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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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Deputy John Lyons: Information on John Lyons Zoom on John Lyons In the same way as Deputy Donohoe, I will never understand the issue to the extent of a woman, but I wish to contribute to the debate nonetheless. We have waited a very long time in this country to have this debate, but now that it has come it is very welcome. Like everyone else in the House, I have been inundated with telephone calls, letters and e-mails from constituents - from home and abroad - in recent weeks about the death of Savita Halappanavar. Many of those who contacted me were also people who stood on Kildare Street on the day the story broke, and marched on O'Connell Street the following Saturday, to show their support and compassion for Savita's family. I have never seen such a public reaction, and how it has informed the debate in this House.

  Until then, for many the X case was an abstract, legal discussion, but now it is also a personal story of loss. People with previously entrenched positions in this debate have realised the status quo cannot continue. The recent polls tell us the public wants this issue resolved, and it will be. We have an opportunity to show the women of this country that we will act to vindicate their rights, show leadership and provide clarity of purpose on the issue. Many of those who contacted me in recent weeks said that for too long politicians had dodged the issue and that they would not stand for it. This Chamber and its Members cannot be the rock on which the tide of public opinion breaks and recedes. Not this time.

  In the same way as other Labour Party candidates, I stood in the previous general election on a manifesto that included a commitment to legislate for the X case. I want the commitment to be honoured not just because it was often a difficult and lonely policy to support, but because it is the right thing to do. We have seen the expert group report. We know the options it gives us and we must now draw up a plan to proceed. Whatever course of action is chosen - be it legislation, regulations or a combination of both - I will support it. The report does caution that to get the right balance between appropriate drafting and democratic scrutiny will take time.

  I know the impatience of people and the desire for an immediate reaction but we should not spend a minute more or less than we need on the issue. This is the opportunity many people never thought they would see, and I am prepared to wait just a little bit longer for a response that will satisfy the people of this country. Regardless of whether we like it, this debate and the subsequent legislative response will not be the end of the abortion debate in Ireland. That will be the case as long as thousands of Irish women continue to travel to other countries to access medical services each year. Whatever people's opinions on abortion beyond the X case, it is a debate in which we must all engage at some point.

Deputy Charles Flanagan: Information on Charles Flanagan Zoom on Charles Flanagan I welcome the report and recommend its reading by as many citizens of the State as possible. I hope the report is available in all public libraries, schools and colleges. I encourage everyone to go online to read it. The Government must ensure that hard copies of the report are available because of its importance.

  I acknowledge the great work of the expert group and its composition of medical, legal and administrative expertise. It is regrettable the abortion debate in this country has been dominated by extremists on both sides for many years. There is now a middle ground of public opinion that urges us, as legislators, to get on with the job. We have, on the publication of this report, an historic opportunity for all-party consensus on a way forward. The report and its options offer a reasonable solution to a highly charged and emotive issue. Abortion is a difficult, sensitive and divisive issue not only in this country, but around the world. People hold strong personal views. The debate must be kept calm and within certain perspectives of civility. The Government sought the report to provide expert guidance and advice on the State's obligation to the judgment of the European Court of Human Rights. A range of options was sought and it was delivered. Delay and the status quo are not among them. It is 30 years since the highly-charged referendum and 20 years since the X case judgment. The issue must be addressed within the framework of the Constitution and its interpretation by the Supreme Court in the X case.

  The constitutional review group of 1996 recommended legislation as the "only practical possibility" to clarify the state of the law. The all-party group stated that the legislation should cover matters including definitions, protection for appropriate medical intervention, certification of real and substantial risk to the life of the mother and a time limit on lawful termination. Three years later, the Green Paper on abortion in 1999 considered seven options and, of those, two fall within the terms of reference of the current expert group's work. The two options involved primary legislation and regulating abortion in line with the X case criteria.

  It seems to me, therefore, that the only means by which certain legal clarity is required to the issue of lawful termination in Ireland is by means of primary legislation. People require clarity. Failure to act may cost lives. Courts in this country and in Europe have made it clear that this legislative vacuum is unacceptable. Mothers must know the law; doctors must know the law; people must know the law. We are told there are grey areas. Grey areas may cost lives. The report acknowledges that no criteria or procedures have been laid down in law since the X case by which to measure or determine the risk to a woman's life. Hence, there is uncertainty as to the application of the law.

  We have a duty as public representatives to help provide clarity on issues, but I acknowledge that whatever legal clarity is assured, such clarity must be within the confines of the current constitutional framework. Four options were outlined in chapter 7 of the report. None of the four options will lead to abortion on demand. One or more of the options will be considered by the Government and acted upon.

  There is also the issue of the Offences against the Person Act 1861 and in particular sections 58 and 59 thereof. If the favoured course of action is that this House opts for legislation to give effect to the provisions of the X case – I believe it will - then sections 58 and 59 must be replaced. The "chilling effect", as it applies to women and medical practitioners, must be removed in its entirety. The expert report reminds us that the European court indicated that the criminal provisions still in force would have a chilling effect on both women and doctors during the medical consultation process because of the risk for both parties of criminal conviction and imprisonment. The need for legislative compliance which would offer a defence from criminal prosecution seems a necessary protection for medical practitioners.

  Current Medical Council guidelines may be seen at times as ambiguous and can on occasion be interpreted differently. Obstetricians say they require legal protection and they deserve protection where there are legal and practical grey areas. In situations where the mother’s life is not at risk, where the health of the mother is not life threatening, then the law is clear, "A termination cannot be performed". The 1861 Act will apply and a criminal offence will be committed. However, medical emergencies can throw up difficulties and it is sometimes problematic to distinguish between threats to the life of the mother and threats to the health of the mother. The X case decision is the law. The European court requires the State to establish procedures in law to determine the risk to the mother's life and to set out criteria which a doctor may employ to measure that risk. The X case judgment states that the correct test is that a termination is permissible if it was established as a matter of probability that there is a real and substantial risk to the life of the mother and the risk can only be averted by the termination of the pregnancy.

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