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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 Micheál Martin: Information on Micheál Martin Zoom on Micheál Martin] It is not the case that there is no guidance at all available at present and that there is a deep uncertainty in all cases. Doctors follow the Medical Council guidelines that were most recently updated in 2009. Section 21.1 states:

Abortion is illegal in Ireland except where there is real and substantial risk to the life (as distinct from the health ) of the mother. Under current legal precedent, the exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide. You should undertake a full assessment of any such risk in light of clinical research on this issue.

Section 21.4 states:

In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby.

These guidelines could provide the basis for bringing certainty and clarity to Ireland’s response to the European Court of Human Rights, ECHR, judgment. The ECHR judgment and the expert group outlined their reservations about only having guidelines as it opened up the possibility of “criminal conviction and imprisonment”. While there were advantages to the guidance documents, they concluded that the legal uncertainty arising from the 1861 Act could be subject to legal challenge. Under 7.4.3, the report outlines approaching this issue by introducing the ability of the Minister of Health to issue regulations by legislation: “The Oireachtas would provide the principles and policies and the enacting legislation would give the Minister the powers to issue such regulations.” The Minister spoke of four options but placed heavy emphasis on paragraph 7.4.3, which states this approach would satisfy the requirements of the implementation process of the judgment in the A, B and C v. Ireland case. It adds that “the advantages of this option are... it provides for appropriate checks and balances between the powers of the legislature and the executive, and would be amenable to changes that might arise out of clinical practice and scientific advances.” The expert group report goes through advantages and disadvantages of various scenarios involving legislation on its own or legislation with regulation. It also outlines the scenarios of both repealing or updating the 1861 Act by replacing it fully or retaining the Act but amending it by legislation providing for the judgment in the X case.

  The preference is to change the 1861 Act as there is a lacuna in protecting the life of the unborn and, according to the report, “under Irish law, currently, the life of a baby who is in the process of being delivered is not clearly protected under the offence of murder or the offence of abortion”. There is no doubt the expert group did a thorough synopsis of what options are there to enable the Government and the Oireachtas to respond to the A, B and C v . Ireland judgment. I acknowledge this and thank the group for its work.

  In his introduction to the report, Mr. Justice Seán Ryan wrote:

Abortion is a difficult painful issue in this country and elsewhere.[...] Intense ethical, religious, social political and intimate personal issues coincide.

The public wants to ensure women who are pregnant receive the best hospital services possible and do not want women’s lives to be put at risk in the absence of a legal framework. The people have already been consulted twice on excluding suicide and have rejected the proposals. I do not believe the Irish public envisages abortion clinics being available in Ireland and the contradictions in the RED C poll show this. Wrestling with our consciences should not delay us doing what is required. There needs to be certainty in whatever framework is decided to allow the medical profession to use professional judgment in emergency situations to save women’s lives. It is important for the House to remember Mr. Justice Ryan’s comments in the expert group report when he stated:

The group consisted of people with expertise in the medical, legal and administrative fields and that obviously it is not possible for us to adjudicate on legal or medical controversies and it is absolutely not our business to try to decide political controversies. The members of the group who are doctors are not settling legal issues; the lawyers are not deciding medical controversies and the administrators are not adjudicating on the medical or legal questions.

As legislators, we have a responsibility to consider in full the options that were laid out in the expert group report. We have a responsibility to address the issue in an honest way. We must take on board all of the expert advice. When the Government outlines its response we should listen to the rationale and engage as constructively as possible with our responses.

  On page 25, paragraph 4.7 of the report, the implications of Ireland’s obligations are outlined:

Arising from the judgement, Ireland is under a legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether or not they are entitled to a lawful abortion in accordance with Article 40.3.3 of the Constitution as interpreted by the Supreme Court in the X case, and by necessary implication access to abortion services in the State. It would be insufficient for the State to interpret the Court’s judgement as requiring only a procedure to establish entitlement to termination without also giving access to such necessary treatment.

The Taoiseach has said he would not be rushed into responding to the report. The Tánaiste and the Minister for Health, Deputy Reilly, are on record as saying there will be a legislative response to meet the recommendations of the expert group report and this will be made known before Christmas and debated at the Joint Committee on Health and Children in the second week of January. I presume the Institute of Obstetricians & Gynaecologists will publish its submission on its preferred option so there can be no doubt about the safety of women’s lives in Ireland’s maternity hospitals. As part of the response from Government, it should outline whether the Medical Council has been consulted and whether it is satisfied with the Government’s proposals. The medical profession must be fully satisfied with what is being proposed as it will be faced with taking decisions in individual cases. We need to be sensible about this issue and not try to score political points.

  The Fianna Fáil Party believes clarity and certainty needs to be brought to this sensitive issue. We will be consulting members and considering our approach to the report over the coming weeks. We will be constructive and will fully partake in the debate both in the Chamber and at committee level.

Deputy Gerry Adams: Information on Gerry Adams Zoom on Gerry Adams The issue of abortion and the failure of successive Governments to legislate for the Supreme Court decision in the X case has come centre stage in recent weeks due to the tragic death of Savita Halappanavar in Galway University Hospital on 28 October. Her tragic death did not come to public attention until nearly three weeks later. By a remarkable coincidence, the report we are discussing landed on the Minister's desk the evening before the story broke publicly. Since the tragic death of Savita there has been an outpouring of grief for and solidarity with her family from across the country and across the globe. Once again, I extend my sincere condolences to Savita's husband, Praveen, and her family on their loss. It is a shame it took this tragic death to refocus minds on the need to deal with the outworking of the X case judgment 20 years after it was made. Two weeks ago, Sinn Féin tabled a Private Members' motion seeking the publication of this expert report and a commitment from the Government to introduce legislation in line with Supreme Court judgment in the X case. The Government should have published the report but I hope the report will spur the Minister to do what successive Governments have failed to do for the past 20 years, which is to introduce legislation in the area.

  Sinn Féin supports the introduction of legislation in line with the X case, as well as in circumstances of rape and incest. I welcome indications from the Government that it will set out how it plans to proceed on the issue before Christmas. The expert group was established in early 2010 in response to the decision of the European Court of Human Rights in the A, B and C v. Ireland case in December 2009. The terms of reference of the group were to provide a range of options as to how the judgment was to be implemented in Irish law. In the report, the expert group offers a range of options.   In our view it would have been preferable if it had been allowed to make recommendations, so we would not have to read between the lines to see what options the group may favour. It would be useful if the authors of the report were available to address the Joint Committee on Health and Children in the new year and to answer questions.

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