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

Friday, 7 December 2012

Dáil Éireann Debate
Vol. 785 No. 4

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(Speaker Continuing)

[Deputy Michael McNamara: Information on Michael McNamara Zoom on Michael McNamara] I have heard such claims from medical doctors who work in obstetrics. The master of the National Maternity Hospital at Holles Street called for more guidance to deal with the grey area that arises in cases where there has been a risk to the mother's life, and a consultant in emergency medicine, Dr. Patrick Plunkett, called for legislation to clarify when doctors can intervene and terminate a pregnancy in a bid to protect the mother's life. Therefore, I welcome the Government's commitment to bring forward legislation to bring clarity in that area.

  That, however, is not the end of successive Governments' failures to legislate in this complex area. Some Deputies have said marriage is primarily about children, its main purpose being to propagate. While I disagree with that, an increasing number of couples find it difficult to propagate. They find it difficult to conceive a child and, as a result, resort to IVF and assisted reproductive methods. One of the undeniable consequences of that is an increase in the number of frozen embryos, again a matter for which the House has failed to legislate. In Roche v. Roche and others, it fell to the Supreme Court to decide whether a frozen embryo was human life within the meaning of Article 40.3.3°. The Chief Justice, Mr. Justice Murray, said:

I do not consider that it is for a Court of law, faced with the most divergent if most learned views in the discourses available to it from the disciplines referred to, to pronounce on the truth of when human life begins.

It is important to recall that the European Court of Human Rights came to the same conclusion in the A, B and C case, that is, that there is no consensus in Europe as to when human life begins and that protection for that human life and the decision as to the moment it begins falls to member states to adjudicate. This State has singularly failed to decide when human life begins and when the protection of human life begins in accordance with Article 40.3.3°. The Supreme Court, in the case of Roche v. Roche and others, decided that frozen embryos did not attract the protection of Article 40.3.3°. Mr. Justice Hardiman stated:

But the fact that difficulties are raised does not absolve the legislature from the obligation to consider the degree of respect due to fertilised embryos and to act upon such consideration “by its laws”. There has been a marked reluctance on the part of the legislature actually to legislate on these issues: the Court simply draws attention to this. That is all it can do. That is what McCarthy J. did, apparently in vain, in the X case eighteen years ago. But the Court does so as seriously and as urgently as it can.

  Another anomaly in Irish law concerns the 2007 case of Ms D, a minor, which was also considered by the European Court in the A, B and C case. Ms D was a minor in HSE care who had been prevented from going abroad for an abortion. Her foetus had been diagnosed with anencephaly, a condition where a major part of the brain is missing. The diagnosis was accepted as being incompatible with life outside the womb. The High Court clarified that the case was not about abortion or termination of pregnancy but about the right to travel, admittedly for the purpose of a pregnancy termination. I happened to be in court on other business the morning Ms D applied to the court. I recall her standing towards the back of a crowded court room full of bewigged and begowned barristers and solicitors as her medical details were read out to the crowded courtroom. Women with a medical condition such as hers should not be dragged into court to outline the most intimate medical details to a crowded courtroom.

  In the A, B and C case, the European Court of Human Rights considered it evident that travelling abroad for an abortion constituted a significant psychological burden on each applicant but concluded there had been no violation of the convention as regards the first and second applicants. In general terms, the court affirmed that it does not consider that the prohibition in Ireland of abortion for health and well-being reasons exceeds the margin of appreciation accorded in that respect to the Irish State.

  Nevertheless, it is high time the Legislature decided what exactly constitutes the unborn who attract the protection of Article 40.3.3°, aside from the A, B and C and X cases. Does it include frozen embryos? If not, when will this Legislature legislate for that? Does it include a foetus that is diagnosed with a condition that is incompatible with life outside the womb? For the avoidance of doubt, because I am clear this issue is emotive and that every word every politician says on it is likely to be skewed, I am not talking about diagnoses of an illness or disability. I am talking about a diagnosis where it is found that the foetus is incompatible with life. Does that foetus enjoy the protection of the right to life?

Deputy Michael Creed: Information on Michael Creed Zoom on Michael Creed I welcome the opportunity to speak on the Government commissioned report of the expert group on the judgment in the A, B and C case, which has led to a broader discussion on the provisions in our Constitution and the interpretation of the Constitution, particularly with regard to the X case.

I thank the members of the expert group for a report that is very legible, even for a lay person, but which raises very complex issues. I thank them for that.

It is well nigh impossible to debate this issue without reference to the tragic death of Savita Halappanavar in Galway. I extend my sympathy to her husband and family on her very tragic death. What made the story newsworthy was the fact that deaths of that nature are, thankfully, rare occurrences. It has evolved into a greater story with many facets. It was always going to be difficult to have a rational debate on the expert group report on A, B, and C, without the emotive charge of the death of Savita Halappanavar. Until we know all the facts, it is important not to confuse the two issues.

For that reason, I welcome the HSE inquiry and the decision by HIQA to hold its own inquiry. I hope those reports can be expedited and can inform this debate. I also hope the inquest can be expedited so that we have a full picture of what happened.

The issue is one of great public interest and sadness because it is unusual, but not unprecedented. We remember the tragic death of Ms Tania McCabe which was followed by a similar statutory inquiry. For those who care to read the report of the inquiry, the circumstances are somewhat similar and the outcome also tragic. It is important to acknowledge the content of that report and that it assists us in coming to a decision.

This is a complex issue. It is one for the Irish people and their representatives to decide. For that reason, I was irked by the offensive reference to the issue by the visiting United States Secretary of State, Mrs. Hillary Clinton.

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