The question of providing contraception to children or young teens raises queries about the legal rights of a minor within a family, writes Simon Mills.
Mary Harney's call for contraceptive pills to be made available to children as young as 11 will raise hackles in some quarters. It may also prove the first shot in a legal battle that has already been fought in other jurisdictions.
The Minister's suggestion is that "contraception should only be made available to under-16s in consultation with their parents". This is the ideal scenario, assuming of course that minors should be prescribed contraceptives at all.
However, Ms Harney is being utopian. The world of sexual relations can be a furtive one and, while one might hope parents will be involved in all cases where a minor (for purposes of medical treatment, one ceases to be a minor at 16 years) seeks contraceptive advice, the Government must also give consideration to what should happen when parents are not involved in minors' requests for contraception.
Two scenarios spring to mind. One is where the wishes of parents and child conflict. Picture a scene where a 15-year-old in a sexual relationship has discussed it with her parents, only for the parents to refuse permission for her to "go on the pill". The girl confides in her doctor that she is having sex anyway and wants to be protected against pregnancy. A second and related scenario is where the minor simply does not wish to involve her parents in the decision she is making, in spite of Ms Harney's earnest wish that she should do so.
In either case, should parental refusal or lack of knowledge be sufficient cause for exposing the minor to the risk of pregnancy?
While the Minister's desire to ensure that minors are protected from pregnancy and that parents are involved in the process is laudable (and indeed possibly constitutionally necessary), it ignores pertinent realities of sociology, family dynamics and human sexuality.
If the Government wishes to deal with teen crisis pregnancy, then it must necessarily confront the issue of the minor's ability to consent without parental approval.
This nettle has already been grasped in Britain and elsewhere. In England and Wales, the law is defined by the Gillick case: Mrs Gillick sought a court declaration that the contraceptive pill would not be prescribed to her daughters without her consent.
The House of Lords held that - in limited circumstances - a minor could receive contraceptive treatment without parental consent and, in doing so, enshrined the concept of so-called "Gillick competence": the ability of a minor to consent on his or her own behalf.
A minor is "Gillick competent" to consent to contraceptive treatment when the doctor is satisfied that certain criteria are met, including the following: the minor must have sufficient maturity and understanding of the proposed treatment; the doctor must endeavour to persuade the child to involve her parents; the doctor must feel that the minor will engage in sexual intercourse even if the pill is not prescribed, and the doctor should give advice on safe sex.
"Gillick competence" is predicated on the changing relationship of parent and child as the latter matures. In the words of Lord Denning, as the child matures towards 16, the parents' right of veto over medical treatment "is a dwindling right, which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts as a right of control and ends as little more than advice."
Could "Gillick competence" operate in Ireland? Assuming the less-than-perfect world in which a minor seeks the contraceptive pill or post-coital contraception contrary to parental wishes, or without wishing to involve her parents, what should the law be?
The main obstacle to allowing minors to make their own treatment decisions in Ireland is the Constitution, Article 41 of which grants special deference to the family.
In turn, this deference is typically defined by the courts as according to parents extensive rights over their children, up to and including the right to refuse medical interventions that would be in the child's best interests.
Taken at face value, such an interpretation would appear to place an onus on any lawmaker to copper-fasten the role of the parent in the contraceptive treatment decision.
However, there is a chink: in a number of decisions (including a decision in which the Supreme Court upheld the right of parents to refuse to submit their child to the "heel prick test", notwithstanding that the test was in the child's best interests), the courts have said that the parental right of control might be trammelled where parental wishes posed a serious threat to the child's life, health or welfare.
So, courts have directed that potentially life-saving blood transfusions can be given to children in spite of parental refusal.
Does the provision of contraceptive advice and treatment come within this caveat?
Teen pregnancy is manifestly detrimental to the short- and long-term welfare of the mother, while pregnancy de facto poses more risks to health than the non-pregnant state. Would its prevention, therefore, allow the law (and doctors) to circumvent any parental veto?
It comes down to a question of whether - in recognising the rights of the family - the law is willing to vindicate the evolving personal rights of the maturing minor within that family and to accept that, in the interests of the minor's welfare, prevention of teen pregnancy may be sufficient reason to allow mature minors the freedom to make up their own mind regarding contraception.
Any rational governmental approach to teen pregnancy prevention must address this issue.
Dr Simon Mills is a barrister, doctor and author of Clinical Practice and the Law (Tottel Publishing)