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

Thursday, 6 December 2012

Dáil Éireann Debate
Vol. 785 No. 3

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(Speaker Continuing)

[Deputy Seán Kyne: Information on Seán Kyne Zoom on Seán Kyne] I do not know the precise details of what happened in University College Hospital Galway. Too many people have made assumptions on what went wrong. While not knowing where fault lies, it is important to note, for balance, that the hospital in which I was born, University College Hospital Galway, formerly known as the regional, did not experience a single maternal mortality in years prior to the tragic death of Ms Halappanavar. In that time, my seven nephews and nieces were safely delivered, as were countless others.

What we do know for certain is that Ms Halappanavar died before her time and because of this, the need to investigate is paramount. It is only right that three investigations are under way, one each by Galway Roscommon University Hospital Group, the HSE and HIQA. I am confident these inquiries will determine precisely what happened at UCHG which led to the tragedy. Furthermore, we must also note that the Minister, Deputy Reilly, has not ruled out a public inquiry. However, it is also important that the staff of UCHG is not deprived natural justice. Much commentary in the media, and elsewhere, has been unfair speculation.

As with most other Fine Gael Deputies, I have received postcards on this issue containing a message, which reads: 'Without the right to life, all other rights are meaningless". I could not agree more with this statement, but I also believe that this statement applies to pregnant women as it does to unborn children. The task before us is to remedy the uncertainty which exists. The women of Ireland and the medical profession need to know where they stand in relation to the law. The opinions and views of the masters of the maternity hospitals must also be carefully considered as it is these men and women who are the front line of this issue. Above all, in addressing the complexities of this issue we must proceed carefully. This issue requires careful consideration because of the far-reaching consequences of any decisions taken which will undoubtedly be of a legal, medical, ethical and constitutional nature.

Deputy Seán Conlan: Information on Sean Conlan Zoom on Sean Conlan The constitutional position on the legality of abortion has been clear for 20 years. The Supreme Court, in the X case, established that Article 40.3.3° of the Constitution permits lawful abortion in Ireland in circumstances where the life of a pregnant woman has been established as a matter of probability to be at real and substantial risk and that risk can only be avoided by a termination of the pregnancy.

  The judgment of the European Court of Human Rights in A, B and C v. Ireland confirmed that Article 40.3.3° of the Constitution is not inconsistent with the European Convention for the Protection of Human Rights. In this case, the court found, however, that there had been a violation of C's right to a private and family right contrary to Article 8 of the Convention. C had been treated for cancer for three years. When she became unintentionally pregnant she was in remission and, being unaware of this fact, went for a series of follow-up tests related to her illness. She was unable to obtain clear medical advice as to the effect of the pregnancy on her health-life or as to the effect of the medical treatment on her foetus, and feared the possibility that the pregnancy might lead to a recurrence of the cancer. She decided to have an abortion and travelled to the UK for that procedure. The court held that there was no accessible and effective procedure to enable her to establish whether she qualified for a lawful abortion, defined as a lawful termination of pregnancy, in accordance with Irish law.

  Ireland has signed and ratified the European Convention on Human Rights, Article 46 of which states that signatories agree to abide by any judgment of the court in any case to which they are parties. Therefore, Ireland is under a legal obligation to implement the judgment of the European Court of Human Rights in A, B and C v. Ireland. This is the factual position and it is up to all of us to deal with the implications of this. I believe we should not rush to a decision on this matter, but I accept the reality that it must be dealt with and the public wants it dealt with. Irish society is much divided on the issue of the circumstances in which abortion should be available, but I believe everybody deserves clarity on the issue.

  There have been a number of referendums to try to deal with the implications of the X case. In 1992, the proposed 12th amendment, which was designed to exclude the risk of suicide as a ground for lawful abortion, was defeated. In 2002, the Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill 2001 was also defeated. It aimed to prohibit abortion except in circumstances where there was a risk to the life as distinct from the health of the mother. Under the proposed legislation, a threatened suicide would have been excluded as a risk to life and would thereby have limited the effect of the X judgment.

  I believe that a substantial majority of the public does not want to see abortion on demand made available in Ireland. For the record, I do not want to see abortion on demand made available in Ireland. I believe that most people in this country feel that the physical act of aborting a foetus is abhorrent. Many feel that the decision in the X case, in particular the inclusion of risk of suicide as a legitimate ground for seeking an abortion, will be open to widespread abuse and will lead to the situation that exists in England. Many of those who argue this point would have a lesser objection if they could be assured that strict safeguards were put in place to ensure the risk of suicide was real and substantial. Many of these same people would have less of an issue with the availability of abortion for those who are victims of rape or incest and believe, notwithstanding their general objection to the availability of abortion, that a termination should be available in those circumstances. Others believe that the long-term health of the mother is also of paramount importance. It is not a black and white issue and legislating for the X case will not deal with these situations.

  I have been contacted by many constituents who believe that the long-term solution is another referendum to seek once again a removal of the inclusion of risk of suicide as a ground for obtaining a lawful abortion while, in the interim, introducing non-statutory guidelines. Many others have contacted my office by e-mail. In fact, it is probably the biggest issue I have faced since I was elected as a Deputy. There have been a substantial number of e-mails and letters, both for and against legislating on this issue. Many have contacted me demanding legislation for the X case immediately. I am conscious that the Cabinet has decided to agree on a course of action before the end of December. My preference would be the introduction in the interim of clear guidelines for the medical profession. This has the advantage of being speedy and it would allow time to debate fully the implications of legislating for the X case and explain fully to the people how safeguards could be put in place preventing the introduction of abortion on demand and preventing the real potential for abuse which could result in legislating for the X case. Whatever the final decision reached, I believe the medical profession and pregnant women deserve clear guidelines on this issue from politicians.

Deputy Billy Kelleher: Information on Billy Kelleher Zoom on Billy Kelleher We speak again on this sensitive and emotive issue. It is emotive in view of the tragic circumstances surrounding the recent death of Ms Halappanavar in Galway. That certainly heightened and charged the debate on this issue. The publication of the report under discussion around the time of Ms Halappanavar's death has brought this issue very much to the fore in the public consciousness in terms of the debate on whether to legislate. This debate is taking place in the context of the report's recommendations but also, and more importantly, in the context of what the Constitution states in Article 40.3.3°, the interpretation in the X case and the European Court of Human Rights Grand Chamber findings that there was a breach of C's constitutional rights to clarity on the issue of whether a lawful termination could be sought in this country. The debate has been respectful by and large. It is a divisive one, obviously, and we have stated this on numerous occasions. We have come to the stage where a decision must be made by the Government on foot of the publication of the expert group's recommendations, and that is something that will bring further debate on this issue.

It is healthy that we in this Chamber have this debate because the issue divides families, parties and society. It is truly very divisive. The key point on all sides is that people are allowed to protest and to voice their opinion but, equally, as parliamentarians, we should be allowed to go unhindered about our duties as elected representatives. In the interests of having a debate that allows all sides express their view without fear, that courtesy should be afforded to all public representatives irrespective of whatever opinion they hold on the issues.

This debate is about the report and its recommendations and findings. The background to the report is well known. Three women, A, B and C, brought proceedings against Ireland before the European Court of Human Rights claiming violations of Articles 2, 3, 8, 13 and 14 of the European Convention on Human Rights and Fundamental Freedoms. A and B complained about the prohibition of abortion for health and well-being reasons in Ireland. C complained about the alleged failure of Ireland to implement the constitutional right to an abortion in Ireland in the case of a risk to the life of the woman. The Grand Chamber of the European Court of Human Rights delivered its judgment on 16 December 2010. It dismissed the claims brought by A and B and upheld the claim brought by C. It found that Ireland had failed to respect C's private life contrary to Article 8 of the convention, as there was no accessible and effective procedure to enable her to establish whether she qualified for a lawful termination of pregnancy in accordance with Article 40.3.3° of the Constitution. The European Court of Human Rights stated that it was not its function to identify the most appropriate means for the State to comply with its obligations. It accepted that the implementation of Article 40.3.3° would be "a sensitive and complex task".


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