Introduction
Ceann Comhairle
There can hardly be a more difficult situation for a woman who is pregnant to face than to be told by her doctor that her unborn child is not fully healthy and well, is not going to grow to achieve all that every mother wishes for her child and, worst of all, is not going to survive.
All her aspirations and dreams for her child are taken away and replaced with grief and distress at the very time when she should be facing a future with joy, hope and happiness.
What unites this house is the empathy and sympathy we all feel for the couples and families who face these terrible situations. Indeed, this house has heard heart rending personal stories from members who have had direct experiences of fatal foetal abnormalities. I too have met families who have been through the trauma of knowing their baby will not survive and who have had the courage and fortitude to share their stories in the hope of saving other people some of the pain they themselves endured. Only the heartless could fail to be moved. Life naturally brings with it sorrows as well as joys but there are certain tragedies that make us all feel the same sense of ‘wrongness’.
The harsh realities of such a situation were made clear for all to see in the recent report from the United Nations Human Rights Committee when it published its views on the complaint against the State brought by Ms Amanda Mellet, whose unborn child had Edwards Syndrome - a genetic condition that usually results in miscarriage or still birth.
As I made clear at the time, I read the details in the report of Ms Mellett’s experience with a heavy heart. Putting aside for a moment the wider constitutional issue involved here, the absence of compassion in her treatment by our health service was deeply distressing. I am very sorry that this is how she was treated. Ireland’s history shows that it has been in the past a cold and uncaring place for women and children and I felt the echoes of that when I read that UN view. I will return to aspects of Ms Mellet’s case again later in my speech but want now to address the Bill before us.
I know that Deputy Wallace and others who support this Bill are minded by a deep personal desire to help every bit as much as anyone else in the house. I not only respect their views. I share them. We all want to help. We want in particular to do something meaningful to help.
And I know Deputy Wallace too would want his Bill not only to be legal and constitutional but also to have a meaningful impact for women. Anything less would be to give false hope to the women who carry these babies and the doctors who care for them.
Reasons for Opposing the Bill
Let me be clear – I am not opposed to the purpose behind the Bill and I will here set out in detail the grounds on which it is currently not possible to support it. In doing so I am fully reflecting the legal advice available to me in relation to the constitutional issues pertaining to this Bill as well as the medical advice I have received from the Chief Medical Officer for the information of the House.
Deputy Wallace’s Bill provides for termination of pregnancy following a diagnosis of fatal foetal abnormality which is defined in the Bill as “a medical condition suffered by the foetus such that it is incompatible with life outside the womb”.
The provisions for certification following receipt of such a diagnosis broadly mirror those of Section 7 of the Protection of Life During Pregnancy Act 2013. The two medical specialists required to certify under this Amendment would be an obstetrician and a perinatologist.
Article 40.3.3 of the Constitution
This country, and this House, is bound by the Constitution. A referendum was held in 1983, resulting in the adoption of a provision which became Article 40.3.3 of the Irish Constitution, commonly known as the Eighth Amendment.
As you are all aware, Article 40.3.3 reads as follows:
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
This Bill falls outside the parameters of Article 40.3.3. as interpreted by the Supreme Court in Attorney General v X in 1992, also known as the X case which held that if it were 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 and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful.
The Protection of Life During Pregnancy Act was commenced on 1st January 2014. Its main purpose is to regulate access to lawful termination of pregnancy in accordance with the X case and the judgment of the European Court of Human rights in the A, B and C v Ireland case. That Bill was considered and debated extensively in Committee, this House, the Upper House and probably houses across the country and I think it was well understood that this piece of legislation was as far as the legislature could go in the absence of a referendum. I’m sure the House will also be aware that the second annual report on the Act has recently been laid before the House.
Supreme Court
Returning to the Bill before us, the Supreme Court reviewed the meaning of the term "unborn" in Article 40.3.3 of the Constitution in Roche v Roche case in 2010. On that occasion, Judge Denham, the now Chief Justice, stated, with regard to the wording of the Eighth Amendment, that:
"…both language versions refer to birth or being born. Thus the fact of being born or birth is a factor in both versions. The beginning of "life" is not the protected term, it is the unborn, the life capable of being born, which is protected. The capacity to be born, or birth, defines the right protected."
Therefore in the case of a foetus with a condition that is incompatible with life, but which is capable of being born alive, and survive even for a very short period, such a foetus is protected by Article 40.3.3 of the Constitution.
Deputy Wallace’s Bill does not define what is meant by “incompatible with life outside the womb”. From examining the Bill before us, two possible interpretations appear possible.
The first interpretation is that the ‘unborn’ has a condition which is incompatible with life outside the womb, but which is capable of being born alive. It is clear that an unborn child who has a capacity to be born alive for a period no matter how short is protected by Article 40.3.3.
The second interpretation is that the unborn has a condition which is incompatible with life outside the womb and has no capacity or capability of being born alive.
I am informed by the Chief Medical Officer that the circumstances in which such a situation would arise do not exist in medical practice. It can never be said that a foetus with a fatal foetal abnormality will not be born to live for a short time, even if that is only to be minutes, to draw a breath and to have a detectable heartbeat. If a foetus has the capacity to be born, it has the protection of the constitution. Any Bill that provides for termination in these circumstances, as this Bill does, would not be constitutional and would also not be medically practicable.
Therefore, to introduce the provisions as Deputy Wallace may intend them, a referendum would be required to amend the Constitution.
It is for this reason that I believe that the Government’s commitment to develop a consensus approach within a Citizen’s Assembly is the way to move forward.
The Government has decided, in view of the Programme for Partnership Government commitment, to establish a Citizen's Assembly as quickly as possible to make recommendations to the Dáil on further constitutional changes, including on the Eighth Amendment of the Constitution as their first topic. The issue of fatal foetal abnormalities can be examined as part of this process and the Assembly will have the support of an Expert Group. I also have said very clearly that I would expect the views of the UN Human Rights Committee will also be considered.
The Government is very conscious that the lack of access in this country to termination of pregnancy in cases of fatal foetal abnormality is one that has caused significant distress to many couples. I have heard from the Terminations for Medical Reasons group on this issue and look forward to meeting with them in the coming days.
I would like to take a moment to return to the Ms Mellet case. I have been informed by the HSE of the supports available to women who find themselves in these very distressing situations. These include HSE funding for the provision of crisis pregnancy and post abortion counselling, and in many cases medical examination, through the Sexual Health and Crisis Pregnancy Programme (SHCPP). The woman’s partner and or family members can also attend these services for support.
Approximately 3,000 women attend State funded Crisis Pregnancy Counselling Services for crisis pregnancy counselling annually, a number of whom attend for more than one appointment. In 2015 just over €3.3 million was provided directly to 16 State funded crisis pregnancy counselling services through this Programme. These services operate out of more than 40 locations nationwide.
However, as I have said, the detail of the UN report shows that services that should have worked for Amanda Mellet clearly did not. There is no doubt this added further to a very distressing situation. I am not satisfied to presume that hers is an isolated experience.
That is why I have asked the HSE to report to me before my meeting with the TFMR group on the clinical and counselling services in place to support women and their families who have to deal with a pre-natal diagnosis of a fatal foetal abnormality. I am also considering within the law what other services and responses can be put in place to help women in these terrible circumstances.
Conclusion
I speak here today as a member of a generation who could not vote in 1983. In fact, I wasn’t even born in 1983. Ireland has changed. Like many people, my own views on this subject have changed, the more I have considered this complex issue and listened to people’s stories. When we listen to the stories of women who received the dreadful diagnosis of fatal foetal abnormality in their babies, there is an inescapable truth. Our present law immeasurably adds to the pain of those who make the difficult decision to terminate the pregnancy. I really wish it was the case that we could change that here today.
But this House cannot change it. Only the Irish people can, and I hope that the Citizens Assembly will recommend that those of us who were never asked the question, and indeed everyone else, will be given the opportunity to answer it, after a careful, considerate, respectful and informed debate.
Ceann Comhairle, Deputies,
I would urge people to oppose this Bill because, although it is well intended, it is unconstitutional, and I cannot support the Bill at this time.