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Report of the Expert Group on the Judgment in the A, B and C v. Ireland Case: Statements (Continued)

Tuesday, 4 December 2012

Dáil Éireann Debate
Vol. 785 No. 1

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(Speaker Continuing)

[Deputy James Reilly: Information on James Reilly Zoom on James Reilly] The report then describes the judgment of the European Court of Human Rights in A, B and C v. Ireland and its legal implications. The report maintains: the State is under obligation to do the following:

A. Provide effective and accessible procedures to establish a woman's right to an abortion as well as access to such treatment.

B. Establish criteria or procedures in legislation or otherwise for measuring or determining the risk.

C. Provide precision as to the criteria by which a doctor is to assess that risk.

D. Set up an efficient independent review system where a patient disputes her doctor's refusal to certify that she is entitled to a lawful abortion or where there is a disagreement between doctors as to whether this treatment is necessary.

E. Address sections 58 and 59 of the Offences Against the Person Act 1861.

In essence, the expert group indicates that the State is under legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether they are entitled to a lawful abortion in Ireland. Furthermore, it asserts that: "It would obviously be insufficient for the State to interpret the court's judgment as requiring only a procedure to establish entitlement to termination without also giving access to such necessary treatment." The expert group then openly and explicitly presents the principles adopted in its deliberations and reflected in the proposals it puts forward for the implementation of the judgment. These are very clear principles and they are fully in line with our constitutional, legal, ethical and medical requirements. These are:

Principle 1. The entitlement to have the right to lawful termination of pregnancy ascertained should be established.

Principle 2. The State's constitutional obligations under Article 40.3.3° should be reflected in the options proposed to implement this judgment.

Principle 3. Termination of pregnancy should be considered a medical treatment regardless of whether the risk to the life of the woman arises on physical or mental health grounds.

Principle 4. It will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is clinically appropriate medical treatment.

  I believe that these principles taken together provide a clear and humane framework on which to base the provision of lawful terminations of pregnancy in Ireland. Moreover, in adopting as one of its principles the constitutional obligation under Article 40.3.3° and reflecting its provisions throughout its report, the expert group has shown us that there are ways in which the right to life of the pregnant woman can be protected, while requirements are also put in place to ensure that due regard is given to the right to life of the unborn, and that the dignity of the foetus is respected in cases where this can be achieved without compromising the woman's right to life.

  Therefore, although the report clearly supports the Supreme Court judgment in the X case as the correct criteria to assess whether a woman is entitled to a lawful termination of pregnancy, that is to say when there is a real and substantial risk to the life of the mother, and this risk can only be averted by the termination of her pregnancy, it also explicitly states that, as part of the test, the treating doctors will have to consider whether it is practicable to preserve the life of the unborn in the process of terminating the pregnancy without compromising the right to life of the woman, and evidence of this consideration must be documented. The report also rejects the arguments often put forward that the judgment in Attorney General v. X establishes a right to an abortion at any gestational age. The expert group argues that the judgment indicates that where a woman has a pregnancy that places her life at risk and her foetus is or may be viable, she may have a right to have the pregnancy brought to an end but not a right to insist that the life of her foetus be deliberately ended and that this approach also reflects an obstetrician's medical obligation to care for both of his or her patients, namely, the pregnant woman and the foetus. Therefore, for example, a pregnancy that has reached or is approaching viability could be terminated by early induction with appropriate neonatal care to follow.

  The four principles outlined in chapter 5 underpin the detailed procedural options presented in chapter 6. This chapter illuminates possible avenues for the assessment of an entitlement to lawful termination of pregnancy in Ireland and for the delivery of this medical treatment. It discusses the possible qualifications of the doctors involved in the process, the number of doctors who would be responsible for reaching a decision, what their different roles might be, and the locations where terminations might take place. It also extrapolates potential exceptions to the process, such as in the case of an emergency or when dealing with conscientious objection. In addition, this chapter provides a lengthy discussion on a formal framework to review the initial clinical decision, which is one of the main requirements emanating from the judgment.

  The expert group correctly emphasises that any system that would be put in place should be duly monitored. It indicates that from a clinical perspective there is a need to keep records on the number of women who might seek and be given terminations and the medical reasons that gave rise to such treatment. In addition, statistics are also required to inform policy, as well as to ensure that the legal and constitutional principles and requirements of the system are being upheld.

  The final chapter of the report sets out four options for the implementation of the European Court of Human Rights judgment in the A, B and C v. Ireland case and these are: guidelines alone, regulations alone, primary legislation alone, and primary legislation coupled with regulations. It is those options that are now being considered and discussed by the Government and the Members of the Houses of the Oireachtas.

  I take this opportunity to restate the Government's firm commitment to implement the judgment of the European Court of Human Rights in the A, B and C v. Ireland case and bring the required legal clarity to the issue of lawful abortion in Ireland. That does not mean abortion on demand. That is doubtless one of the most divisive issues in Irish society and yet we must try to discuss it in an even and calm manner. We must protect the life of the pregnant mother and yet vindicate the right of the unborn child. We must clarify what is available by way of treatment to the women of Ireland and clarify what is legal for the professionals who must provide that care. As a Government we are elected to act, and we will.

Deputy Micheál Martin: Information on Micheál Martin Zoom on Micheál Martin I welcome the holding of this debate and the opportunity to address the report of the expert group. It is appropriate that time is allowed for legislators, medical bodies and the wider public to consider the issues raised in the report in advance of the consideration of specific measures. In the modern world there are few more passionately debated and divisive topics as abortion.

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