AFTER THREE FULL days of hearings, Tuesday saw the final presentations and questions before the Oireachtas on the draft legislation on abortion.
After hearing from the heads of maternity hospitals, psychiatrists, the Department of Health and doctors on previous days, yesterday was the turn of the lawyers. Legal experts covered medical law, constitutional law and medical ethics as they teased out some of the most intricate detail in the draft of the Protection of Life during Pregnancy Bill 2013.
We liveblogged everything as it happened yesterday but here are the most interesting moments to catch up on.
1. Any possible ‘sunset clause’ will be a political decision
The issue of a sunset clause was brought up towards the end of the first session, by Deputy Michael Creed, who wondered if the Oireachtas could review the legislation after a specific point to see if it had ‘opened the floodgates’. He was told both by Tony O’Connor and Paul Brady that this was a political decision.
But what Brady added, and which had not been mentioned before, was what will be the benchmark? He questioned what number of procedures will be consider a ‘success’ or a ‘failure’. It was clear that if a sunset clause was decided upon, the issue of benchmarking results would be a pertinent one.
2. One TD wasn’t happy with ‘wordy’ submissions
Deputy Peter Mathews described the submissions of two of the experts, Dr Simon Mills, and Tony O’Connor, as ‘too wordy’, saying he was less confident about what they submitted than their fellow experts.
Mathews’ comments drew swift rebuttal from the chair, Deputy Jerry Buttimer, who asked him to show respect to the witnesses. Mathews shot back that he was entitled to his own opinion.
In response, O’Connor said that he could fee free to reduce the wording. Dr Mills, meanwhile, said that if Mathews has concerns, he should put them to him by writing and he would be happy to deal with them.
3. Capacity is in question
The issue of capacity was one that was returned to numerous times in the morning session. Tony O’Connor spoke about dealing with a woman’s capacity to consent or refuse, and how he hopes that the Assisted Decision-making (Capacity) Bill comes into law soon. He said he doesn’t think it right that many cases that involve a dispute over capacity end up in the High Court.
He is anticipating instances under the proposed Protection of Life During Pregnancy bill where the patient does not have the capacity to consent or refuse the decision.
There was also the issue capacity and age, as Dr Simon Mills pointed out that over 18s legally have capacity to consent or refuse a procedure, while 16 and 17-year-olds can consent to dental, surgical and medical treatment, but do not have the right to refuse. But for children under this age, the Law Reform Commission has recommended reform as the situation is unclear.
Dr Mills one wondered what is the situation for a patient who may require a termination in a life-threatening emergency, and who lacks capacity, for example.
4. Fatal foetal abnormalities could (possibly) be included in the legislation
There has been some criticism of the proposed legislation for not including fatal foetal abnormalities as a situation in which a woman could procure a termination. TDs and Senators have repeatedly pointed out that they are restrained to legislate within the confines of the 1992 Supreme Court judgment in the X Case, which says nothing about cases where the foetus isn’t compatible with life.
However Dr Ruth Fletcher of Keele University suggested that it would be possible to include fatal foetal abnormalities if the definition of ‘unborn’ was changed to include foetuses which are never going to survive at all outside the womb.
5. “A point not argued is a point not decided”
As with a number of speakers over the past three days, some of the experts pointed to perceived problems with the 1992 Supreme Court judgment which, they said, was a flawed basis on which to legislate. Sunniva McDonagh pointed out that “a point not argued is a point not decided” – in other words, because the Supreme Court did not discuss psychiatric issues or other matters at the time, it is problematic to create legislation which may cover such matters now. However the point has been refuted by other experts, who have pointed out that the government has to clarify its laws on abortion based on the ECHR judgment, and is doing so.
6. Concerns remain on several key points
Mary Mitchell O’Connor, Ivana Bacik and Jillian Van Turnhout all raises concerns over the position of young girls living under State care wishing to end their pregnancy under the proposed legislation. Questions also remain regarding those women and girls who try to or succeed in obtaining drugs to end their pregnancies. “Will she face a criminal charge?” O’Connor asked.
The question of conscientious objection of individual medics in contrast to the needs of the patient was also raised, while head four remains the “greatest point of concern” for people.
However, assurances were given that all concerns will be listened to. Minister of State at the Department of Health Alex White said that “each issue that has been raised by a Deputy or Senator during the course of this debate will be considered during the preparation and publication of the Bill”.
Compiled by Aoife Barry, Sinead O’Carroll, Christine Bohan, Jennifer Wade and Gavan Reilly.
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