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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 Paul J. Connaughton: Information on Paul Connaughton Zoom on Paul Connaughton]   The report of the expert group is an important document as it brings forth the views of experts in the fields of obstetrics, psychiatry, general practice, law and public policy and was chaired by a High Court judge. It considers the A, B and C v. Ireland judgment in the European Court of Human Rights and puts forward various courses of action. The case was brought to the court three years ago by three women who alleged a breach of their rights under the European Convention on Human Rights in respect of abortion in Ireland. All three had unintentionally become pregnant and travelled to the UK for abortions. The judgment in that case found that the Constitution is not inconsistent with the European Convention on Human Rights and accepted the Supreme Court interpretation of the X case, which found that it is lawful to terminate a pregnancy in Ireland if it is established as a matter of probability that there is a real and substantial risk to the life as distinct from the health of the mother which can only be avoided by a termination of the pregnancy. The European Court of Human Rights found there had been no violation of rights under the convention in terms of Ms A and Ms B but in respect of the third applicant found that Ireland had failed to respect the applicant's private life as it has no procedure for her to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law.

  This is the nub of the difficulty which now faces the State. The court ruled that no procedures had been laid down in Irish law which can measure or determine risk and this has led to uncertainty. It stated that further legal clarity was required. This further legal clarity must be provided and can and will be provided by this Government, but I do not accept that the judgment of the European Court of Human Rights means that Ireland must legislate to introduce a much more liberal abortion regime. Ireland has signed and ratified the European Convention on Human Rights and thus is under a legal obligation to implement the judgment of the European Court of Human Rights, an obligation that successive Governments have sidestepped because it was not politically expedient to do so.

  However, the issue can no longer be sidestepped, particularly in the wake of the death of Savita Halappanavar in Galway University Hospital. Savita presented in hospital 17 weeks into her pregnancy and was miscarrying her baby. She died later of blood poisoning after enduring days of pain and her treatment is the subject of multiple inquiries. It is important to let those inquiries report before making any further judgment. Savita's death has promoted a debate which has often centred on the limits facing doctors operating in a legal fog unsure of the ramifications of their actions. What the debate should have focused on was the limits facing women presenting to hospitals in such difficulties and their rights in terms of treatment.

  The report of the expert group which is before us was in train before Savita's tragic death but her death has brought home to people on all sides of the debate the human tragedies that lie behind all the legal terminology. Successive governments may have shied away from this emotive, controversial and difficult subject but when the highest court in the land has recommended that clarity is needed and the European Court of Human Rights has echoed that call, we as legislators must recognise that and deal with the problem presented to us.

Deputy Mary Lou McDonald: Information on Mary Lou McDonald Zoom on Mary Lou McDonald I am conscious that after a 20 year delay, we have had a flurry of debates on this matter in the Dáil over the past number of weeks. The extent of the debate serves to highlight the extent of the delay which ran to two decades and the disrepute in which it places this Oireachtas. Many speakers have spoken about the sensitivity on the issue of abortion and I would not disagree with them. We all know from history, certainly in the 1980s, just how polarising was the issue and the debate. It is true that politics and politicians have taken a safety-first attitude to the issue and run for cover because it was considered too contentious. The fact that we are discussing legislation for the X case two decades later does politics, politicians and this institution no credit.

I am glad the report of the expert group has been published. My colleagues and I have studied it and I have a few things to say about it which I hope will be useful and in some way insightful. The main thing I want to say is that we cannot countenance any further delay. While it is very useful and indeed appropriate that the report is considered and debated and that every Member who so wishes has a right to put his or her views or misgivings on the subject on the record, this cycle of debates should not be used as a pretext for further delay. I say this to the Minister of State with the utmost respect and urge the Government now that it has the report and will hear the views of the Members of this Dáil to lose no time in making clear which option it will select and move that forward with all due haste.

It is very important that we understand the kinds of restrictions the Constitution contains and the X case reiterates. The X case reiterates the need for legislation in very narrow terms. It is important that people, regardless of their views on the broader issues of women's reproductive rights and abortion, understand what is constitutionally permissible and stated within the X case. We are concerned with very restrictive circumstances in which a medical termination is permissible. There are two tests that must be met. The first is that the woman's life must be in jeopardy. It is not a matter of health, rather it is a matter of life and death. The second test is that in the event that the woman is heading towards death, only a termination can save that life. These are very important things to understand. There are many who would argue that this is far too restrictive but that is a debate for another day. As we debate in the here and now, that is the current position.

When we come to the element of suicide, it is in those circumstances that the restrictive nature of the judgment must be most particularly borne in mind. In order for a medical termination to be allowable on the grounds of suicide, the woman's life must be in jeopardy. There must be a real peril to the woman, which is the first test. The second test for the suicidal person is that it would have to be established that only a termination could spare that life. Those are remarkably high thresholds. I found it disturbing that some commentators in the media sought to portray the X case and the grounds of suicide as some sort of permission for termination on the basis of mental health. That is not the case. In a scenario, heaven forbid, where a pregnant woman was suicidal, a doctor, physicians, clinicians and experts would have to judge the range of medical treatments that would be appropriate for that woman, be it hospitalisation, medication or the other full range of treatments.

We need to be very careful as we move to the point of legislating for the X case that we do not allow the public debate to be captured by a kind of hysteria, be it by accident or design, that would confuse mental health as a general category with a woman who is suicidal and who can only be saved by a medical termination. Those things are worlds apart from each other. Having said that, I hope the Government is not minded to legislate for the X case and somehow try to rule out the suicide risk. I do not believe this would be legally possible and would cause any legislation to fall at the first hurdle. It would also be very wrong to proceed on that basis because although the restrictions are in place, the law is clear.

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