proposed legislation, when we come to the review panel, it is the Health Service Executive that licenses the hospital, yet the HSE is also the body tasked with setting up the review panel and a HSE employee acts as convenor of the panel and chooses the panel. It was the framers of the legislation who were looking to the mental health legislation as a template and if it is to be seen as a template, it might be an idea to take some of these further safeguards from the mental health legislation.

I agree with Deputy Byrne. I do not believe that this is a very complicated issue. One would hate to think that the intervention of lawyers and doctors was over-complicating what is essentially a very simple issue in which everybody in the State and the people who enacted the Constitution have a stake and a right to have a view on. It is finding the right balance between two competing constitutional rights and one would hate to think lawyers were trying to be obtuse when, ultimately, it comes down to simple value questions.

With regard to the section 19 offence, the terminology in the draft is very unclear because it mentions the intention of ending unborn life. Throughout the Bill there is an interchangeable use of the phrases "termination of pregnancy" and "medical procedures". There is a very important principle distinction between the two but they seem to be used interchangeably throughout the Bill as if they were the same thing. Many medical procedures, such as oncology and cardiac procedures, which are performed on a woman whose life is at risk, happily do not end up with the baby dying. The intention of these procedures is to save the mother and if the baby dies it is a regrettable consequence of the necessary treatment, but sometimes the baby does not die. Interestingly the Bill mentions having procedures in place to bring to the attention of the Minister the statistics on this area. It might be a good idea not only to collate statistics on terminations at risk of suicide, but also necessary medical treatment which did not end the life of the baby.

It is a little problematic because it seems clear when a woman states she is suicidal, the reason she is suicidal is apparently the existence of the pregnancy, and this is the proposed basis for intervention. Not to minimise the terrible distress of a woman who feels she cannot possibly bring a baby to term because it has a disability or because she suffers from serious social stressors and she feels she will kill herself, surely then let us not confuse terminology. When psychiatrists certify without perhaps having examined the patient, an obstetrician will be faced with the certificates and will see in front of him or her a woman who is physically all right and baby which is physically all right. The obstetrician will then be supposed to intervene to avert the risk, which he or she must do apparently by directly targeting the unborn. I cannot see how this could be described as other than a direct termination of pregnancy. It is suggested and proposed that if the ground is enacted it will certainly be the case that this will not be a criminal offence. This is true. This is the reality and the distinction which one must emphasise between treating the mother and the baby dying unfortunately, and intervening in this direct way.

Many rich questions were asked and I thank committee members for them. I will address the points on the definition of the unborn. The question was asked as to how the proposed definition of "unborn" would deal with the idea that it applied to those foetuses which are born and survive for one second. Another issue was whether it includes dead embryos or foetuses in the womb.

At present we do not have legal precedents on the definition of the unborn where a lethal abnormality exists. We do not have a direct legal precedent on this particular issue. Because we do not have this direct legal precedent the Legislature has the ability to define "unborn" in a way which would address these problems which have arisen through acknowledging the suffering of women and couples who have had to travel, even though the pregnancies will not survive. The view has been put forward that "unborn" could apply to foetuses which have survived even for one day, but I advocate we do not accept this view and that we define the unborn in a way which excludes foetuses which do not have the capacity to survive. This is not to say these foetuses have no value; I do not argue this at all. I am just arguing no good will be achieved by forcing a woman to continue a pregnancy when the child will not survive.

With regard to the point on the current definition of the unborn being overly broad and not excluding even dead embryos or foetuses, it is interesting that the institute raised this issue. Obviously as a medical matter it is seen as excluded and comes under the category of miscarriage. This is what is happening in medical guidelines and practice at present. We need a tighter definition of the unborn to exclude this possibility. We also have an opportunity to have a definition of the unborn which deals with foetuses which would survive through pregnancy but would not survive for long after birth.

The second interesting set of questions raised were to do with arguments around full personhood and how we distinguish between the foetus as sentient life and the born patient stripped of consciousness because he or she was in a crash or is a patient with Alzheimer's disease. We are not stating that full personhood is all that counts; we are saying there are three different forms of human life which all impose values and status. I distinguish between the example of a person with Alzheimer's disease or the person in a crash and sentient foetal life in the womb because a person with Alzheimer's disease or a person who has been stripped of consciousness through an injury had been sentient with a conscience and a will but through accident or disease this capacity has been lost. Because such people had this full personhood status it is possible to distinguish them from an earlier foetus which has not yet attained these capacities. Its ability to attain these capacities is dependent on a pregnant woman getting it to the point of attaining them. There are ethical ways in which we can distinguish these cases. The ways in which they are similar are obviously that in all cases families and loved ones are concerned about the value of these forms of life. If they are sentient forms of life they are similar in this way and this can impose duties on us. I am just saying they are not the same order of duties as full personhood would impose.

The final point raised had to do with criminalisation. One of the big risks of criminalisation, or why we should not act disproportionately and punitively in implementing Article 40.3.3°, is because it will affect the most vulnerable. Young women who are avoiding using health care practice by ordering medical terminations over the Internet are a classic example. We would be effectively criminalising this behaviour and making the situation worse. This is not a good use of our law when we have the opportunity to do something more positive and progressive.

The questions asked by Senators Reilly, Byrne and Bacik relate to foetal abnormality and what the unborn is. I listened with interest to what Dr. Fletcher stated and it strikes me as quite a novel proposition that we can characterise life as having three different forms. Be this as it may, I am concerned about Senator Bacik's characterisation, and I am subject to correction on this, when she discussed the question of lethal foetal abnormality and whether it is something which ought to be protected. We must be very careful to note the mere fact a baby happens to have a lethal abnormality does not of itself mean it is wholly inconsistent with life. Generally it means it is inconsistent with prolonged life. It may well be a matter of minutes, hours, days or even months.

The committee should be careful not to consider lethal foetal abnormality as something that is incompatible with life outside the womb in the sense in which that is ordinarily understood.

There has been some discussion of what "unborn" means, as if it is an abstract verbal noun. Committee members will be aware that, when this is dealt with in Article 40.3.3° of the Constitution, the Irish expression is "beo gan breith", which literally means living without being born. Senator Bacik rightly referred to section 58 of the Civil Liability Act 1961. With respect, however, it does not refer to the unborn, but to the unborn child. This is not limited to our domestic legislation - it is found in European directives as well, including one referenced in my paper, the medical exposures directive. Article 10.2 of that directive refers to the duty to the mother and the "unborn child" in the context of ionising radiation involving the abdomen and the pelvis of a woman who is or may be pregnant. We must remind ourselves that we are discussing an unborn child, not an abstract verbal noun.

Deputy Catherine Byrne was right, in that one signs a consent form in good faith and expects doctors to act in good faith as well. We are entitled to rely on that expectation. My point, which I might be making somewhat inelegantly, is that good faith, while necessary, is not sufficient. I can treat someone in good faith and make a complete mess because I breach all appropriate standards of care and misunderstand what is wrong with the patient and how he or she should be treated. Good faith and proper professional practice are not interchangeable.

Reverting to Deputy Ó Caoláin's comments, my philosophical difficulty with this is that it adopts the good faith model, which is old-fashioned, regressive and potentially dangerous. Relying on the good faith of doctors in this day and age is no longer sufficient. Neither the Medical Council nor the courts believe it is sufficient.

I disagree with Senator Bacik's characterisation of the proposed legislation as something that does not change anything about the duty owed to the mother and her unborn baby. It does not recast the duty of care, but the appropriate standard. It regresses to an old-fashioned standard, one that was fashionable in the courts 30 to 60 years ago. From a patient safety point of view, it is no longer sustainable.

The point on review panels has been addressed by Ms McDonagh. That the Oireachtas vests so much trust in doctors to get it right all of the time when the natural history of health care in this jurisdiction indicates - not globally, but in certain high-profile instances - the contrary is perplexing. Doctors are good people, but they are not necessarily the ones who should have the final say in this regard. It is these questions of policy and the underlying principle that I commend to the committee.

I have a question for Dr. Fletcher and Dr. Craven, although I thank everyone for attending. Do they believe in criminalising a woman who attempts an abortion on herself? If so, how far should it be pushed? In the case of an unstable pregnancy, a woman could end it simply by doing housework.

I am incensed by Dr. Craven's comments about the medical profession. It is not always possible to save a mother and her baby, but both my baby and I were saved. I would like Dr. Craven to withdraw his remarks about the medical profession. We trust our doctors. I am really unhappy with Dr. Craven's comments.

I wish to raise two issues.

Very briefly.

I am always brief. Dr. Craven referred to good faith. It may be a lay term and it may be old-fashioned, but I have relied on it for all my life, as have many ordinary people. It is in good faith that we trust daily - when we take a bus to work, when we cycle or when we put our names on lists for operations.

I thank Dr. Fletcher for her answer. I raised my point because my understanding was that a brain dead person's life ended when the life support machine was turned off. There is a difference between this and the case of someone with Alzheimer's disease or dementia, for example, my mother. She lived, walked around, breathed, ate and was able to wash without needing a life support machine. My impression, regardless of whether it is right, is that the machine is the mother's womb. Does Dr. Fletcher understand what I mean? This is the lay person's vision of the situation. These hearings are about understanding the situation in lay terms. I do not have the ethics, surgical knowledge or so on, but I have a lay person's thoughts on the matter. When people attend my office, I must reply to them in lay terms.

I assure the Deputy that she has the ethics.

I did not mean to say "ethics". I was looking for "expertise".

I invite Dr. Fletcher and Dr. Craven to reply to the questions from Deputies Dowds and Catherine Byrne. Senator Henry's question was directed to Dr. Craven.

I do not believe any of those questions was directed to me.

I agree that, in terms of the criminalisation of attempts, the category is too broad. This is a problem. I am against the criminalisation of attempts, as it would bring the law into dispute if behaviour intended to result in the destruction of unborn life was unsuccessful. It would be contradictory in its objectives. I hope that I have understood the Deputy's point correctly.

I may have cited two different examples together in a desire to answer several questions. In response to the point that Deputy Catherine Byrne is raising now regarding forms of life, brain dead life is a biological form of life sustained by a machine. There is value in the example in that sense.

Regarding Deputy Dowds's question, criminalising attempts raises serious practical issues in these circumstances. It is a policy matter as to whether it is in the public interest to pursue the issue. I do not differ particularly from Dr. Fletcher.

Regarding Senator Henry's point, I fear that I have been misunderstood. I was making a simple point that I may have put somewhat inelegantly. There are ethical imperatives in professional practice. There are legal imperatives that dovetail with them. There are objective standards. They are not questions of good faith. There have been episodes in which excessive reliance was placed on good faith and undue deference may have been paid to the profession. The point that I wished to make was a simple one and was from the perspective of 2013. The degree of deference one should have to the medical profession, I respectfully submit, should be tinged with a certain caution. This is why we have external regulatory bodies and oversight. Ms McDonagh has alluded to this issue in terms of the appointment of the psychiatrist, the convening authority, composition and funding of the committee and so on. Some kind of external oversight is necessary.

In so far as our hospitals are concerned, this is a generic point, as the standards are set externally by the Health Information and Quality Authority, HIQA. The standards promulgated by the professional bodies are evidence based, in so far as that is possible. The protection of the public safety, which is a question of assuring quality of care and ensuring that care is delivered safely, requires external oversight.

It seems to me this Bill does not necessarily give such oversight. That is the limit of the point I was seeking to make.

Does Senator Burke wish to speak? Very quickly, please.

I refer to maternity care. It must be acknowledged we have one of the lowest perinatal mortality rates in Europe, which is a tribute to the medical profession. I would not like the wrong impression to be given out today.

I wish to clarify-----

One sentence.

Dr. Craven misunderstood the question I asked, namely, whether the definition of unborn, as currently constituted in head 1, included even the very sad situation where the foetus is no longer alive. I believe it does, which means that it would require women, even where they do not wish to do so, to carry to term a foetus that is not alive. That is my concern, and also that in head 19 we are criminalising those women and girls.

We will move to the non-members' time for which we have a total of 30 minutes. Seven Members have indicated. To explain, because there appears to be some confusion, in deciding the allocation of time the committee allocated a certain proportionality. I will take Senators Rónán Mullen, Fidelma Healy Eames and Paul Bradford, in that order.

I have a couple of questions. Again, we have heard some very differing opinions about certain ethical and legal realities. In regard to the question of fatal foetal abnormality and those very tragic situations, I wonder whether that debate is not more appropriately categorised as part of a euthanasia debate. Defining the unborn by reference to any future personhood or life that he or she might have seems to miss the point of what the eighth amendment was about, namely, to recognise the right the unborn has in the present. It would seem to me immaterial what the future life of that child should be. It also seems that a dangerous approach is being advocated because there is such uncertainty here. When we talk about foetal abnormality, as Dr. Craven noted-----

Can we respect the speaker, please?

How long a child with a so-called fatal foetal abnormality might survive after birth is unknown, in the extreme, if one thinks of conditions such as Edwards syndrome and others. As to whether there is an obligation to maintain a pregnancy where a child has actually died, frankly I find that very surprising and such would not be my understanding of the law. Perhaps others would care to comment.

Ms McDonagh spoke about medicalising a decision that is not medical. Is that a fundamental problem with the proposed legislation? Is it almost ethical bad faith? We are not talking about cases of mental health where I believe it has been well established to everybody's satisfaction that abortion is not a treatment for suicidal ideation. That would imply it is not a treatment for suicidal ideation that arises in a mental health difficulty. Is it Ms McDonagh's position, therefore, that psychiatrists are being drawn into a role that is not really a role for a doctor and that there is thereby a kind of ethical unsoundness at the heart of what this Bill presents?

Do any of the witnesses have a view on whether it is legally necessary to go this route in order to satisfy our obligations under the decision of the European Court of Human Rights in Strasbourg? Is there an alternative path? Part of the rhetoric around the Government's proposal has been that this action is necessary but we heard that disputed in earlier sessions today.

What is the view of the witnesses as to whether there should be a review? Is there a disproportionality about the fact that the refusal to certify a termination under head 4 is susceptible to a review at the request of the mother, while there appears to be no legitimate contradictor or possibility that somebody else might invoke a review, given the final and fatal consequences for the unborn in that case?

I believe I heard Dr. Craven correctly. He stated that a conscientious objection does not arise when there is evidence-based practice and a duty to both patients. What about the Supreme Court judgment in the X case which was not based on medical evidence or best practice? In Dr. Craven's view is this judgment ethical?

I agree with Dr. Fletcher that we have an ethical obligation to value women's lives. Is there an equal ethical obligation to value the life of the unborn? I am somewhat uncomfortable with Dr. Fletcher's recommendation No. 1, about the definition of the unborn. She said this should be defined in order to exclude those foetuses which have lethal abnormalities. Medical error is not uncommon and doctors frequently get things wrong. I met a mother recently who gave birth to twins. In the UK she had been advised to have a termination on the basis there was a strong likelihood the babies would be Siamese twins. They are now healthy eight year olds. In formulating her view, I wonder what research Dr. Fletcher has done and whether she has asked mothers and women who have carried babies that had lethal abnormalities what status they would have put on the unborn. I know many women are delighted to be pregnant, even though they may not give birth to a live baby, or a "take home" baby, as it is sometimes called.

My final question is for Ms McDonagh. Earlier I asked Mrs. Justice McGuinness about the introduction of time limits and she said we should have a go, in spite of the fact that it might be deemed unconstitutional. Would that be Ms McDonagh's view? Yesterday, for example, Dr. Peadar O'Grady, representing Doctors for Choice, suggested a limit of eight to nine weeks. If time limits are introduced would it follow that under head 4, after a prescribed time limit all unborn babies would be safe?

I beg the Chairman's indulgence for a final question to Ms McDonagh, to hear her legal wisdom. In the event of premature induced delivery, post viability, where the baby may be severely disabled, could the State be deemed liable, given it would be working against best practice under head 4?

I have a question for Dr. Fletcher. In regard to head 1, when does she believe a life becomes human and when does it acquire human rights? What rights does life acquire?

I refer to the panel and medical ethics. There are many genuine concerns in this Chamber and in the Oireachtas as we look around at other jurisdictions and as we see what has happened in the United Kingdom, where medical practitioners have flouted the law with some regularity by providing pre-signed abortion consent forms. From a medical ethics point of view should the proposed law be cognisant of the very real possibility that abortion safeguards will be flouted, especially by those who consider that such safeguards unfairly limit the expression of abortion rights?

I refer to head 12 which deals with the rights of conscience and conscientious objection. There was mention of the patient, and of doctors and midwives having a conscientious objection. Do institutions have a right to a conscientious objection, as endorsed by the Council of Europe? Is it the witnesses' opinion that point 3 in head 12 should be removed from the Bill or should it stay?

I address this question to Dr. Craven. During the course of the past 40 years the legislative and ethical issues dealing with women's reproductive concerns have had a fairly messy history in this country, to put it mildly. We have struggled with issues such as who should be given the contraceptive pill and, in legislating for the morning-after pill, what the definition is of the unborn. We had the same concerns about when human life supposedly begins when legislating for the implantation of the Mirena coil. We still live in a country where there is no legislation governing either in vitro fertilisation or stem cell research. As Dr. Craven noted, we can order RU486, an abortifacient tablet, over the Internet, with no legislation intervening. The individuals who would be ordering such medications are the most vulnerable people of the cohort of women we are discussing. At very best, they see doctors and the wider administration of the Government, the churches, or whatever as adversarial, at worst they believe we are trying to criminalise them. As a member of the legal profession, does Dr. Craven agree that perhaps we should not have punitive legislation that would set down how many years a person should be imprisoned for if, for one reason or another, she was using this medication? That question is also addressed to Dr. Fletcher.

That question could also be addressed to Dr. Fletcher. There is a need to separate heads 2 and 4 because physical illness is much more subjective than mental concerns. I am a doctor and I understand the concerns about the enforcement of the Mental Health Act and its use as it stands.

In the course of these hearings I have had a fair idea of where everybody stood ideologically and if they were pro-choice or pro-life. I am a bit in the dark when it comes to the current witnesses, and none has been a member of an organisation that could be described as strongly pro-life or pro-choice. Is that correct?

We can come back to that. I apologise to Senator Bradford as I inadvertently missed him.

If this was a sitting of a medicines licensing board and if the witnesses before us with an ethics background were debating the registering of a particular drug for use and transmission to the general public, we would want to satisfy ourselves that it is safe, appropriate and useful. If we reviewed the drug on a trial basis over ten, 15 or 20 years - in a sense, like the X case - and it was the view not just of most people but of everybody that it was not suitable, I believe it would not be licensed.

With reference to head 4 - the rest of the legislation could be passed in a half day in the Oireachtas - there is the proposal of the concept that abortion is a suitable treatment for suicide, notwithstanding the fact that every presenter this week, last January and over the course of the debate has said the opposite. What is the response of witnesses to that? Is it ethical to put into law a treatment we know is not a treatment at all?

I thank Dr. Fletcher for the contribution and I very much appreciate where she is coming from philosophically on the topic. She mentioned what was described as a troubling mistrust of women with suicidal ideation. We have been asked by the Chairman not to use emotive language and I do not believe the problem to be the mistrust of women with suicidal ideation; we are proposing the possible mistreatment of women with suicidal ideation. Will the witness comment on that?

I concur with Senator Fidelma Healy Eames on the proposed new definitions of "personhood", the "unborn" and difficulties which may flow from that. It is somewhat cold to state people do not have a future as persons. It almost sounds Orwellian and it is frightening language. That is why some of us are so fearful of this legislation, as we are afraid of the scary thoughts it may bring us. That is why we must be careful.

I thank all the witnesses as they gave very interesting and worthwhile presentations. We can agree to disagree on some issues.

I agree with the points mentioned about Ireland being a safe place for women based on mortality rates, as we allowed a different message to go out earlier in the year. I have a point that may have been covered earlier and one speaker can respond to it. If there is physical or mental incapacity, is there any role in the Bill for next of kin, such as parents, father, sister or brother if there is a requirement to act or not act? Is there a role for next of kin in the legislation?

I would appreciate if the next speaker, Deputy Mathews, could ask a question.

My question will be a little different. I ask the witnesses and everybody else here when they decided to come into this world.

We are discussing the heads of the Bill.

It is a point. The Chairman is really too quick off the mark. When did they first decide to become unborn? These are philosophical questions as this is a matter of texture, depth and profoundness. We are here specifically to try to determine clarity in the law and the Constitution with regard to two lives. With the new life, the question is when the life begins, and there is also the question of the host life, or that of the mother. We can argue for days, weeks and months and go into law in different jurisdictions. We have always gone to the English-speaking world but in France in 1975, tight legislation was introduced in this area. We mentioned earlier that in France girls, even those under 16 years old, can go to a general practitioner and have an abortion without the knowledge of parents. That is the reality. We must face up to the question.

The issue highlighted is head 4. The evidence from experts in psychiatry, obstetrics and gynaecology, ethics and law is that where there is no other treatment available for the threat or intent of suicide, there is a legal justification in the proposed Bill that the termination of the life of the unborn is legally allowable. That means the mother would have to have in her intentions the termination of that life. We would be accessories to the termination of a life in order that the host life can be saved when it is not the only possible treatment for that life.

I thank the committee for inviting me to give some of my observations and I will briefly address some of the questions raised. Under the A, B and C v. Ireland case we must ensure our law is clear and accessible, and we are given a margin of appreciation. Ireland is one of the only countries I know with an explicit right in the Constitution giving a right to the unborn. Comparing us with other jurisdictions is not particularly helpful in that regard. We are entitled to ensure our law is clear and if this is about clarity, the suggestion that we should have a go at putting in certain time limits in our legislation must be the antithesis of clarity.

The question has arisen of the necessity to legislate now because there have been many years since the X case and we have maintained our excellent medical service. No other girl has come to court except for the girl in the C case, who I now understand regrets the course of action that her case took. It seems to be working well at the moment. With regard to the Supreme Court and the X case, the test now being proposed is supposedly a medical test but there is no evidence in the Supreme Court test and when it considered the issue, there was no idea of averting the right to suicide. We know it is a principle of Irish law that a point not argued is a point not decided but one needs to only look at how the Supreme Court has approached, for example, cases of historical sexual abuse, where insights gained from psychiatry and psychology as to why people do not come forward sooner, the nature of disclosure and the effects of abuse on complainants. In the case of SH v. Director of Public Prosecutions, there was acknowledgement of the insights brought to bear on the Court's thinking on advances in psychiatry and psychology.

There were many issues raised so forgive me if I do not get to all the points.

In response to the question whether this legal definition of "unborn" accommodates the experiences of women who would like to continue their pregnancies, if we define the unborn in this way so as to exclude foetuses with lethal abnormalities, that in no way forces women who do not want to avail of a termination to have one. All we are doing would be to enable women with pregnancies that have lethal abnormalities to end those pregnancies. That has no consequence for women who do not want to take that route. I do not accept that there is a problem on that point.

I want to comment on the idea one of the Deputies raised that mental health is subjective. We have heard so much testimony on the way mental health is clinically assessed and how it is an objective condition that people live with. However, to describe mental ill health as something that is purely subjective completely fails to acknowledge the significance of it. It is also an objective condition. Physical conditions are subjective in the sense that people interpret those physical conditions; they mean different things to different patients. Both sets of illnesses have subjective and objective elements. Patients are able to express a view about that and their medical practitioners are able to help them in assessing it. I would not want to see us going down a route of devaluing either of those sets of experiences.

I thank the committee and the House for inviting me here today. It might be easier if I deal with the questions which have arisen in an omnibus manner. Ms McDonagh has already dealt with the question whether legislation is necessary. The State is allowed a fair margin of appreciation in terms of how it approaches this matter. It ought not to consider that it is wedded to legislation and that this is the only manner in which one may proceed. There are other legitimate options about which we may disagree.

Regarding the question of the X case and whether a conscientious objection might arise in those particular circumstances, even at the time of the X case it struck me that this was bad medicine. If it was not bad medicine then, it is bad medicine now. For one to feel oneself constrained in any sense or be put in a position where one would have to comply with that kind of situation now seems to me to be fundamentally untenable from an ethical perspective.

On the question of flouting of possible safeguards, the members do not need to hear from experts in ethics or law on that. They can engage in their own sociological review on that and that speaks for itself. The question on a licensing board, reviewing whether a certain drug treatment were appropriate in the circumstances, is a point well made and underscores what I have been attempting to say, which is that one should proceed only if one has decent evidence which makes it safe to proceed. That is why I characterise the approach that is being promoted by the Bill as not alone regressive but also potentially dangerous.

Deputy Timmins raised the question on whether there might be any lawful proxy decision makers in respect of issues which might arise. The Bill is silent on it, but that is not a criticism of this particular Bill but a criticism which one might apply across our legal order where there are gross deficiencies regarding the role of proxy decision makers and what one does when one has individuals who are incapacitated.

I would be grateful if Ms McDonagh might answer my second question, whether in the event of premature induced delivery which could lead to severe disablement of a child the State could be liable, given that under head 4 it was acting against best medical practice?

I asked the question about disclosure. I am surprised nobody answered a "Yes" or "No" on it.

I would have to think about that but I thought it would be a question more for the medical practitioners involved. They would be attached to a HSE hospital but it would be a medical procedure that may or may not be warranted. I would have to give some thought as to what would happen if one had a whole series of children who are delivered but unwanted by their mothers. It would be a very difficult decision. I would hope it would not happen.

Is Ms McDonagh, or has she been, a member of any organisation-----

No. I am in a tennis club-----

That is all right, that is good.

I made it quite clear that I was not asking about Ms McDonagh's tennis club affiliations.

I am surprised Senator Mullen did not ask the question. He has been asking it all day.

I am here on the basis of my research expertise and there have been moments when I have done some support work as an expert for Doctors for Choice, for example as a consultant regarding submissions to the European Court of Human Rights on the case of A, B and C v. Ireland. Those are normal. I have been involved.

The short answer to Senator Healy Eames's question on potential liability is "Yes", but the extent and limit of that liability remains to be seen. On disclosure, it is a matter of public record that for a period of time I was a member of the Pro Life Campaign. That association finished in 2002. It is also a matter of record that I appeared before the all-party Oireachtas committee on the Constitution in 2002 representing the Irish Episcopal Conference.

I thank Ms Sunniva McDonagh, Dr. Ruth Fletcher and Dr. Ciaran Craven for attending and giving of their valuable time and expertise today.