Dáil Éireann - Volume 313 - 29 March, 1979
Health (Family Planning) Bill, 1978: Second Stage (Resumed).
 Question again proposed: “That the Bill be now read a Second Time.”
Dr. O'Hanlon Dr. O'Hanlon
Dr. O'Hanlon: This Bill is necessary in this area principally because of the anomalies following the McGee case since artificial contraceptives are available freely without any reference to age or marital status. Apart from the McGee case, discussed previously on this Bill, there is another good reason that the Bill is necessary, that is, that at present there are approximately 50,000 women who are using the anovular pill. Because of its side effects this drug is not suited to every woman. These are women who have already made a decision to use a contraceptive. In my opinion they are entitled to have available condoms or caps if they so desire.
In this Bill we are dealing with a very serious human problem and a very serious social one for many couples. While there are extremes of opinion conscientiously held, when debating this Bill we owe it to the people confronted with this problem to debate it in a nonemotional and rational way. It would be impossible to draft a Bill on this subject acceptable to all opinions. This Bill goes as far as it is possible to go in a Bill of this nature to meet what would be the consensus of opinion.
The Minister stated that the Bill was introduced after lengthy consideration and wide consultation. I was a member of the health board delegation that met the Minister last June when four delegates from each of the health boards in the country met him. At that meeting I was surprised that there was such a consensus of opinion. I believe that the Bill takes into account the recommendations made at that meeting.
All concerned people in the country would accept that it is responsible for a couple to plan their family. The main controversy surrounds the means by which this may be achieved. The Bill deals with natural family planning. There is a positive commitment to development of a natural family planning service. Section 2 imposes the duty on the Minister to provide a comprehensive  natural family planning service, that is to say, a comprehensive service for the provision of information, instruction, advice and consultation in relation to methods of family planning that do not involve the use of contraceptives. Section 3 makes it obligatory on family planning clinics to give information, instruction, advice and consultation in the use of natural family planning as well as in contraception. Section 3 (2) allows anybody outside of the health board, without restriction, to promote natural family planning. Section 9 gives the Minister power to make a grant for the promotion and development of natural family planning. It is encouraging to note that the Minister, in conjunction with the World Health Organisation, hopes to hold a seminar later this year to discuss up-to-date knowledge in natural family planning. It is interesting that countries such as Sweden, Russia, China and The Vatican, in the past, have used their influence with the World Health Organisation to research further this means of family planning. Indeed it is appropriate that there should be grant aid available because, as we are aware at present, there is plenty of financial support for contraceptives through the International Family Planning Association and through the multinational pharmaceutical companies.
In recent years more and more interest has developed in natural family planning methods. The natural methods now used, the ovulation, or Billings method and the temperature method, have a sound scientific base. In the past perhaps natural methods were not highly thought of because methods such as the calendar one were unreliable. Hence they were not acceptable on a scientific basis. The ovulation method, developed by Dr. Billings in Australia approximately 20 years ago and now widely promoted throughout the world, has a reasonable success rate. Biologically, according to Professor Bonner of the University of Dublin, it is 99 per cent successful. However, when applied in practice, its failure rate varies according to different studies. Maureen Ball who carried out an intensive study in Australia discovered a 7 per cent failure rate in 300 couples over the years 1971  to 1974. When she interviewed couples she discovered that a number of the failures were due to not using the method correctly. If one eliminates those failures one will find a 3 per cent failure rate. The temperature method is scientifically acceptable for the second half of the calendar month. When one weighs the advantages of natural methods against the disadvantages of contraceptives, on balance, if a couple are properly motivated, they very often accept the natural method even though it has this failure rate.
In his opening remarks to the House the Minister said that he hoped to work with the Catholic Marriage Advisory Council and the National Association for the Ovulation Method in Ireland in promoting natural methods. The Catholic Marriage Advisory Council is available in every diocese. It has 1,200 trained personnel who are specially selected through a selection conference and have basic training. They also have in-service training and many of them, particularly nurses, tend to confine themselves completely to the natural methods of family planning. The NAOMI have trained personnel and a number of clinics throughout the country. It is right that the Minister should use such trained personnel because it is important that the information, instruction and advice should be available to the couple rather than to one or other of the party. Personnel working in a voluntary capacity are very often available at times when it would be difficult for the statutory services to provide personnel, such as late in the evening. By using such personnel it would be possible to provide the service at hours that would suit couples or individuals wishing to avail of it.
On the question of contraceptives, I should like to state that the pill was being used by an estimated 150 million people around the world. In fact, no drug has ever been used to the same extent. It is estimated that at present 50 million women throughout the world are taking the pill. The pill was first used in the United States in 1960 and for the first ten years was used liberally. It was considered very safe, but since 1970 there has been a lot of concern expressed  about it. Indeed, the dose of one chemical in the pill is only one-tenth of what was used in the earlier pill, but it is equally effective. There have been a number of studies about the side effects of the pill, one of the more recent being the Royal College of General Practitioners Study in 1977. In relation to the hazardous effect of the pill they discovered that those who ever took the pill had a five times greater chance of getting cardio-vascular disease of some description, and those who took the pill for a period of five years or more had a ten times greater chance of getting such a disease than those who never took it. That is a reason why it is necessary to introduce a Bill which would allow condoms and caps to couples who have already made the decision to use such contraceptives.
The intra-uterine device, while it is only about 20 years on the market, is a very old method. It was used by the Egyptians in ancient Egypt in camels. They put pebbles in the womb of female camels to keep them from becoming pregnant when crossing the desert. That device has serious side effects. One of the side effects is bleeding and a woman can become pregnant with that device in the womb. There is also the risk of infection. The problems are more hazardous in countries where there is malnutrition. A lot of the Opposition discussion on this Bill has centred around the method of distribution of contraceptives, mainly around section 4. A comment was made on the question of the doctor's moral judgment in relation to giving an authorisation. Deputy O'Connell, as reported in the Official Report of 28 February 1979, at column 372, stated:
Doctors are there to doctor and not to make moral judgments which they have not the slightest desire, not to mention the competence, to make.
In my opinion doctors have already made a moral decision in relation to prescribing of contraceptives, because in reply to a question on 28 February the Minister stated that, in the year ended 30 September last, 145,575 prescriptions for non-ovulent pills were dispensed under the general medical services. That does not take account of the population  as a whole. There is no doubt that the vast majority of these prescriptions were for women who were using the pill as a contraceptive. Obviously, the doctor's who had prescribed those pills had already made the moral decision in relation to whether they would or would not prescribe contraceptives.
Dr. Browne Dr. Browne
Dr. Browne: Would the Deputy say that they were breaking the law?
Dr. O'Hanlon Dr. O'Hanlon
Dr. O'Hanlon: I cannot give the reason why individual doctors might dispense these pills but, in my opinion, the vast majority of them were as contraceptives. I do not see anything wrong with a husband and wife going to their family doctor to discuss all the various methods of family planning that are available and the couple then making the decision in consultation with their doctor in relation to their particular needs. If the couple opt for natural family planning this can be provided for them either by the family doctor or at some of the centres where it is available. If they opt for a medical method obviously it is necessary that this should be supervised by the doctor. If they opt for a non-medical method the doctor will give them an authorisation which will entitle them to go to the chemist to have this method dispensed for them. I do not consider that it is necessary for them to go to their doctor every time they need the non-medical method of contraception.
I do not see anything wrong with a general discussion with the family doctor about all the various methods that are available. I believe this is appropriate, having regard to the traditional role of the family doctor in Ireland, where he does not see his patient as a piece of pathology coming into him but as a whole person in the context of that person's environment. Deputy Boland at Volume 312, column 348 of the Official Report said:
I wonder how many doctors now practising realised when they undertook their six years or more of training, followed by subsequent experience and the expertise gained in treating the sick, that all of that was a  preparation to now being placed in a position when they will by law be allowed to write chits for condoms?
I can think of a number of areas where a doctor after six years' training would not consider it necessary to have had that training to write some of the prescriptions he is obliged to write. One thinks immediately of a protein food which I do not believe requires six years' training.
The family planning service should be with our family doctors. The health boards will have a role to play in providing instruction, information, consultation and advice. If there are areas where doctors do not take part in the service—they have a conscientious right to opt out if they wish—the health boards might have a role to play. I am pleased to see the control of the family planning services placed with family doctors.
Section 10 of the Bill outlaws abortion. I am totally opposed to abortion in any form. We have heard it said that freely available contraception cuts down abortion. When we are totally opposed to abortion it is important to ensure that we do not have it. In countries where there has been more liberal legislation for contraception than we have the number of abortions has risen. In England 173 pregnancies per 1,000 ended in abortion in 1976. They have very liberal contraception laws. It does not appear to be correct, unfortunately, that if you have freely available contraception you do not have abortions.
There is a need for sex education more now than formerly because so many of our young people are exposed to more explicit sex on television, in magazines and in the media generally. The best place for sex education is in the home. It should be a normal part of the development of the personality of the child. The parents are the best people to give this instruction. This is not always practical, and then the school has a role to play. I believe it should be a normal part of the development of the personality of the child in the school. I prefer to see it carried out as a normal part of the curriculum of the school by staff personnel rather than bringing in  outside personnel, which gives sex the appearance of being something different.
In relation to girls the emphasis should be changed away from learning about menstruation to learning about fertility and about the time of the month that they are fertile. The emphasis in the past was on menstruation rather than on fertility.
With regard to this Bill it appears to me that those who wish for a more permissive sexual behaviour will vote against it, while those who would like to see more control on contraceptives and those who support the traditional way of life will support the Bill. Obviously, if the Bill were defeated we would still have the situation where there is no control and contraceptives freely available to any person who wished to have them without any regard to their status.
During the past 15 years there has been a vast accumulation of scientific knowledge about human reproduction. It has been discovered that the female egg does not survive any longer than 48 hours and that the male seed does not survive any longer than 72 hours. It should be possible with this knowledge to develop a method of family planning that will be able to identify the fertile days in the month and to cut them down to an acceptable number for the vast majority of couples. That will come eventually. Much work is being done at the moment; and perhaps some simple method, such as the urine dipstick, will be found in the not too distant future that will give a natural method acceptable to the vast majority of couples and do away with the need for contraceptives. This would be medically and morally acceptable and we should be working for this.
By promoting a family planning service that will include natural methods and by putting more control on contraceptives, I believe this Bill will be a considerable help. For those reasons I support the Bill.
Mr. Kelly Mr. Kelly
Mr. Kelly: I had it in mind to deal only with what was in the Bill, but having heard Deputy O'Hanlon I have to say a few things about the general tenor of his speech. I hope he will not take it amiss, or as being personally intended. It  is not; because I have no doubt that he is only one of a number of Deputies on his side—and perhaps a few on this side—who would be willing to discuss this matter in a Parliament in these terms.
We really are a strange people, that five or six ageing men are willing to sit in this Parliament and solemnly discuss urine dipsticks in order to decide whether we are going to legislate along the fine tightrope of morality that the people expect of us. When did we ever apply that exquisite care to deciding other moral issues, to the justification of violence in any part of this country or outside it present or past, to the justification of things that were done 60, 100 or even 300 years ago? When did we devote this exquisite finicking care to deciding issues of morality such as dishonesty towards the State, such as failing to make correct income tax returns or claiming social benefits to which we are not entitled? These are moral issues also. My own view is that they are more important than what we are talking about. In a way I am ashamed to be part of this debate except for the purpose of pointing that out. I do not mean any offence to Deputy O'Hanlon, but I think it fantastic, and something that one would find only in a country inhabited by leprechauns whom life had spared from most of the major decisions the rest of the world has to face, that a handful of ageing men could sit around here talking about moral decisions that would be right or wrong depending on whether something was right or wrong with a urine dipstick. That is the first thing I want to say but it bears strongly on my belief about this Bill and about the Bill introduced by Senator Cooney previously.
This Bill is before the House on the initiative not of the Minister for Justice, to whose area of jurisdiction one might have thought it more appropriate, but on the initiative of the Minister for Health. If one looks up the statutory functions of the Minister for Health in the creation of his office and of his Department one will find very little in detail about it, but the Ministers and Secretaries Act, 1924, speaks about “public health” and that is almost all it says in regard to health in  the section which created the original Department of Local Government and Public Health.
In those days public health was almost exhausted once one had enumerated functions such as making sure that poisonous shellfish were kept off strands so that people could not pick them, that blankets in a fever-ridden district were fumigated and that contagious diseases were controlled at the ports. Those were the kinds of things involved in “public health” in those days. I know that the functions of the State in relation to the preservation of health have increased, and rightly so, and I do not complain about it.
However, I do complain about the sham being exercised in this House and the pretence that the matter before us today is primarily a health matter. It is not. It is accidentally a health matter, in that it has a health dimension, but it is not primarily a health matter. I cannot understand a man such as the Minister for Health, to whom sophistication is imputed, solemnly coming into this House and pretending that a Bill about condoms, pills and loops is primarily a health matter. It is nothing of the kind. It is no more a health matter than it would be if the Minister opposite were to pretend that the licensing of motor vehicles or the licensing of premises for the sale of liquor was primarily a health matter. They, too, have health aspects. A person can get scoliosis or curvature of the spine if he sits in a badly-fitting car seat. A person can become an alcoholic if he spends too much time in a licensed premises. But does that make these items health matters? Of course it does not.
I think I know the Minister's problem, but he and his party have faced it in a cowardly way. There is everything to be said for being prudent, for not letting one's valour overtake one's prudence when dealing, as we were dealing and as I, as Whip, had to deal, with a knife-thin majority, and in the case of this matter when we had a minority of 16 votes. There is a lot to be said for a compromise then, if you want to make any headway. But there is nothing to be said for it when you have 84 rearguard legionaries, members of a radical party  compared with whom we are a crowd of musty old grannies on these benches and the people on the Labour Party benches are living on the moon. On the Government benches are the party of radical reality; but this is the best they can produce on a topic that does not belong in the House at all.
Would it have been such a dreadful thing, would it have made the national herose turn in their graves had a few of the legionaries revolted, had a few of them walked through the “No” lobby, had a few of them gone along with a more radical Bill to clear this matter out of the legal criminal code? I do not wish to single out Deputy O'Hanlon—it is only that I heard him speak—but would it have mattered if he and his colleagues had said that they would not support the Bill? Would the veil of the temple have been rent, would the sky have fallen if the legion of the rearguard had walked in two directions through the lobbies?
A more radical Bill would not have been depending for its passage merely on the legionaries of the rearguard. I believe the Labour Party and Deputy Brown would have voted for it and I would have voted for it had I been let. I believe many others in my party would have done the same. Would it have been such an abdication of responsibility, that we might get proper legislation on this subject, namely, legislation to remove this matter from the criminal code, if that legislation had to be passed by reliance on three parties instead of one party?
I do not admire the Minister opposite, but I hand it to him that he has made an impact on his Department. In a sense it is a telling reflection on the Government of which he is a member that he has made more impact in his office than any of his colleagues have in theirs, and only a small-minded person would deny that. I admire particularly the Minister's concentration on the preventive aspects of medicine, on trying to get people to look after their own health, to understand that if they subject their bodies or their minds to too much ill-treatment they will wind up as casualties. I admire the Minister for that and I think he is absolutely right, but there is a wide field still left for endeavour in that area.
 There are many things the Minister could do in that area, with my support and with general support. He made a start in regard to alcoholism and getting people to take more exercise, and there are other things he could deal with. He could wage a campaign against obesity. He could start by trying to prohibit advertisements for that unsightly young man with the stomach who advertises Crosse and Blackwell spaghetti as a “veggie”. That advertisement reaches a new low in vulgarity, and in pointing in the wrong direction, from the health point of view. That is something the Minister could grapple with, and he would get the same support he got for grappling with cigarette advertisements.
But no, it is dictated, I suppose, by his party and possibly by the media, that he has to make himself ridiculous, as he does to me anyway, by coming in here with a Bill which purports to be a Health Bill on this matter but which is only secondarily a health matter. Big steps have been taken in regard to health. My party have been associated with two of the most revolutionary—the institution of the hospital sweepstakes and the voluntary health insurance—that shining achievement of the second Coalition Government and of Tom O'Higgins, the then Minister for Health. The voluntary health insurance system has revolutionised the health situation. I do not take credit away from others for their contribution; and I believe this Minister will make a contribution if he persists in the line which I, for one, support, with regard to the preventive aspects of this field.
In my view he would have done himself credit if he refused to be saddled with this dead and stinking albatross of a subject which does not belong, as he must know in his heart, in this House in this form. He feels obliged to cast this topic in this form to make it look respectable. It has to be tarted up as a health measure to be respectable. That is what the radical party are driven to 50 years after their foundation. I realise that in this country, where people are not encouraged by their political leaders to make straight decisions and to think straight about simple issues, a certain amount of “whoofling”, compromising,  bargaining and window dressing may be unavoidable.
Perhaps I am wrong in thinking it would have been avoidable even if the Minister had taken his courage in his hands and done the simple thing, namely, repealed section 17 of the 1935 Act simpliciter, leave it out of the law altogether and wait and see if abuses developed and if something needed to be done to control them. That would be the right thing to do. It would leave the country in the state it was in in 1935. In other words, it would leave us with the same moral atmosphere in our legislation that existed at the time of the Eucharistic Congress. During that congress this legislation we are getting so excited about was not in force.
It may be that if he had taken that course he would have had trouble with his party. It is an open secret, and perhaps I make myself ridiculous my harping on it too much, that the same was true in the Government I worked for. Sixty-two of our Deputies voted for Senator Cooney's Bill, seven or eight voted against it. That was an extraordinary achievement and in a sense we broke the ground for the Minister and for other legislation in this area. It is nonetheless the case, and I make no secret of it, that the legislation produced by the then Minister for Justice represented a compromise. It was intended to deal with the situation which the McGee judgement had produced. It may not have been the legislation that Senator Cooney or I, as individuals would have wished if we had only ourselves to think about, but it was the legislation which it appeared the Government and the two parties concerned would support. It carried on it the marks of a compromise, and I admitted that when I spoke on it five years ago. It was bitterly attacked by Fianna Fáil on the ground that it was unworkable. Their objection was its unworkability, not a moral objection.
I invite any fair-minded person to compare, on the criterion of workability, the Bill before us today and the one Senator Cooney introduced. I do not think this Bill is intended to work. I do not think the Minister cares a tráithnín whether it is workable or not because he  knows it will never be enforced. We are wasting time discussing legislation which will never be put into force. If Senator Cooney's Bill was unworkable, this Bill is equally so, but, as I said, I do not think that is too important a consideration because it is not intended to work it.
The correct thing to do would be to repeal section 17 of the 1935 Act and leave the country as it was before 1935. Nobody will pretend that this country was a vassalage of the devil until this section was passed. Of course it was not, nor would it be if that section were repealed. Of course it was not, nor would it be if that section were repealed. I would have expected from a radical Republican party, that pretends everybody else is still wearing button boots, a radical and courageous approach, and, if necessary, enough generosity not to impute the smallmindedness which they displayed here in 1974 to today's Opposition.
I do not believe for a second that it would have crossed the minds of the Labour Party to vote against them just for the sake of voting against them. It would not have occurred to the Labour Party or to most of my party to try and embarrass the Government by voting against the Bill, even though many people did not have any objection to it. It is a poor case when we talk in high and pompous terms about the Dáil, the Irish people's assembly, yet the Irish people are not able to get the legislation more than half of them want. Why? Because when we had a majority it was so thin that it could not cover half a dozen defections; and because this Government, even though they have an enormous majority, do not have the guts to expose even a minority of their Deputies to an imputation from a minority of the community that they are permissive. Permissive my eye. Are they never worried that anyone is going to think them permissive in regard to their ambivalence on violence, on people being shredded limb from limb?
Permissiveness in regard to this matter, which for many people is an outcrop of love—maybe not always but for many people it is—must be stamped down even by the party of radical  reality. That could not be allowed. It could not be said that Deputy X or Y could be allowed to go back to the peninsula he lives on and have people pointing the finger at him that he was permissive about love-making, but he can hold his head high if he is permissive about murder. If that party consisted of a crowd of little altar boys who never pretended to be anything else, one might have taken another view.
Mr. N. Andrews Mr. N. Andrews
Mr. N. Andrews: On a point of order, is it in order for a speaker to impute permissiveness to murder as Deputy Kelly has done? He is imputing to the Fianna Fáil Party——
Mr. Kelly Mr. Kelly
Mr. Kelly: I am imputing to the Fianna Fáil Party a two-faced attitude——
An Leas-Cheann Comhairle Sean Browne
An Leas-Cheann Comhairle: If Deputy Kelly imputes any permissiveness to murder to any Member he is completely out of order.
Mr. Kelly Mr. Kelly
Mr. Kelly: I am sorry to have upset Deputy Andrews.
An Leas-Cheann Comhairle Sean Browne
An Leas-Cheann Comhairle: It is very difficult for the Chair to follow some of the lines Deputy Kelly is taking, but if he would stay on the Bill rather than bring in extraneous matters, it might be better.
Mr. Kelly Mr. Kelly
Mr. Kelly: I want to say beyond question that I am not imputing a murderous attitude to anyone on the far side but I am imputing to them a two-faced attitude towards murders committed by others. I am also imputing to them that before the last election they went round the country whispering, when they were not shouting, that we were too much given to law and order and too unsympathetic to law-breakers.
An Leas-Cheann Comhairle Sean Browne
An Leas-Cheann Comhairle: It would be wiser if Deputy Kelly kept to the subject matter of the Bill before the House. It has nothing to do with law and order or permissiveness with regard to murder or anything else.
Mr. Kelly Mr. Kelly
Mr. Kelly: I have made the point. The unlovely spectacle of a Government with  a large majority who are afraid to appear permissive in this relatively insignificant part of life but do not mind appearing permissive when it comes to other things, who do not mind imputing to people who are absolutely against such things——
Mr. N. Andrews Mr. N. Andrews
Mr. N. Andrews: There is no ambivalence in Fianna Fáil.
Mr. Kelly Mr. Kelly
Mr. Kelly: I do not see any Deputy on the opposite side from Roscommon. One of the members of the Minister's party, a councillor in Roscommon, attributed, within a week of the last election, the defeat of the Coalition to the fact that we were too hard on the men of violence.
An Leas-Cheann Comhairle Sean Browne
An Leas-Cheann Comhairle: That has nothing at all to do with the Bill.
Mr. Kelly Mr. Kelly
Mr. Kelly: But perish the thought that anyone might think that councillor would be permissive about a condom.
Mr. N. Andrews Mr. N. Andrews
Mr. N. Andrews: Do not attribute wrong motives to Fianna Fáil.
Mr. Kelly Mr. Kelly
Mr. Kelly: Are we not a miserable people when we are represented by a crowd like this?
An Leas-Cheann Comhairle Sean Browne
An Leas-Cheann Comhairle: Order. Deputy Kelly on the Bill.
Mr. Haughey Mr. Haughey
Mr. Haughey: Everything the Deputy is saying can be attributed to the man he supported during the Coalition, Deputy Cosgrave.
Mr. Kelly Mr. Kelly
Mr. Kelly: In the area I am talking about, there is no Member on the opposite side fit to polish Deputy Cosgrave's boots and the Minister knows that.
An Leas-Cheann Comhairle Sean Browne
An Leas-Cheann Comhairle: There is enough scope for debate in the Bill without getting into other matters.
Mr. Kelly Mr. Kelly
Mr. Kelly: I do not mind talking about it.
An Leas-Cheann Comhairle Sean Browne
An Leas-Cheann Comhairle: Deputy Kelly on the Bill, please.
Mr. Kelly Mr. Kelly
 Mr. Kelly: I will leave the subject of the legion of the rearguard for the moment——
An Leas-Cheann Comhairle Sean Browne
An Leas-Cheann Comhairle: There is no legion of the rearguard that the Chair is aware of in this House. They are all Deputies of the House.
Mr. Kelly Mr. Kelly
Mr. Kelly: It is a kind of pet name because nobody really looks on them as guarding anything worth a damn. I do not mean it seriously in the way that the Minister meant it when he called Senator Cooney a fascist. That has not been withdrawn to this day. That is permissiveness and the Deputies opposite know exactly what I mean when I use that word. A fascist——because he was doing his job and trying to control murder.
An Leas-Cheann Comhairle Sean Browne
An Leas-Cheann Comhairle: After that interlude we will get back to the Bill before the House.
Mr. Kelly Mr. Kelly
Mr. Kelly: As Deputy Andrews knows, because he is in the same constituency as I am, I would be suiting a lot of people if I voted against the Bill, but for different reasons, some because the Bill does not go far enough and some because they do not want any change made in the law. The latter are a respectable minority of people and do not want the law liberalised in any shape or form. Their point of view was well summarised in a long letter which I got, not long after the McGee decision, from a well-known theologian. It is not necessary to name him. His argument boiled down to the fact that the Supreme Court had based their decision in regard to Mrs. McGee's rights on their view of marital privacy being something which the natural law guaranteed. He was paraphrasing the Supreme Court's view that marital privacy was a feature of natural law but, wrote the theologian, how can it be consonant with the natural law to permit something which is against natural law, namely the artificial prevention of conception resulting from sexual intercourse? My answer to that as a layman would be, let it be so. Perhaps it is against the natural law to prevent artificially conception resulting from intercourse  but the point is, is it the State's job to be enforcing by means of criminal sanctions the prescriptions of the natural law?
We could easily admit that it is against the natural law to use contraceptive devices but I find it hard to be sure about that because I see theologians disagreeing about it. That is a long way from answering the question: is it the State's job to be enforcing the natural law by means of a man in a blue uniform with a whistle? My answer is, and it is an instinctive answer, that it is not. I cannot argue this rationally, but to my mind it is not within the proper scope of the State to be enforcing any code of conduct in this highly intimate area of life. The arguments in regard to the natural law and the law of God are missing the point. We are not setting ourselves up in opposition to the law of God or to the natural law. If I was in control of the legislation I would be trying to draw the line between the area in which the State has a justifiable and defensible role and the area in which it has not.
Mr. Haughey Mr. Haughey
Mr. Haughey: We legislate against abortion.
Mr. Kelly Mr. Kelly
Mr. Kelly: The State has a role there and again my answer is instinctive. I cannot define it by logic or argue my way through it, but in that area I would agree. It would be easy to trip me up by saying: “Where do you draw the line between contraception and abortion?” The Minister has the word “abortifacients”, just as Senator Cooney had, without definition in the Bill. I have heard it argued that the intra-uterine device acts abortively, in which case it is an abortifacient, if language means anything.
The State is within its rights in forbidding abortion and I would oppose any attempt to shove the State out of that area. I am saying, in response to exactly the same instinct, that trying to legislate in this private, intimate, notoriously volatile and mercurial area of life in the way we have been doing since 1935 is something which should be outside the sphere of the State. That is why I say  every section of the Bill should be withdrawn except section 13. Repeal section 17 of the 1935 Act and see what happens. If abuses develop we can sit down quietly and discuss how best to regulate them.
In regard to abuses—I know I am treading on a mine field—I am not sure what an abuse would be. I do not mean that facetiously but I am not sure that the public good is served by trying to impose excessive difficulties in the sale of, or dealing in, contraceptives. I will not explore that theme. There can be two different honest views in regard to this whole area. Whatever degree of control might be imposed if abuses develop or what a majority felt represented an abuse, it does not alter the fact that we ought to repeal a law which should never have been enacted.
I want to draw attention to the fact that the Bill contains a number of conceptions, phrases and ideas which it purports to deal with but which are not defined and which any attempt to define either by the House or by the people who will be called on to enforce it will result in absurdity. For example, let me cite the section which I will refer to as the laughing stock section, section 5 (1) (a):
5. (1) A person shall not import contraceptives into the State unless—
(a) they are part of his personal luggage accompanying him when he is entering the State and their quantity is not such as to indicate that they are not solely for his own use, or
I will not make the House or the Minister look more ridiculous by exploring that paragraph. It is not a question of what will the neighbours think. I do not think the neighbours would believe that we could be seriously enacting a paragraph like that. Who is going to decide this; who is going to police it? Can you imagine the dirty jokes this paragraph will give rise to? Of course, the truth is there is not the remotest intention to enforce this on the part of the Minister or anyone in the public service from top to bottom. It will be a dead letter from the day the President puts his hand to it.
 Let us assume that the Minister intends to enforce it. Will he tell me who will make the judgment on whether the material being imported is likely to be intended only for the use of the person importing it? Is it to be some beardless 19-year-old customs officer at Dublin Airport? Will the Minister solemnly sit in judgment on it? Are we likely to send it to the courts?
The same section contains a provision that contraceptives are to be included in the table of prohibited goods inwards contained in section 42 of the 1876 Customs Consolidation Act. That list contains things like uncustomed tea, sugar, coffee, liquor and so on. The next section deals with gunpowder, explosives. The only cognate thing in the table is obscene articles. Is the Minister seriously thinking of using an 1876 statute for the purpose of outlawing the importation of contraceptives?
Section 4 of the Bill has this phrase, “bona fide for family planning purposes”. Sir, it will surprise you to know perhaps that this Bill is entitled the Health (Family Planning) Bill, 1978, and would you believe me when I say that the phrase “family planning” is not defined throughout the Bill? What is family planning? It is used euphemistically to cover a whole lot of operations, but what is it? And what is “bona fide family planning”?
I should like to be told about these things. I would have to be told these things if I were an independent Deputy before I could make up my mind on how to vote. I have often heard it said by preachers, or I have read it, that in the Christian ethic family planning must be responsible—I am not thinking about the method, I am thinking about the object——that it cannot be purely selfish. Who is going to draw the line here? Suppose a couple get married and they decide they cannot afford a child at the moment. Such a decision might be made by a couple on £60 a week or on £600 a week. It would depend entirely on their life style. Are we to have a doctor adjudicating on this? Who will say whether it is a selfish refusal to have children? Who is to decide whether they are in good faith? Who is going to draw up the catechism by examination on which  anyone can come to a conclusion in regard to this matter?
That is another straw in the wind which tells me as plainly as if it were printed in black and white that there is not the slightest intention to enforce this law. It is not enforceable. Both sections 5 and 6 contain references to licences. I would draw attention to section 5 (2) (b):
The Minister may refuse to grant a licence under this section to a person who has been convicted of an offence under this Act or of another offence of such a character that, in the opinion of the Minister, it would be inappropriate that he should hold such a licence.
A master has to run a school in a fairly arbitrary way. He cannot draw up a comprehensive criminal code for dealing with the school boys. He has not got it written anywhere that it is criminal to set fire to a classroom, or something like that, but an instinct tells him it is, and the same instinct tells the school boy it is a serious offence and he cannot complain if he is punished for it. It is quite a different matter when we are dealing with law which we are supposed to apply to adults. What will guide the Minister's opinion in regard to somebody's criminal record which would render it inappropriate that such a person should hold a licence? If the Minister means that he has been convicted of an offence under this Bill, let him say so. If he does not, let him say so. Supposing a man has some ordinary smuggling convictions against him, will that disqualify him? Will prosecutions for brothel-keeping disqualify him? Will convictions for unlicensed practice as a chemist or a doctor disqualify him?
Not only is the thing uncertain but there is the possibility of the thing being constitutionally objectionable because on the face of it it gives the Minister power to impose a bar on somebody for something which is not related to the objects of the statute. It could be a bar intended purely to punish somebody, to get them out of business. The courts recently found that all laws enacted here have to be interpreted with the presumption in favour not only of the Oireachtas but also of the people who carry them  out—it has to be presumed they will be carried out according to constitutional criteria. However, there are no criteria obtainable from these provisions which will show where the bounds of the Minister's opinion are in a matter like this. There is nothing which will clearly indicate when the point has been reached when the Minister will take into account a person's criminal record which has no bearing whatever on the fitness of a person to import contraceptives. That is another part of this laughing stock section.
Section 6 entitles the Minister to insert conditions into the licence for the manufacture of contraceptives. It is notable that though the Minister will issue the licence in accordance with regulations under a later section, the regulations are not required to set out the conditions which the Minister may attach—in other words the conditions do not necessarily have to be part of the list which the regulations contain. On a quick reading of it, it seems to me that the conditions are floating absolutely free—that the Minister can pull conditions out of the air because they are not prescribed by legislation and, therefore, will not come before the House for scrutiny.
Here again there is a possibility of an objectionable exercise by the Minister of a delegated power. While I do not believe it will ever arise or that it will ever be enforced, there is a potential constitutional weakness in that section which the Minister, if he is really interested in producing a workable Bill, should take a look at. Effectively, what he is giving himself in sections 5 and 6 is the power to exclude from the benefit of a licence persons for reasons which are not disclosed to the House now and will not be disclosed to the House hereafter.
In section 8 (5) there is a very curious provision. Again it is a sign to me that the Bill is not really intended to be taken seriously. This section deals with forged or fraudulently altered prescriptions or authorisations, and it says in subsection (4) that a person shall not have in his possession a forged document purporting to be a specified document or a specified document which has been  altered with intent to deceive. Let us call both these things a forgery because the second part of the sentence has the ingredients of forgery. It is an offence to have a forgery. But the Minister may by regulations declare that in circumstances specified in the regulations subsection (4) of this section shall not apply to persons who are of a specified class or description. The Minister proposes then to give himself the power to exempt from prosecution for forgery people of a specified kind. What is the reason for that? Why should anybody be dispensed, least of all by the Minister, from prosecution for having a forgery? Is it possible to imagine a document such as subsection (4) envisages, a forged document purporting to be a specified document, in other words a prescription, or a specified document which has been altered? Both of these are cases of fraud or forgery. But the following subsection purports to empower the Minister to exempt from the application of that rule persons who are of a specified class or description. That provision, too, seems to me to be constitutionally objectionable. No matter what assumptions are made in the Minister's favour, the idea that he can dispense from the application of a criminal section persons on criteria which are not disclosed and do not need to be disclosed to the House is one to which there is obvious constitutional objection.
The last of the points I want to raise on the Bill arises on section 11 in which it is stated that nothing in the Act shall be construed as obliging any person to take part in the provision of a family planning service. The side note to the section describes it as the “conscientious objection” section. I do not raise this in a contentious spirit, but because I think this could happen—I would like to ask the Minister to ask himself what concrete effect is this conscientious objection going to have—for example, if a shop assistant in a chemist's shop absolutely refuses to touch this line of business altogether—and it could be a very busy city shop with a great deal of work in this particular sphere but not quite so busy as to justify having a staff large enough to allow one of them to keep away from this kind of work  altogether—and the employer says “I am sorry but I will have to let you go because I can only afford to keep one or two assistants and you will not do this work”, will that be a ground of unfair dismissal in the sense of the legislation on unfair dismissals? If a person is dismissed for that purpose, but the reason is concealed and not openly said to the assistant, is that a ground of unfair dismissal? In other words, it sounds fine in section 11 to provide protection for conscientious objectors, but this section is not specific enough and does not really give much protection to somebody in a situation such as I have described.
The last thing I want to say is to repeat with a little more emphasis what I have said about the non-intention ever to enforce this Bill. At the moment the provisions of section 17 of the 1935 Act are in force. I would like to ask the Minister when was a prosecution last brought under that section? In five years at the Bar I saw only one prosecution under section 17; it was in Naas, and a very silly and squalid half-hour's work it was. I have never heard since then of a prosecution under that Act. It is simply not being enforced. I am not pleading for its enforcement; quite the contrary, that law should never have been enacted. Has a prosecution been brought against the persons responsible for putting up contraceptive slot machines in UCD and Trinity College? The answer is no. Why not? Are they not breaking the law? Is it not the truth, then that there is not intention of enforcing the present law, and still less of enforcing the law which it is here proposed to enact?
It quite frequently happens that laws are not enforced; some laws are virtually never enforced. We have had here for about 16 years a law against dropping litter. The 1963 Local Government (Planning and Development) Act contains a section which makes it an offence to drop litter, and litter is very exhaustively defined; cigarette ends qualify as litter for the purpose of making punishable somebody who drops them in a public place. Not too long ago I tried to extract from Deputy Barrett, the Minister for the Environment, some statement as to the degree of enforcement of that Act and it became clear  that it was zero rate. The Minister knows it is zero; he has never had any of his friends or constituents prosecuted for dropping litter and neither have I. There is no way of enforcing the Act. I do not know whether there was an intention originally to enforce the Act. Probably there was; 1963 is a long time ago and they were simple days compared with 1979 and perhaps there was a genuine intention to enforce it but it has not in fact been enforced. Another example is the Export of Documents and Pictures Act, 1945, which purports to control the export of documents and pictures but does not even take the trouble to specify what offence is committed by somebody who broke the law, but it is a law that has not been enforced. I could spend all day reciting such examples.
There is this distinction between the Minister and the simple people of 1945 with their celluloid collars and buttoned boots who enacted the Export of Documents and Pictures Act or even the people of 1963 who enacted the law against litter in that they thought they were doing something which could be made to stick. But the Minister opposite me here knows in his heart and soul, knows in his boots, that this law will not be enforced. It cannot be enforced, and the fact that it so patently cannot be enforced is a signal to me that there is no intention of enforcing it. It is unworkable. It is incapable of being even interpreted, let alone enforced because of the absence of definition of the simple expression “family planning”, the absence of a definition of “bona fide family planning”, the implicit throwing on the shoulders of beardless customs clerks the duty of deciding whether a person's importation exceeds his likely personal needs, the throwing on the shoulders of a doctor the duty of deciding whether a married couple are being selfish or otherwise in deciding not to have children for the moment which I take bona fide family planning to be. It is a flagrant unworkability. It tells me as plainly as if it were written in black and white that there is no intention on the part of the Government to do more than go through the motions of tidying up the law.
I have no doubt that the delay in bringing this Bill on and in debating it  here in the House is related to a secret hope in the back of the Minister's mind that he will be got off the hook by the courts who are even now hearing or considering a case brought by one of these clinics which this Bill, if it is enforced, will have the effect of closing down. Undoubtedly if the courts were to give a pronouncement in favour of these parties the Minister could with a perfectly good conscience come in here to suspend going further with this Bill until the Supreme Court had ruled, and the Supreme Court might very easily let him off the hook by effectively destroying whatever is left of section 17 of the 1935 Act. This matter should not be the Minister's job, because it is not primarily a health matter; but if he is really going to take this side of his job seriously what he should do is scrap the rest of the Bill and simply ask the Dáil to enact section 13. The Minister is absolutely on the right lines in regard to the main part of his job, but when I find that he is saddled with this Bill I must ask whether the Minister for Fisheries was so far out of reach that he could not be given this job, because it is a real Lenihan job.
An Leas-Cheann Comhairle Sean Browne
An Leas-Cheann Comhairle: The Chair fails to understand how the Minister for Fisheries comes into this matter.
Mr. Kelly Mr. Kelly
Mr. Kelly: The Bill has all the comical flagrancy of a Lenihan measure. It would be more in keeping with the style of the Government to have asked the Minister for Fisheries to sponsor the Bill rather than to leave it to the Minister for Health, who in regard to the rest of his functions is doing a serious job. I deprecate the way in which the Minister's efforts in the field of health in regard to exercise and smoking are so often sneered at by references to personal remarks about himself, but I trust that he will not be deflected by these remarks. However, in terms of this Bill the Minister is doing a bad day's work for himself, and is making himself look ridiculous in the eyes of people whose opinion, I am sure, he would value. This is a half-baked, hot and cold piece of sham legislation.
Mrs. Ahern Mrs. Ahern
 Mrs. Ahern: There is no need to speak at length on this Bill as the Minister has consulted already with the various organisations and individuals who are interested in the subject of contraception and whose views are enshrined in the Bill. Deputy O'Hanlon has spoken on the matter from the medical viewpoint, and considering that there is hardly a more serious Deputy than he in the House his contribution must be given the attention it deserves. The Minister deserves much credit for introducing this measure and for trying to bring some order into the present situation regarding the availability and distribution of contraceptives. Since the McGee case we know that there has been a free-for-all situation, that the floodgates have been opened, but this Bill represents the first genuine effort to close those floodgates.
What I consider to be the most interesting aspect of the Bill is that the availability of contraceptives is being confined to the family unit. This measure truly deserves the title of a Family Planning Bill because the emphasis is on the family. We appreciate that a family must be free in the exercise of their conscience as to their choice of means for limiting their families; but we are aware, too, that according to the teaching of some churches, the family are not free to use artificial means of contraception. This Bill has brought more into the open than ever before the whole question of natural means of family planning. Those people involved in clinics and Catholic marriage advice bureaux where advice is given to married or engaged couples on the natural means of family planning, deserve great credit for the work they have been doing in this sphere of responsible parenthood.
In limiting the availability of contraceptives to the family unit the Minister is considering the common good and ensuring that the slot-machine contraceptive idea is outlawed. While everybody should have freedom of conscience, it is unfortunate that too many people confuse the word “freedom” with the word “licence”. A genuine effort is being made in the Bill to ensure that these two words will not be confused in this context. The Minister has proved his sincerity, too, in giving every help possible  towards the setting up of natural family planning services. He has offered financial aid for any such service. It has been said that the multi-national groups who are involved in the distribution of contraceptives are pushing, with all the power they have in terms of finance, their own commercial interests. This Bill will ensure that whatever finance is made available by the State in respect of family planning will be used for the promotion of the natural methods. We look forward to the WHO international seminar later this year on natural family planning methods.
Deputy O'Hanlon has outlined some of the ill-effects of oral methods of contraception. It is surprising that after the number of years that oral contraception has been available there has not been an outcry against it. After the passing of this Bill increasing attention will be focused on the ill-effects of oral contraception and I am convinced that many more people will think in terms of the natural methods of family planning.
The Bill has been criticised on the basis that it places too much onus on the doctor, but there is provision for any situation in which a doctor on the grounds of conscience might object to prescribing contraceptives. However, those doctors who co-operate with the Minister will be doing a great national service in strengthening the moral fibre of our society.
I am glad that the Bill provides for the outlawing of abortifacients and I trust that later there will be a ministerial directive outlining what the medical profession consider to be abortifacients. Fortunately, too, the Bill prohibits the wholesale advertising of contraceptives, confining such advertising to medical journals.
Towards the end of his very long and informative introduction to this Stage of the Bill the Minister stated that it represents an Irish solution to an Irish problem and said that he had not regarded it as necessary that we should conform to the position obtaining in any other country. The Minister has done a very good day's work. I trust that the Bill will be regarded as an ideal measure in this whole area of family planning. It is only right that this matter be placed in  the field of health. No doubt families and young people in the future will be grateful to the Minister for what he has done.
Mr. Horgan Mr. Horgan
Mr. Horgan: Tá náire orm mar Theachta Dála bheith anseo chun an ábhar seo a phlé. Bímíd i gcónaí, is féidir liom a rá, ró-lag agus ró-dhéanach. Agus rud eile, is fear mise, is fear an Teachta Boland agus is fear an tAire. Cábhfuil mná na hÉireann? Nil mise ag trácht ar an dream thíos i gCorcaigh ach ar mhná na hÉireann ar fad. Bhí an Teachta Ahern ag labhairt linn cúpla nóiméad ó shin agus creideann sí go hiomlán, agus admhaím é, sa mhéid adúirt sí, ach creidim féin nach labhraíonn sí ar son mná na hÉireann ar fad. Níl mná na hÉireann anseo. Tá siad lasmuigh den Teach seo. Tá siad ag fanacht agus ag feitheamh orainn, agus céard atá san mBille seo dos na mná sin? Níl faic ann. Ní chuireann an Bille seo feabhas ar chor ar bith ar an dlí. Beidh an dlí níos measa, i bhfad níos measa, i ndiaidh an Bhille seo ná mar atá sé i láthair na huaire.
This is an extraordinary Bill for us to have to deal with at this point in our national history. I regard it as a piece of political hypocrisy second only to that of Pontius Pilate. To assess that, we only have to look at the record in this area of the party now introducing it. I speak with some knowledge of this because with Senator Robinson and other Senators, when I was a member of the other House, I was partly responsible for the first legislative effort in 30 years to change a law that had never been passed. That was almost ten years ago.
In the intervening decade two things emerged from the ongoing debate with considerable consistency. One is that Fianna Fáil in government and in opposition have an unblemished record of total opposition to any attempt, however well meaning or however radical, to change the law on contraception. When I was a Member of the other House the Fianna Fáil Senators were led many times by that kind and good man, the later Senator Thomas Mullins, who must have done many things that he would have preferred not to on behalf of the party, tramping through the lobbies not  just to defeat a Bill but even to prevent any rational discussion of it in one of the two Houses of the Oireachtas to which Members are elected. Fianna Fáil maintained that record in this House. There is another consistency that I would draw to the attention of the House, that is the fact that in that intervening decade it was the Labour Party alone who consistently voted in favour of changing the law on contraception. The measures which the Labour Party advocated were never passed into law. They may not have been ideal measures. The Bill introduced by the last Government was certainly not by any standards an ideal Bill but the Labour Party has a record that is honourable. Set beside the record of the Fianna Fáil Party it makes that party's claim to radicalism look very thin indeed.
It is no secret that in the period coming up to the last General Election, the failure of the previous Government's Bill had helped to make the present situation, a situation that has existed since the McGee judgment in the Supreme Court, an election issue. Even before they left office in 1973 the previous Fianna Fáil administration admitted as much when the Taoiseach told a Fianna Fáil ArdFheis that nettles would have to be grasped. We have known for years that nettles would have to be grasped. What nobody would have expected was that Fianna Fáil would not only be the last to grasp the nettles but that they would don so much protective clothing before they did so. Coming up to the last election various Fianna Fáil spokesmen deliberately made an election issue of this problem and in their attempt to do so made very many successful attempts to confuse the electorate about exactly what they were promising. They suggested that when they got back into office they would introduce and pass a Bill which would be all that would be needed in the present situation. The Irish Times on Monday, 17 January 1977 records a number of speeches at the third Fianna Fáil national youth conference on the previous day in Dublin.
The first two paragraphs read:
Delegates at the third Fianna Fáil  national youth conference in Dublin were told by Mr. Desmond O'Malley, TD, yesterday, that the party would introduce legislation on contraception when it was back in office.
Replying to calls for Fianna Fáil action on the issue, Mr. O'Malley, Opposition spokesman on Industry and Commerce, said that there was a great feeling in the country that in many areas of the wider plain of civil liberties, “we will have to get to grips with the reality of the world we live in”.
Later the same newspaper records Mr. Tom O'Donovan down in Clontarf saying that:
The party “has far too long turned a blind eye to family planning”. He called on a Fianna Fáil Government to bring in new legislation on contraception and set up a comprehensive system of family planning clinics throughout the country. No Government had a right to impose antiquated morals on a progressive society. If a woman needed to have access to contraception, then no Government had the right to deny her this right. If a mother was deprived of her health, the family suffered, and if this happened society suffered.
Let us go back to that splendid oratorial flourish of the present Minister for Industry, Commerce and Energy:
We will have to get to grips with the reality of the world we live in.
Can anybody with two eyes in his head, whether one be blind or not, compare that sentence with this Bill and say this Bill represents a getting to grips with the reality of the world we live in? Can anyone who understands plain English compare this Bill with the statement by Deputy O'Malley, as he then was, that this was a problem in the area of civil liberties with which they would have to come to grips? They have come to grips with it because in this Bill they are objectively reducing the area of civil liberties which existed when Deputy O'Malley was speaking to the Fianna Fáil youth conference. That was the Fianna Fáil approach to civil liberties, to reduce  them. It is certainly the situation in relation to this Bill.
Among the other aspects of this Bill which we will have to consider is the context in which it is situated. When Deputy Ahern was speaking a few minutes ago she suggested it was a noble effort and would be widely regarded in future as something of which the Minister, the Government and the country could be proud of. This Bill will not be a monument to anything except the Nervous Nellies in Irish society today who do not have the courage inside this House or outside it to face reality, and the courage to take the appropriate action reality demands.
Already there is a distinct sense abroad that the Minister for Health wants to bury this Bill as soon and as deep as he can. He will not mind if the Supreme Court heads after it with picks and shovels. So far as he and his party are concerned it will be buried and the sooner and the deeper the better. I believe the process may well be reversed, and that few things may do as much damage to the reputation of the Minister and the Government as this Bill we are dealing with here today.
There are two points of view about the individual and party responsibilities of Members of the Oireachtas faced with this Bill. One is that we would all in this House like to pass a realistic, sensitive, caring measure which would meet the real needs of the situation, but that we are to some extent afraid to do so because our constituents, God love them, being more conservative and timorous than we are, would immediately sweep us out of our seats. I do not believe this to be the case. I do not believe that our constituents, by and large, are of this frame of mind. Even if they were, we have been elected to this House not just to reflect our constituents' opinions, not just to pass their prejudices into legislation in as precise a form as possible, but to provide some leadership in Irish society in general. Here is an issue above all where this kind of leadership is needed. This Bill fails to provide that leadership. It fails to match the rhetoric during Fianna Fáil's period in Opposition. It fails most  lamentably to meet the objective needs of the present situation.
In passing, there is one point to which I would like to refer, that is, the section of the Minister's speech in which he made it quite clear that this Bill was not, as he put it, opening the floodgates to anything. Deputy Ahern went further, and was more accurate in a sense, when she said it was closing floodgates. I would dispute the definition of floodgates because access to contraception is still nothing like as widespread or as nationally organised as it ought to be to meet the needs of the vast majority of couples in this country.
The Minister is in a peculiar position. On the one hand he has people who would like to see positive legislation for family planning and, on the other hand, he has people who believe any legislation involves liberalisation of the existing law. The message must go out loudly and clearly from this House—because it is certainly not coming out too loudly and clearly anywhere else—that this measure does not involve any liberalisation of the existing law. Not only that, but it involves a very severe restriction on the situation as it exists. For the sake of family planning in Ireland, even bona fide family planning to use the Minister's famous phrase, it would be better if the present situation were allowed to continue as it is.
Among the people who are afraid of any legislation because they think it represents a liberalising tendency on the part of the Minister and the Government, there are people who seriously misunderstand the objective needs of the situation and who seriously misunderstand the effect of legislation. There are people who have no intermediate psychological position between conceiving of something as banned and conceiving of something as compulsory. We are very prone to this. We tend to think something must either be banned or be compulsory, that it must be banned until it becomes compulsory, or compulsory until it is banned. They do not realise that liberalising legislation, if such were being discussed here today, does not force anybody to use contraception. It simply opens an option which is a legitimate option for  adult human beings in Irish society or, indeed, in any society today.
The whole question of family planning is not by any means new in Irish society. Family planning itself is only one aspect of a whole spectrum of measures of population control which have been used by individuals, by organisations, by societies and by Governments from time immemorial. It is absurd for us to approach this Bill as if it were the first time anybody in this country thought about or acted on the idea of population control. We in Ireland, like people in every other society in the world, have always practised one form or another of population control. One of the differences between Irish society and other societies has been that between 1935 and the McGee case, one particular form of population control, namely contraception, has been comparatively inaccessible. The irony of that is that this has forced an undue reliance on other methods of population control, methods which in themselves have often been far more savage and far more socially and personally disruptive than the simple private practice of family planning through contraception.
We have controlled the size of our population traditionally by emigration. We have controlled it by social pressures which lead to late marriage or to no marriage at all. One-third of the men born in Ireland in 1900 never married at all. A statistic of human deprivation and misery greater than that would be hard to find.
It is arguable also that we have to some extent controlled our population by abortion and infanticide, even though both are illegal. Late in 1976 an American sociologist in a thesis presented to the University of Stockholm suggested that, while the Irish had traditionally rejected the idea of abortion, they have on the other hand killed and abandoned children after birth more often than have the English, Scottish or Welsh. Mr. Rose, the gentleman concerned, had his report dealt with in some detail by Dr. David Nowlan, Medical Correspondent of The Irish Times on 24 December 1976. This report pointed out that, statistically  speaking at any rate, figures for infanticide and concealment of childbirth over a period of almost 100 years show significant differences between Ireland and the other countries under examination. Dr. Nowlan quoted a piece from The Cork Examiner of October 1929 where a judge in County Cork was reported as having said that “the number of newly-born infants in the country who were murdered by their mothers at present surpassed belief”.
It is sometimes alleged that the introduction and more general availability of contraception leads inevitably to abortion. This is plainly untrue as has been evident to many people for quite some time, but there is some interesting statistical evidence in Mr. Rose's report of a sample that he made of Irishwomen who went for abortion to London in relation to their previous history. I quote again from The Irish Times:
At the time of conceiving the pregnancy which they were seeking to have terminated, 76.59% of them were using no contraceptive method at all. Another 13.29% were using some kind of rhythm or “safe period” method while 5.31% were using condoms and 4.25% were using withdrawal or coitus interruptus.
There you have quite unambiguous evidence not only of the lack of connection between contraception and abortion as is frequently alleged, but of an apparent connection between the lack of contraception and recourse to abortion in circumstances in which contraception is not available. The Act which this Bill seeks to repeal was introduced in 1934 at a time when the legislative hysteria on the subject was reaching extraordinary heights. The Criminal Law Amendment Bill, 1934, as it was when it was first introduced, was basically a Bill to outlaw prostitution and similar offences. On the Committee Stage debate in the Seanad of the Criminal Law Amendment Bill, on 6 February, 1935 a Senator Moore introduced an amendment proposing a subsection which would enact that every girl under the age of 18 years should wear a distinctive costume or armlet. That gives some flavour of the spirit of the time. This was the kind of moral  code which legislators had at the time that Bill was introduced. The Attorney General of the time went to some pains to minimise the effect that this would have on the availability of contraceptives. I quote from the Official Report of 28 June 1934, column 1246, volume 53:
This Bill is the result of the recognition of all members of all parties of the necessity for strengthening the law dealing with sexual offences, particularly with regard to offences against young girls.
That, according to the Attorney General, was the key issue that the Bill had to face, and nowhere in his speech did he give any undue prominence to the severe restriction on personal liberty which section 17 of the Bill was proposing to introduce.
It is interesting to note that the subject was regarded as so sensitive at that time that it was committed to a select committee who met in private. It is also interesting to note that this select committee reported in favour, if anything, of a more liberal position than was written into the Act when it was passed, a position which finds itself reflected in the Bill currently before us. In column 2020 of the same volume of the Official Report, it is stated:
That committee...recommended that the sale of contraceptives should be controlled by similar conditions as those which control the sale of dangerous drugs.
Certainly the committee did not recommend that their sale should be entirely prohibited or rendered a grave offence.
Even in 1935 there were some voices of sanity. In the Official Report of the Seanad of 6 February 1935, column 1248, Volume 19, Senator Mrs. Clarke spoke with sound common sense:
...this is a Catholic country and if the laws of the Catholic Church prohibit the use of these things, well, then, I do not think we have really a terrible lot to fear.
Would to God there were a few more Mrs. Clarkes around today. If there were we would not be facing in so many directions at once as we are attempting  to do on this Bill. Common sense was not confined to Mrs. Clarke. In the Seanad on the same day the Leader of the Labour Party, Senator Johnson, described this aspect of the Bill dealing with contraception as, and I quote from column 1257 of the same volume:
...a libel upon hundreds and perhaps thousands of honest, God-fearing, holy women. It is putting their practice in the same category as brothel-keeping and prostitution.
Even in 1935 there were people with the opposite point of view. Senator Comyn described section 17 as “more valuable than any other clause in this Bill”. He went on to say at column 1248 of the same volume that:
...the trade in these contraceptives would mean the destruction of this race, and it is on these grounds that I am in favour of this clause.
Further on he said:
...its defeat ...would be corrupting the youth of this country.
A more in-between position was held by Senator Gogarty who responded fairly strongly to the allegations of racial suicide as a result of contraception and pointed out that there is a worse thing than racial suicide and that is racial syphilis. At column 1255 he is reported as saying:
I am sorry Senator Moore did not discriminate between the medical and prophylactic aspect of these drugs and the use of them, which I cannot naturally uphold, in order to allow people to sin without having the ordinary consequences.
That was a typically Gogartian attitude to the problems in hand at the time. I very much suspect that there was no real call for the introduction of that legislation at that point in time. Even to this day we have not been shown the report of the Carrigan Committee on the basis of which this legislation was drawn up. All Ministers for Justice who succeeded the Minister for Justice of that time, including the former Minister, now Senator Cooney, have resisted attempts  to publish that report, or even any excerpts from it. I believe that if that report were published it would show that there was not this groundswell of support for a change in the law on the basis of which, supposedly, the law was changed.
Lest I be accused of being unduly chauvinistic about this, it is only fair to point out that this attitude to contraception was widespread in other countries as well and among the Nervous Nellies of the period. In 1934 the Anglican Bishop of London told the House of Lords that when he heard of 400,000 contraceptives being manufactured every week he would like to make a bonfire of them and dance around it. There was in this area a kind of national hysteria which, to my mind, was not a reflection of any real feeling among the vast mass of the population, but it was one which had very dangerous and authoritarian overtones. In relation to contraception in particular it finds its most eloquent expression in a booklet entitled National Action, A Plan for The National Recovery of Ireland published under a pen name by the Gaelic Athletic Association in August 1943. The pseudonymous author of this document referred several times to the question of contraception and to what he called the problem of national population and national action. He said, on page 119:
Some of the wealthiest countries in the world have falling populations: not because of economic stringency but from deliberate violation of the law of Christ. The most race-ravaging and insidious world cause of small families, or no families, today, is race suicide or immoral birth control. This national blight, State-encouraged in several countries, has already, in our own time, brought some of the greatest and proudest nations on earth to their knees. The plague is spreading. In a non-organised country like ours, prone to imitate, it would be too much to hope that we should escape entirely from this race-rotting iniquity. It is vigorously, but rather single-handedly opposed by the Catholic Church. This evil cannot be stamped out by the Church alone.  The Church's efforts must be equally and positively supported by the State. Neither half-measures, restraint, “kid gloves” nor political caution will avail against it. First offence warnings and petty fines for traffickers must be replaced, without mitigation, by penal servitude, expulsion of aliens, and the lash.
It is strange to look back and realise that only 30 years or so have passed since those words were written, not only written but the booklet went pell mell into the second edition because the first was sold out so quickly. A lot has happened in those intervening years. Not only that, but I would argue in relation to what happened 30 years ago that it was simply an attempt by a small and unrepresentative group of the population, as part of a kind of national hysteria they tried to foment, to seriously and calculatedly restrict an important area of civil rights. In the same way I believe the same attempt is being made today to stir up the same kind of hysteria we had in the late 1920s and 1930s in order to prevent any liberalisation of the legislation we are discussing.
There are two main aspects of the Bill we are debating, each of which has its historical dimension. I have dealt already with the historical dimension of the question of access to non-medical forms of contraception. I should like now to turn very briefly to the question of control of the advertising and sale of contraceptives. This is a matter which has not received very much attention so far in this debate. Yet it is an absolutely fundamental one, because it is absurd, dishonest and hypocritical to talk about people having access to whatever means of contraception appears to them to be most appropriate without at the same time ensuring that they are enabled to discover where and how they can obtain the means that they choose.
On censorship— and this is basically what we are talking about—unfortunately the position of the legislators when they passed the Act we are now engaged in modifying was just as hysterical as was their attitude to the availability of contraception. This  hysteria goes back even further, to a celebrated report known as the Report of the Committee on Evil Literature, set up in 1926, which included the Professor of English Literature at University College, Dublin, and a number of other worthies, and which reported some time later. One witness who gave evidence to the committee believed that Rabelais and Balzac should be banned and was of the opinion that Bowdler's edition of Shakespeare was to be preferred. The committee, in its finally published report, went into some detail about the whole question of the advertising of contraceptives. It is interesting to note, in passing, that the report as a whole is infused by a very strong class element. The worthy members of that committee believed that it was quite permissible for certain people to have access to certain kinds of literature because they were educated, sophisticated and altogether of a social class which is not liable to be corrupted. But they had a Nannyish, paternalistic irrelevant concern for the poor of the cities of Ireland and indeed of the countryside as well. The kernel of the report which was enacted subsequently in that Act in relation to censorship is on page 15 and reads as follows:
The effects of an indiscriminate advertisement and circulation of the publications are not to be judged by the professed original intentions of some of the authors. Undoubtedly the propaganda has now assumed the character of a widespread dissemination of knowledge propagated to free vice of one of its most powerful restraints. The effect upon general morality must ultimately be very bad. The witnesses were practically all agreed that this propaganda is offensive to the preponderant moral sense of the community of the Saorstát. The one or two witnesses who expressed doubts as to the desirability of prohibiting absolutely the publication and circulation of the books and pamphlets commending the practice of contraception agreed that the matter and advice contained in them should be left entirely to the medical profession to deal with. But the great majority of the witnesses expressed  the strongest repugnance to the toleration of such publications.
It is a matter of wonderment that 50 years almost after this report was written we have a Minister for Health coming into the House with provision on censorship which finally achieves the position adopted by two of the most liberal witnesses of the Committee on Evil Literature set up in 1926. After all these years we have now achieved a position that was liberal in 1926, by deciding that the advertisements for contraceptives should be effectively confined to newspapers and journals circulating to the medical profession. This is another area of unworkability. Is the Minister going to ban The Spectator or the New Statesman? Is he going to ban any magazine, however prestigious, which happens to have among its small advertisements discreet announcements as to the availability of contraceptives for sale? Is he going to legislate into existence a situation where these magazines and newspapers will be liable to prosecution and very serious penalties for carrying advertisements which are, in the normal course of events, completely unexceptional?
The Censorship of Publications Act which we are attempting to amend in this Bill was discussed at length in the Seanad in April 1929. One Senator, Sir John Keane, again, unfortunately, in a minority, had a certain amount of common sense to utter on this issue. According to Volume 12 of the Seanad Official Report, column 61, he asked:
Why picture sex immorality and unnatural vice as corrupting and degrading and not picture a lot of other forces as degrading such as drugs, drinking etc.?
At column 62 of the same volume he drew attention to the anomalous situation where:
A book may also combine sex and economic heresy, and sex and Gaelic intensification.
One of his most sensible comments was that at column 70 which was as follows:
We have had forty or fifty years of free education, yet despite all that we  have drawn a picture of the people of this country showing them thirsting for moral garbage in the most prurient and suggestive Sunday papers, unable to exercise a wise choice and so lacking in the power of discernment that undesirable matter must be forcibly withheld from them.
That was almost a lone voice in the Seanad of the time. In retrospect we can see not only that it was a sensible voice but that it is still a sensible one, and the kind of sentiments it expressed do not, unfortunately, find an echo in the thinking of the Minister and his Department on this and related issues in the Bill.
In his introductory speech the Minister went to considerable pains to point out the degree of consultation he carried out. He said:
...most of them took the view that the present position, which allows any person to import contraceptives for his own use, but in which they cannot be sold, should not be allowed to continue. It emerged clearly that the majority view of those consulted was that any legislation to be introduced should provide for a more restrictive situation in relation to the availability of contraceptives than that which exists by law at present.
I accept that as a factual account of the Minister's process of consultations, but the point for the Minister to decide is not what a majority of institutions—most if not all of them which are conservative by nature by virtue of the fact that they are institutions—have called for restriction rather than liberalisation. His job is to implement the wishes of the Government regardless, if necessary, of the views of institutions. He should ensure that those governmental wishes framed in legislation are such as meet the needs of individuals and families in this situation and not the often embattled position of institutions.
I find it extraordinary that the Minister can pretend that the Bill meets the real needs of the situation. It meets one need certainly, the need of the Fianna Fáil Party for a Bill that will get the support of the Fianna Fáil Party in the  House but that is a political need and not a family planning need, a health need, a social need or any need. That is the Bill's major and, perhaps, its sole function, to get something through the House at whatever cost to satisfy the letter of the Fianna Fáil promise, although not the spirit of their rhetoric, and to let any further work of legislation be done in dribs and drabs by private individuals in the Supreme Court or, perhaps, outside it.
Another interesting aspect of it is that the Bill has been greeted since its publication by a number of comments from a number of different sources. There has been, however, a thunderous silence from all the churches, churches who are not slow to pronounce when they feel they need to pronounce on matters of public morality. I am reminded of the admonition made by Sherlock Holmes to Dr. Watson when he drew Dr. Watson's attention to the question of the dog in the night. Dr. Watson said: “But the dog did not bark in the night.” “Yes indeed,” said Sherlock Holmes, “the important thing is, my dear Watson, that the dog did not bark in the night.” We have evidence here in statements and silences that the Bill has been primarily framed not to satisfy the individual and private personal needs of the people in family situations in Ireland but the needs of institutions and powerful interest groups who may or may not have the welfare of the family at heart—I am not disputing their bona fides in this matter at all. However, I am disputing the Minister's action in looking for an institutional consensus on a matter which is fundamentally a personal and private one.
The situation has changed considerably over the years and with particular rapidity since the judgment in the McGee case and the opening up in various areas of a number of family planning clinics. At the time of the McGee case and, one could argue, for some time before that case this was a majority issue in the sense that a large number of people, perhaps objectively a majority of people, would have been prepared to see legislation that would reset the McGee decision in a liberal context and not in the restrictive context  in which it is not being inserted by the Minister's Bill. The pressure for reform since the McGee case has lessened because of the success of the family planning clinics in providing a much wider range of contraceptive advice and materials to a much greater number of people than was possible before the judgment in the McGee case. Naturally, when the means and the advice are more widely available than before the pressure for change lessens, but I predict that if the Bill is passed—I have every reason to suspect it will be passed exactly as it has reached us—the pressure will again build up and the pressure for change in the law will then become a majority issue.
I have not believed for ten years as a legislator here and in the other House that I was representing a minority interest in wanting a liberalisation of the law. I believe that interest is a majority one. It does not appear to be a majority interest at the moment simply because the problem is not as great since the introduction and the spread of these services in the family planning clinics. When those clinics are closed down by this Bill it will again become a majority issue. The Minister may have gained something in the short-term by honouring a commitment to pass a Bill through the Oireachtas but he will find himself, from now until the next general election and perhaps beyond it, at the receiving end of another interminable series of wrangles of Supreme Court judgments which may necessitate the enactment of further legislation. He will be entangled in this Bill for as long as he is Minister for Health.
There are a number of aspects of this Bill which I find quite extraordinary and I would like to deal with them. The main aspect to which I must draw attention is the obvious and inevitable effect the Bill will have on the existing family planning services. These services are provided partly by GPs and partly by the network of family planning clinics. They are not as successful as they ought to be. If this Bill is passed unamended they will have no option but to break the law or to go out of business. Many people are still under the impression that, because the Bill  gives the Minister the right to license or to recognise family planning services, it gives him the right to license the existing family planning clinics to continue the work they are doing.
The Minister has not done that but, Houdini-like, has tied his hands behind his back in the definition section of the Bill. Once this Bill has been passed the Minister cannot license the present family planning clinics to go on providing not only advice but contraceptives in the way they have been doing up to now even if he wanted to. The definition of a family planning service explicitly excludes the provision of contraceptives. It is absurd to talk of any comprehensive family planning service that does not include this function and that does not include it in a way which makes access to contraceptives something which can be made available to anybody who decently wants it for family planning.
Under the Bill there will be very severe restrictions but they will not hit everybody equally. They will hit most severely the people living in rural areas whose doctors and pharmacists may not be willing to take part in the provision of family planning means. The access will be restricted also in the case of the poor who cannot move very often from one area to another, from one unfriendly doctor or unfriendly pharmacist to a friendly doctor or pharmacist and also do not have the opportunity to leave the country so that they can import contraceptives for their personal use when they return.
This Bill, in particular, creates a major problem for medical card holders and also for the doctors who will be prescribing for them. This Bill will now make it impossible for doctors to prescribe to medical card holders any form of contraceptives other than the pill prescribes, under an age old form of hyprocisy, as a cycle regulator. Every doctor in the country knows that this is a completely hypocritical situation. He must also know that the pill is not by any means the most appropriate contraceptive for many women. It is the only form of contraception which will be supplied free of charge to medical card holders. The option facing them will be  to go on taking something even if there are strong medical contra-indications to it or to pay what little money they have at their disposal for whatever method of contraception may be appropriate to them. This Bill is pre-empting fundamentally personal decisions because the Minister does not want to face the particular odium which may attach to him if he allows all forms of contraception to be supplied through the health boards free to medical card holders. This is another area where the Minister is discriminating against the poor.
I believe that one of the main reasons why this Bill got through the Fianna Fáil Party; why it has evoked such eloquent silence from so many powerful interest groups outside the House and why it will be passed in its present form, is the closure of the clinics as they operate at present in relation to the provision of the means of contraception and especially of non-medical means. It is extraordinary also the hypocrisy we sometimes give vent to—this is not a particular preserve of people inside the House or outside it—in relation to young people. We regard people of 17 years and over as adults and able to engage in sexual intercourse without fear of the criminal law. We regard people of 18 years and over as responsible enough to vote into office the Minister for Health and 83 of his comrades; yet we do not regard people of those ages as being responsible enough to take responsible and mature decisions about their sexual activities unless it is for these alleged “bona fide family planning purpose”. I believe that the phrase “bona fide family planning purposes” will go down in history as one of the most deliberately woolly and unenlightened phrases ever introduced into a Bill. It will pose considerable problems not alone for doctors and pharmacists but for judges, because we must remember that in our system judges interpret the law as they find it. They are not allowed to interpret the law by reference to what the Minister may have said in the House or outside it. In relation to what he said outside the House on this matter, I should like to draw the attention of the House to a report in The  Irish Press of 16 December last when the Minister was speaking on RTE radio. He said:
If the doctor is satisfied that contraceptives are necessary for bona fide family planning purpose it is not his obligation to go into the niceties of whether it is, strictly speaking, within the terms of the law a legal marriage.
The Minister did not include that in the speech that he delivered to us recently. Even if he had, it would have absolutely no effect in relation to the interpretation and implementation of the law by the courts.
There is another area in which I find this Bill particularly unhelpful and paternalistic and that is in its implied attitude to the position and the role of Irish women. It has not come far, if indeed it has travelled any distance, beyond a phrase in the Constitution that was passed in 1937, Article 41.2.1 states:
In particular, the State recognises that by her life within the home, women gives to the State a support without which the common good cannot be achieved.
I doubt that the assumption on which that phrase was based was true even in 1937. Certainly it is not true today. It is true that we have the smallest percentage of women working outside the home of any of the EEC countries but that proportion is rising rapidly and soon it may be expected to reach the EEC average. The idea of the woman as exclusively the homemaker is one that strikes at the heart of many modern ideas about the liberation both of men and women from sex stereotyping and about the extension of economic and social equality to all citizens regardless of their sex.
That phrase in the Constitution, as indeed this Bill itself, is based on another false assumption in relation to women, that they all have access to the same quality of health care and social support and to the same economic resources to enable them to plan for, care for and support a family of indeterminate size. One of the major individual and societal changes in the past few decades has been the dawning recognition of the fact that  artificial contraception, for the first time since it became reliable to any degree, has given women the right to say when their bodies have had enough. It has given women the right effectively to plan their families and to play a fuller part in society and in work inside and outside the home.
This Bill is a throwback to 1937 in its attitude to women. In the effect it will have on family planning clinics, it is severely restrictive of rights that have been barely and with difficulty won through the Supreme Court. The Minister may argue that it will be open to the family planning clinics to employ pharmacists so that they will be able to dispense on the premises as they do at the moment. I do not know if that argument can be advanced with the remotest degree of seriousness given the actual financial situation under which most of the clinics operate.
Of course anybody can employ a pharmacist if he or she has the money. It is possible that the larger clinics— —perhaps the one in Dublin—will be able out of their financial reserves to employ a pharmacist for a year or two before they run out of money and are forced to shut up shop, but this is not true of some of the other clinics. I can guarantee to the Minister that the option of employing a pharmacist, even if it were morally right which it is not and even if it were necessary which it is not, would not be an option for the clinics in Galway and Limerick. The theoretical possibility open to these clinics of employing a pharmacist is so ludicrously out of court in practical terms that effectively family planning services as they exist outside Dublin will be closed down in the morning. Even if the Dublin clinics were to go ahead and employ a pharmacist or pharmacists, this would be merely staving off the evil day.
After the passage of this Bill the clinics effectively will be forced to break the law and the Minister or the gardaí will be forced to take action against them. That is why I say the Minister is not solving the problem; he is not burying it by the passage of this Bill. He will stir up such a hornet's nest as will make  him regret that he ever ventured into this area.
If the clinics are closed down as a result of breaking the law or otherwise, one of the major ingredients for the provision of a fully comprehensive family planning service, namely, the training of doctors, will also be more difficult to attain. Where are the doctors and nurses going to be trained, not just in natural family planning methods but in all family planning methods, if the clinics close down? At the moment there are a maximum of 115 or 120 general practitioners in Ireland, including those who were trained in England in family planning methods, who have any expertise in this area. That number will shrink after the passage of this Bill and the Minister will be quite unable to provide a family planning service in anything other than natural family planning methods. This is pre-empting not only the right of an individual to choose but it is also pre-empting the right of the doctor to decide in certain circumstances what kind of contraceptive is most appropriate for a couple.
Incidentally, where doctors are concerned there is one aspect of the Bill to which I do not think the Minister's attention has been drawn. As I understand it, section 4 (3) withdraws from the medical profession one of the rights it has at the moment. One is used to the fact that the medical profession generally is very jealous of its rights. It does not like to have them circumscribed or limited. One of its rights is the right not only to prescribe but to dispense. Section 4 (3) states:
A person shall not supply contraceptives otherwise than by way of sale under and in accordance with this section.
Section 4 (1) states:
A person shall not sell contraceptives unless (a) the sale is in accordance with regulations ... and
(b) (i) he is, or is a servant or agent acting as such of, a pharmaceutical chemist, or a dispensing chemist and druggist, ...
As I understand it, after the passage of  this Bill the doctor's right not just to prescribe but to dispense contraceptives of any kind will be severely circumscribed if not removed completely, and when this sinks in I doubt if the medical profession will be happy with that state of affairs.
The Minister referred with uncharacteristic innuendo to the fact that “there are commercial interests seeking their own ends”. He should have been straighter with us on this issue. He should have told us the commercial interests he had in mind. Of course there are commercial interests in this area, but there are very many and very different kinds of commercial interests. The two main commercial interests in this area are those of the family planning clinics, who are currently distributing contraceptives, and Family Planning Distributors Limited which is importing them, and the interests of the companies, many of them multi-nationals, who make and sell contraceptives of both medical and non-medical varieties.
The interesting distinction between these two sets of commercial interests is that the first group—the family planning clinics and Family Planning Distributors Limited—are non-profit, non-shareholding limited companies. They cannot be taken over by any outside group and they must by law plough back all their profits, such as they are, into the provision of further research, further facilities and even the means of contraception free for people who need them. The other commercial interests are those of the chemical wholesalers. They are not interested in family planning as a priority. They are commercial undertakings and are interested in profit as a priority.
Given the choice between these two, I do not see the logic or the sense of this Bill, because effectively what it does is hand over any profits that are made from the sale of orthodox contraceptives, and condoms in particular, into the pockets of already wealthy people in the United Kingdom, Canada and the United States of America. If the Minister were more caring in this regard, if he were more genuinely concerned about  the spread of a full and comprehensive family planning service, he would recognise that the most potent source of finance for the development of family planning services lies in profit from sales, and there is only one group of organisations which is committed, by the instrument under which it exists, to reinvesting profits from sales in the necessary business of helping people who are too poor to provide the means of contraception for themselves, of training doctors and nurses and of carrying out research into all forms of contraception.
To give a simple example. One particular form of barrier contraception which is presently available through the Irish Family Planning Clinic at £2.50 to the customer directly will be sold, and is being sold outside this country, by the chemical wholesalers to the pharmacists at a wholesale price of £3.60. If the same kind of arrangement obtains here, we will see that the supply of these items will not only dry up in relation to present sources supplying family planning clinics, but it will go up sharply in price as the pharmacists add their dispensing fees and their profit margins.
It has been estimated that the turnover from non-medical forms of contraception in this country is in the region of between £250,000 and £500,000 a year. The question I am addressing myself to is, where is the profit on this turnover to go? Is it to go into the pockets of the multi-nationals, the already wealthy people, in this country and outside, or is it to go into the development and extension of genuine comprehensive family planning services? That is the choice we face. On the evidence of the choice the Minister has made, it is going into the pockets of the multi-nationals.
Already pharmacists who get a month's supply of the anovulent pill for 25p from the wholesaler are selling it at over £1. Even if the hapless parent, or adult person in a family situation, does not have to go to a doctor every time for his prescription and authorisation, there will still be, immediately on the passage of this Bill, a very sharp differential between the price at which people were  able to buy the ordinary non-medical means of contraception and the price they will subsequently be required to pay.
At the moment family planning clinics will supply a packet of condoms for approximately £1.30. Add a prescribing fee to that and you come up with £1.90; add a further profit margin and you are in the £2 to £2.50 bracket. Overnight, regardless of whether a doctor will charge for a prescription or authorisation, we are effectively doubling the price of ordinary non-medical forms of contraception. The chief and most obvious effect of doubling the price will be the emergence of a substantial black market.
I do not know if the Minister is aware of this, if he is concerned about it or if he proposes to do anything about it, but it is undeniable that in any situation in which there are such enormous profit margins the emergence of a black market is inevitable. In turn, the emergence of a black market will frustrate many of the objects of any comprehensive family planning service and, perhaps, especially of the joke of a comprehensive family planning service which we have referred to in this Bill.
The fundamental message that must go out from this House is that this Bill is worse than no Bill. In a sense one might almost argue that the best thing that could happen is for the Bill to be passed as speedily as possible, with all its glaring anomalies, defects and inconsistencies, because I suspect that whatever is said from these benches, the full extent of the nastiness and of the irrelevance of this legislation will be lost on the majority of our people until they are faced with its inevitable legal, social and personal consequences.
Dr. Browne Dr. Browne
Dr. Browne: I suspect the Minister knows well that most of the criticisms he has listened to since this debate began have been well-founded. They have not been simply politically motivated. They stem from the reality of the extraordinary Bill before us purporting to establish a family planning service. It is interesting to notice that the British 1967 Family Planning Bill contained five or six sections and our Bill contains 17 sections.  There is a very important message to be learned there.
The Minister made the remarkable statement that this Bill was an Irish solution to an Irish problem. That was one of the unwisest statements of all made about the Bill. Some Deputies said that the Bill is more concerned with protecting the political interests of Fianna Fáil than it is with protecting women from unwanted pregnancies. Unfortunately, it was introduced only under duress following the Supreme Court ruling in the case brought by that unfortunate and courageous lady, Mrs. McGee, in order to establish her rights to have family planning if she so wished.
There is no doubt that the Bill is cynically misleading and divisive. It contains numerous contradictions, defects and anomalies. It is a very disappointing performance by the Minister who introduced it. The question for the Opposition is: what do they do in this situation? Will it be possible to amend the Bill? Will the Minister accept—forgive the words—bona fide amendments to the Bill to make it workable? I agree with Deputies who said it is not a bona fide Bill in so far as it is unworkable. Deputy Kelly said that it is not meant to be worked as a Bill. That may or may not be true. One is faced with the reality adverted to by Deputy Horgan that because of the many defects in it the Bill is wide open to actions of various kinds by self-appointed censors of our morality, of which there are so many in our society, in the years ahead. In those circumstances one hopes that the Minister will listen to the comments and criticisms of this side so that he might not be associated in the years ahead with absurd claims, absurd in so far as they may be made for petty mischief-making reasons, which, because of the defects in the Bill, could be sustained and justified in the courts.
The Bill is misleading because it was put forward by the Minister for Health, a man of considerable authority in society, to women assuring them that it is a family planning Bill. The bias in the Bill is on the kind of schemes which even his own side have admitted have a higher failure rate than the kind of contraceptive  methods which he condemns as unnatural forms of family planning. To that extent the Minister is cynically setting out to mislead women who want responsibly to plan their families, whatever that means. Presumably it means to limit their families not in a hit and miss way but definitely to decide whether or not they will have children, how many they will have and when they will have them or if they will have any at all. It is possible to plan to have no family and that can be justified. As a doctor I would be acting within the law if I provided contraceptive methods in order to help a couple who decided to have no family. That is one interpretation which I bona fide give.
The Minister is providing a family planning Bill the bias of which is towards the least reliable form of family planning. It is misleading and cynical because it is done simply to protect the Minister and his party from the criticism or retribution of what Deputy Horgan called the dog that did not bark—the kind of mind that produced the Knights of Columbanus document which we all received threatening political retribution on anyone who did not oppose this Bill altogether. The Bill in proposing what is misleadingly called the natural family planning method is intent on establishing as family planning methodology used in these clinics, the family planning methodology advocated by one church in our society, the church of what is in the Republic the majority church, the Catholic Church. Having got the best possible advice, I believe the Minister for Health has chosen the best possible advice not from the family planning point of view but from the political point of view, and that is the advice not to antagonise, not to alienate, the Catholic Church in the Republic, and for that reason we have this extraordinary Bill.
I have been a member of a Government here and I have seen Coalition Governments, as Deputy Kelly said, finely balanced, ideologically disparate individual politicians, naturally attempting to ride different horses occasionally: in coalition it is infinitely more difficult than in a one-party  Government, above all a one-party Government with the enormous majority this Government have, and this makes the Minister's decision to bring in this type of Bill at this time totally indefensible.
Having said that, I should like to make a point about the divisiveness of this Bill. It is an oversimplification simply to concentrate on the Minister for Health, Deputy Haughey, because I suspect that as a person he has considerable sympathy with all Opposition Deputies who have spoken. He is a sophisticated politician in a workingclass Dublin constituency, the senior Deputy in my constituency, and quite obviously if he had his way—this is not a defence for a politician—I suspect he would not have produced this document. This Bill is the product of a Government decision, and that is particularly important in its immediate and long-term implications.
Deputy Horgan referred to the nettles that were to have been grasped by the Taoiseach on an occasion some years ago. Of course, for many years family planning has been one of the nettles to be grasped. One of the features of political life here during the years has been that we seemed to think we operated in a delightfully insulated cocoon, isolated particularly from our fellow Irishmen in the six counties of Northern Ireland, and successive Taoisí have appeared to have given the impression that whatever we might give down here would not have been noticed in the North of Ireland.
There is no doubt that this Bill, with its references to natural and unnatural family planning is gratuitously offensive, first of all to the minority of our fellow Irishmen in the Republic. What we are saying is that we Catholics have a higher standard, a more concerned moral attitude, are better controlled, have a higher sense of responsibility—in short, like the famous man in the Bible, we are not like the rest of men, we are Pharisees. That is an attitude we articulate frequently.
However the Minister has told us that the plan he has here, the plan he favours,  is natural family planning, the Irish plan. Presumably, the other is the alien, the foreign, British, French, German, EEC, but not the Irish plan, not as good as the Irish one. Equally, the method used in the North of Ireland in the 1967 Act, is not the Irish method—it, too, is alien, used by aliens, outsiders, foreigners, not used by our fellow Irishmen.
Is that so? Is that Deputy Haughey's attitude, speaking on behalf of the Government? Is that the Government's attitude? Are those people foreigners in the six north eastern counties? Even more important, if they were to decide to join us in a united Ireland would they have to remake their law in this respect in order to meet the Irish way of doing things in family planning?
This brings me to a very important question on which the Minister and his colleagues would be repaid by some thought. It is the idea of their republicanism, the republicanism of so many republicans since the State was formed, the essential sectarianism of it, the Catholic sectarianism of Irish republicanism. This Bill is riddled with it. Deputy Haughey, on behalf of his Government colleagues, told us that this is the Irish solution to the Irish problem: he left out the word “republican”. This is the Catholic Irish republican solution to the Irish problem in the Twenty-six Counties, and if it had been possible for the men of violence in the various republican parties here since the State was formed to have compelled the Northern Irish into a united Ireland, presumably they would have been subjected to the Catholic Irish republican solution to this as to so many other problems.
The essence of true republicanism is its secularism, its rejection of any form of religious interference. In fact, going back to the French Revolution, it is its aggressive secularism, its aetheism, its radicalism, its égalitarianism—all the features of real republicanism, true republicanism rejected successively in our laws, our Constitution right up to and including this Family Planning Bill and cleverly confused over the years so as to give the impression that a Minister like the Minister for Health and his colleague,  Deputy Lynch, the Taoiseach, are serious in their republican protestations. This is his idea of the Irish solution. Is this not now, as in the 1937 Constitution, giving substance, institutionalising the two nations idea—the Irish nation south of the Border and that foreign country north of the Border with foreign ideals and foreign solutions to their problems?
Our attitude to Catholic domination in our society and the Catholic Church's position in our society has been the perennial problem since the State was formed. It is only fair to say that this has improved in that we have at least had from the Catholic Hierarchy the assertion that the law is a matter for this House. They made their point of view clear, which they have every right to do, as any lobby has. They say that the legislators must legislate. They did not, as they did in the past, tell us that we might not legislate in a particular way. The Minister for Health, the Taoiseach and this Government are at least free to legislate, if they wish to, as true republicans in the tradition of the French Revolution. But instead of that we have this petty, chauvinist, sectarian, Catholic, Irish Republican assertion by the Minister.
The attitude to this question is particularly regrettable because it is one of primary importance in our society. The tenor of the Bill, the sectarian nature of the Bill, is unfortunate. It makes one despair. When we see from this Government with their great majority, with their authority and their power to order our society in any way they want—and those of us in Opposition cannot stop them whether we like it or not—this sectarian approach on a relatively simple issue of this nature, what of the other nettles that are to be grasped and were to be grasped by the Taoiseach and his colleague, the Minister for Health? What about divorce, the Ne Temere Decree and its implications for the minority in our society? What about issues like homosexuality, co-education and multidenominational or non-denominational schools? Surely it is this kind of legislation over the years, where no serious sacrifice was proposed, postulated or advocated  by the Fianna Fáil Party, particularly in latter years, where no serious advance was made, no offer of compromise or of meeting the other side half way, which has led to the sense of frustration for young people in the North who call themselves republicans. That frustration becomes uncontrollable leading to the dreadful events of the last ten years. They see no advances made whatsoever by successive southern Governments and the result is that they feel that they are to be perpetual prisoners—a tiny minority—in the Catholic ghettoes of the Six Counties.
The Minister has on many occasions made a big issue of his republicanism, his aspirations to unity and a united Ireland. This is a shameful Bill for him to have produced with his declared aspirations. In producing it, taken with the other items I have mentioned, he has betrayed the best interests not of the majority in the North, curiously enough, but of the minority in the North. It will simply perpetuate their suffering. It is not enough for a Minister to say that he accepts the majority decision of the party. He must accept that he is responsible, that he is behind this Bill. He is defending this Bill, advocating it to us, and therefore he cannot escape under the protection of the collective responsibility of the Cabinet. He had the alternative of declining to introduce the Bill and taking the consequent action of retiring to the back-benches if he felt that the issue was of sufficient importance, not only in relation to its effects on our people down here, but in relation to its much broader effects in relation to the North.
It is very tragic that family planning has succeeded in being such an emotive subject for so long because the result has brought enormous suffering on just half of our people, the women in our society. I have said that Ireland is the nearest thing to a Moslem society I have seen outside the Middle East in the total domination of our institutions by men. One example is this House. It will be interesting to see how many male Members will engage in this debate. It would be interesting to see, if the condition  was reversed and this was a Dáil full of women instead of men, if they would be as detached, disinterested and, as in so many cases, as hostile to the proposals to bring in an effective family planning system. We also have the male dominated Church, celibrate clerics in most cases, with presumably relatively little real understanding of the issues we are talking about. We also have the courts, the Garda and the Army. Effectively, women in our society are a helpless minority and that shows in our legislation.
I can honestly say that the most common complaint of women coming to see me as a psychiatrist is the dominating fear of the next child, the fear of pregnancy. It is a very powerful and prevalent one because of the male chauvinist nature of our society. There is little they can say about this. They tend to say little about it because of the kind of educational upbringing they have had. Up to now they have been afraid to discuss the question of sexuality with the result that it is virtually ignored. However, for the mother expecting a child, frequently living in high-rise or overcrowded conditions, insecure financially due to unemployment problems, with little or no home help, isolated or suffering great physical and emotional stress, the trauma of continual childbearing is one we do not begin to understand. I often wish that men had to have every second child because we would then begin to understand what was involved in the appalling responsibility of bringing a human being into the world, looking after it physically and emotionally and bringing up that child to maturity.
There is still in Irish manhood this primitive idea, a sign, essentially, of an insecure individual, that the begetting of children is a sign of virility. One of the difficulties I face as a psychiatrist when I recommend some form of contraception is the fear of the ladies that if they use contraception their husbands would not want it or would not permit it. The Government have overlooked a fact which was curiously shown up in the debate by the few who have spoken so far. They have overlooked the type of contribution made by the younger  Members. Their contributions represented a reflection of the reality that 50 per cent of the population is aged between 18 and 25 years. We had excellent contributions by Deputies Boland, Horgan, O'Connell and Kelly but nothing of what they said could have been uttered by them in their parties ten years ago. When faced with such a Bill I feel a sense of despair but when I listen to contributions as have been made on this legislation it becomes clear to me that improvements have taken place, that we are making advances.
The Minister's phrase was that we were advancing Irish style, backwards, and, alas, as always, on our knees but there is some advance being made. The young people for whom we are legislating are going to make their own decisions. They are not going to be bound by our laws. One sees that in the attitudes already expressed by younger Members. There are many people who are deciding to get married and not have a family. It is becoming a common feature of married life in West Germany, France and other continental countries. Women are deciding that they must have a say in the decision on the way they will make use of their bodies. That is a fundamental right of any human being and women are deciding that they will not allow their bodies to be abused by excessive childbearing, or childbearing at all. The more I watch the world the more frightening it would seem to have a child born into the nuclear age. Should such a child be brought into the world?
Dáil Éireann 313 Health (Family Planning) Bill, 1978: Second Stage (Resumed).