I’d like to thank Deputy Clare Daly for the work undertaken by her in the preparation and publication of her Private Members Bill which is before the House this evening. Tonight’s debate on this Bill coincides with the full publication today of the Report of the Expert Group on the judgement of the European Court of Human rights in the case of A, B and C versus Ireland.
It is unfortunate that we are tonight debating the provisions of this Bill before Members of the House have had an opportunity to reflect on the Report of the Expert Group and before some Members have had an opportunity to read the full Report.
The establishment of the Expert Group and publication of its Report fulfils an important commitment in the Programme for Government. For too long, successive governments have failed to properly address this issue. This failure over a period of thirty years, since the 1983 Referendum, has resulted in a series of difficult court cases before our domestic courts and before the European Court of Justice and the European Court of Human Rights. It is the judgement of the latter court which held this State to be in violation of the Convention on Human Rights which starkly details both our obligations and our failures as a State.
I believe it is important that we place where we presently are in context; then detail what must be done having regard to the conclusions contained in the Expert Group’s Report and I will then finally address Deputy Daly’s Bill.
Our laws in this area start with Section 58 of the Offences Against the Person Act 1861 which criminalises a woman or "whosoever" i.e. any other person, who unlawfully administers any poison or noxious thing or unlawfully uses any instrument or other means to procure a miscarriage.
The issue is constitutionally addressed in the Eight Amendment to the Constitution adopted by the people in a referendum held in 1983. This Article states:
"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right."
In the X case, the Supreme Court prescribed that under this constitutional provision "where is it is established on the balance of probabilities that there is a real and substantial risk to the life, as distinct from the health, of the mother and that such risk could only be averted by the termination of her pregnancy, such termination is lawful."
The case involved a 14 year old girl who became pregnant as a result of rape and was suicidal. The Court deemed the threat of suicide a real and substantial risk justifying a termination of her pregnancy.
In referendums held in 1992 and 2002 propositions were put to the people to exclude a threat of suicide as grounding a "real and substantial" threat to the life of a mother permitting a termination. It is right that we recall that both propositions were rejected.
No action was taken at any stage by this House to prescribe the procedure applicable for a determination as to whether the continuation of a pregnancy posed a real and substantial risk to the life of a mother nor was any legislation enacted to amend the 1861 Act to ensure its compatibility with Article 40.3.3 of the Constitution as interpreted by the X case, nor to update its content to take account of modern medical techniques and pharmaceutical advances.
The truth is we have had, for three decades, a deeply dysfunctional and obtuse legal architecture badly in need of reform. This is well articulated in the judgement of the Court of Human Rights in the C case.
The applicant, C, had been treated for cancer for three years. She became unintentionally pregnant when in remission. She went for a series of follow up tests related to her illness which were contraindicated during early pregnancy. She could not 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 the foetus. She feared the possibility that the pregnancy might lead to a recurrence of the cancer and travelled to the UK for an abortion. In its judgement, the Court held that there had been a violation of Article 8 of the European Convention in respect of C. Referring to Article 40.3.3 the Court stated
"…[w]hile a constitutional provision of this scope is not unusual, no criteria or procedures have been subsequently laid down in Irish law, whether in legislation, case law or otherwise, by which that risk is to be measured or determined, leading to uncertainty as to its precise application. Indeed, while this constitutional provision (as interpreted by the Supreme Court in the X case) qualified Sections 58 and 59 of the earlier 1861 Act…. those sections have never been amended so that, on their face, they remain in force with their absolute prohibition on abortion and associated criminal offences thereby contributing to the lack of certainty for a woman seeking a lawful abortion in Ireland."
The Court continued:
"Against this background of substantial uncertainty, the Court considers it evident that the criminal provisions of the 1861 Act would constitute a significant chilling factor for both women and doctors in the medial consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act. Both the third applicant [i.e. ‘C’] and any doctor ran a risk of serious criminal conviction and imprisonment in the event that a decision taken in a medical consultation, that the woman was entitled to an abortion in Ireland given the risk to her life, was later found not to accord with Article 40.3.3 of the Constitution."
The Court found that the lack of an effective procedure in Ireland, which meant that she could not determine her entitlement to a lawful abortion in Ireland, caused considerable suffering and anxiety to C, who was confronted with the fear that her life was threatened by her pregnancy. She was awarded damages of €15,000.
The conclusions of the Expert Group derived from the ABC judgement are clear and unambiguous. They are detailed in paragraph 4.7 of their Report in which they state "Arising from the judgment, Ireland is under a legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether or not they are entitled to a lawful abortion in accordance with Article 40.3.3 of the Constitution as interpreted by the Supreme Court in the X case, and, by necessary implication, access to abortion services in the State. It would obviously be insufficient for the State to interpret the Courts judgement as requiring only a procedure to establish entitlement to termination without also giving access to such necessary treatment."
A pregnant woman essentially has a recognised constitutional right to have a pregnancy terminated where continuation of the pregnancy poses a real and substantial risk to her life. This is the effect of Article 40.3.3 as interpreted by our Supreme Court. What the State is obliged to do is to put in place measures to enable a woman exercise such right and in the words of the Expert Group "regulate and monitor that right to ensure that the general constitutional prohibition on abortion is maintained." Any measures put in place must not act as an obstacle to any woman legitimately entitled to seek a termination doing so.
The Expert Group report proposes a variety of procedural options to be put in place for determining entitlement and access to a termination of pregnancy, providing for an initial determination and a review process and also addresses the position of the conscientious objector.
It further discusses how to implement the European Court of Human Rights judgement under the procedures chosen. It gives the options of guidelines, regulations, legislation or a mix of legislation and regulations. These are the proposals to be now considered and discussed by Government and Members of this House.
It was decided by Government today that a discussion on the Expert Group Report would occur in the House next Tuesday and that further time would be made available. The Government also decided that it will make a decision on the option to be pursued to implement the judgement of the European Court before the Dail goes into recess. It is the intention of the Government to make the necessary decisions to provide the architecture required to fulfil our human rights obligations.
Many of the issues to be dealt with in the Report fall under the aegis of my colleague Dr James Reilly TD, the Minister for Health and the Department for Health. However, the Department of Justice and Equality also has an important role. In the context of the European Court judgement it is clear that in the criminal law area, legislation will be required because of what is described as the significant "chilling effect of the criminal law provisions in the 1861 Act which impact on both women and doctors during the medical consultation process because of the risk for both parties of criminal conviction and imprisonment."
With regard to Section 58 of the Offences Against the person Act 1861 and the related provision in Section 59 the Expert Group states "The provisions are arguably unclear as to their scope and content. It is not clear, from reading the section, what sort of conduct would be liable to criminal prosecution, and what would not. Nor is it clear whether the scope and content of the prohibition on abortion is co-extensive with the constitutional prohibition on abortion. It should be borne in mind that the 1861 Act pre-dates the Constitution and its provisions are only in force insofar as they are not inconsistent with the Constitution.
The provisions fail to provide specific protection for the right to life of a woman whose life is at risk due to her pregnancy. This has been the subject of sustained criticism by the Irish Courts and was impugned in the judgment in A,B and C v Ireland.
It can also be argued that the section does not effectively protect the right to life of the unborn. For instance, under Irish law, currently, the life of a baby who is in the process of being delivered is not clearly protected either under the offence of murder or the offence of abortion. This lacuna could be addressed by changing the 1861 Act."
I believe it is absolutely clear that the only appropriate action to take is to repeal and replace the 1861 Act with modern language which does not criminalise the termination of a pregnancy where its continuation poses a "real and substantial risk to the life of the mother."
Deputy Daly in her Bill attempts to provide a legal architecture to fulfil our human rights obligations and to give statutory expression to the judgement of the Supreme Court in the X case. I know the Bill is well intended but unfortunately it is substantially defective. It fails to maintain the necessary constitutional balance and does not address in detail a number of important issues dealt with by the Expert Group. Whilst it seeks to provide protections for a woman whose life is at risk, it absolves medical practitioners from any duty to consider whether the life of the foetus is capable of being preserved. This appears to be a very significant flaw in the Bill which goes to its constitutionality in that Article 40.3.3 requires the right to life of the foetus to be vindicated if it is possible (practicable) to do so without compromising the right to life of the mother.
Section 5 of the Bill in seeking understandably to protect a medical practitioner from criminal prosecution should the medical practitioner provide medical treatment to a woman where there is a real and substantial risk to her life provides a blanket immunity to any such medical practitioner from civil liability should the medical practitioner be negligent in the provision of the medical treatment and should such negligence result in either the death or the permanent incapacity of the woman.
The provisions in the Bill relating to decision making processes as to whether a termination should occur are confused and inexact. For example, Section 5 (2) confers an entitlement on a woman to obtain "a further opinion" from her choice of "medical practitioner or practitioners" but does not explain the relevance of such second opinion or what action might be taken pursuant to it. In addition, the provisions in the Bill dealing with the establishment of an appeals body are flawed or unclear or could in cases of medical urgency represent a failure to vindicate a pregnant womans right to life. By simply conferring a broad power on a Minister "by order" to establish an appeals body and saying no more, this provision also is open to constitutional challenge.
Deputy Daly’s Bill also fails to adequately deal with Section 58 and 59 of the Offences Against the Person Act.
Now that the Expert Group’s Report has been published we have a clear insight into the issues which need to be addressed. There is also now a clear statement from government that necessary decisions will be made before the Christmas recess and that appropriate action will be taken without undue delay to implement those decisions. The debate on Deputy Daly’s Bill affords Members of the House an opportunity to commence discussion on the Expert Groups Report and now that the Report is published and a commitment has been given by Government to do what is required to address these very important issues, I would ask Deputy Daly to not unnecessarily divide the House by putting her Bill to the vote. I would ask her to consider withdrawing the Bill and to afford to Members of the House the further time they require to debate the Report on the understanding that decisions will be made by Government before the Christmas recess.
This Government is now committed to do what no government has done in the thirty years since Article 40.3.3 was incorporated into our Constitution. The steps to be taken are within the confines of that Constitutional Article and its interpretation by our Supreme Court. I hope we can discuss these matters in a common-sense, rational and sensitive way. I believe Members of this House, in addressing this issue, should ask themselves what would they do, or what would they want to see done, if it was their wife, their mother, their sister, their granddaughter or their niece or, for those Members of this House who are women, if it were themselves who were confronted by the dilemma of being informed that to continue to maintain a pregnancy would result in a real and substantial risk to life. It is a real and substantial risk to life that is central. Whatever action Government takes we will still have in this country one of the most restrictive laws in Europe with regard to the termination of pregnancies. Both women and medical practitioners are entitled to know where they stand and what procedures are available to address the circumstances in which a pregnancy is terminable under our constitutional code. In debating this issue I believe it is of crucial important that Member of this House do not resort to extreme language. We should be conscious of the impact of what we say both in this House and outside it on women who have miscarried or who have had pregnancies terminated where their lives have been at risk.
We should also be clear on what we are not doing. We are not considering, in any shape or form, abortion on demand as is alleged by some. We are not even addressing nor can we under the current constitutional provision, issues that many outside this House believe should be addressed. For example, whatever decision is taken by Government we cannot provide, in this State, for the termination of a pregnancy resulting from rape in the absence of the victim being suicidal. We cannot provide for the termination of a pregnancy where there is a foetal abnormality which will, as a certainty, result in the birth of a baby unable to survive. The Expert Group Report documents cases of rape victims going to Britain to effect terminations and of mothers with babies who suffered foetal abnormalities such as anencephaly or Edwards syndrome. In the absence of constitutional change there will continue to be a British solution to this Irish problem. It is also of course the position that a pregnancy that poses a serious risk to the health as opposed to the life of a woman, even where such health risk could result in permanent incapacity, does not provide a basis for effecting a termination in this State. The reality of course is that there is no impediment to men seeking and obtaining any required medical intervention to protect not only their life but also their health and quality of life. I am, of course, not only Minister for Justice and Defence but also Minister for Equality and it can truly be said that the right of pregnant women to have their health protected is, under our constitutional framework, a qualified right as is their right to bodily integrity. This will remain the position. This is a republic in we proclaim the equality of all citizens but it is a reality that some citizens are more equal than others.
We should not pretend that the limited measures that must now be put in place to satisfy the judgement of the European Court ensure true equality for all citizens of this republic, both men and women. They are however essential to ensuring that pregnant women whose lives are at risk have available to them the medical treatment they require.