Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I 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. The debate on the Bill, as Deputies have noted, coincides with the publication today of the full report of the expert group on the judgment of the European Court of Human Rights in the case of A, B and C v. Ireland. It is unfortunate that we are debating the provisions of the Bill before Members of the House have had an opportunity to reflect on the report published today and before some Members have had an opportunity to read the full report.

The establishment of the group and the publication of this report fulfil an important commitment in the programme for Government. For too long successive Governments have failed to address this issue properly. Over a period of 30 years, since the 1983 referendum, this failure has resulted in a series of difficult court cases for our domestic courts, and also before the European Court of Justice and the European Court of Human Rights. It is the judgment of the latter court which held this State to be in violation of the Convention on Human Rights and starkly detailed both our obligations and our failures as a State. It is important to place where we stand at present in context, following which I intend to detail what must be done having regard to the conclusions contained in the expert group's report. I will then address Deputy Daly's Bill and some other matters.

As other Deputies noted, our law in this area starts with section 58 of the Offences against the Person Act 1861 which criminalises "a woman...and whosoever...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 amendment to the Constitution, adopted by the people in a referendum in 1983. The 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 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 it is established on the balance of probability 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 a pregnancy, such termination is lawful. That case involved a 14 year old girl who had become 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 the referendums held in 1992 and 2002 propositions were put to the people to exclude a threat of suicide as granting 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 determination as to whether the continuation of a pregnancy posed a real and substantial risk to the life of the 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 that for three decades we have had a deeply dysfunctional and obtuse legal architecture that is badly in need of reform. This is well articulated in the judgment of the European Court of Human Rights in the C case. The applicant, C, had been treated for cancer for three years and while in remission became unintentionally pregnant. She went for a series of follow up tests related to her illness which were contra-indicated during early pregnancy. She could not obtain clear medical advice as to the effect of the pregnancy on her health or her 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 cancer and travelled to the United Kingdom for an abortion. In its judgment 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° of the Constitution, the court stated: "While 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 or otherwise, by which that risk is to be measured or determined, leading to uncertainty as to its precise application".

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 and 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 medical consultation process regardless of whether or not prosecutions have in fact been pursued under that Act".

Both the third applicant, that is C, and any doctor ran a risk of serious criminal conviction and imprisonment in the event 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 the applicant 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. The court awarded her €15,000 in damages.

The conclusions of the expert group derive from the A,B,C judgment and are clear and unambiguous. They are detailed in paragraph 47 of the report, which states:

Arising from the judgment Ireland is under a legal obligation to put in place and implement to legislate a 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 court's constitution as requiring only a procedure to establish entitlement to termination without also giving access to such necessary treatment. A pregnant woman essentially now 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 right has existed since 1983 and is the effect of Article 40.3.3° of the Constitution, as interpreted by our Supreme Court. What the State is obliged to do is to put in place measures to enable a woman to exercise such a right and, in the words of the expert group, "regulate and monitor that right to ensure 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. It also addresses the position of the conscientious objector. It further discusses how to implement the European Court of Human Rights judgment 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 considered and discussed by Government and Members of this House.

It was decided by Government today that 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 it would make a decision on the option to be pursued to implement the judgment of the European Court before the Dáil 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, the Minister for Health, Deputy James Reilly, and the Department of Health. However, the Department of Justice and Equality also has an important role. The context of the European Court judgment is clear that in the criminal law area legislation will be required because of what is described as a "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 to both parties of criminal conviction and imprisonment.

With regard to section 58 of the 1861 Act and the related provisions of 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 coextensive with the constitutional prohibition on abortion. It should be borne in mind that the 1861 Act predates the Constitution. Its provisions are only in force in so far as they are consistent and in so far as they are not inconsistent with the Constitution. The provisions fail to provided 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 Cv. Ireland.

The expert group also states it can be argued that the section does not effectively protect the right to life of the unborn. For example, under current Irish law the life of a baby who is in the process of being delivered is not clearly protected, under legislation pertaining to the offences of murder or of abortion. The expert group stated this lacuna should 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, using 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.

In her Bill, Deputy Daly attempts to provide a legal architecture to fulfil our human rights obligations and to give statutory expression to the judgment of the Supreme Court in the X case. The Bill is well intended but unfortunately 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. While 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 also capable of being preserved.

This appears to be a significant flaw in the Bill, which goes to its constitutionality in that Article 43.3 requires the right to life of the foetus to be vindicated if it is possible or practicable to do so without compromising the right to life of the mother. In seeking, understandably, to protect a medical practitioner from criminal prosecution under the 1861 Act should he or she provide medical treatment to woman where there is a real and substantial risk to her life, section 5 provides a blanket immunity to any such medical practitioner from civil liability should he or she be negligent in the provision of said medical treatment and should such negligence result in either the death or permanent incapacity of the woman involved. That is a very serious matter which must be addressed.

The provisions in the Bill relating to decision-making processes as to whether a termination should occur are, unfortunately, confused and inexact. For example, section 5(2) confers an entitlement on a woman to obtain a further opinion from the medical practitioner or practitioners of her choice 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 which deal with the establishment of an appeals body are either flawed or unclear. In cases of medical emergency, they could represent a failure to vindicate a pregnant woman's right to life. By simply conferring a broad power on a Minister to establish an appeals body by order and saying nothing further, this provision is also open to constitutional challenge. Deputy Clare Daly's Bill also fails to adequately deal with the reforms necessary to sections 58 and 59 of the Offences Against the Person Act 1861.

Now that the report of the expert group 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 the necessary decisions will be made before the Christmas recess and that appropriate action will be taken to implement those decisions without undue delay. The debate on Deputy Clare Daly's Bill affords Members an initial opportunity to commence discussion on the expert group's report. In view of the fact that this report has been published and that a commitment has been given by the Government that it will do what is required to address these very important issues, I ask the Deputy to seriously consider not unnecessarily dividing the House by putting her Bill to a vote. I also ask her to consider withdrawing the Bill and to afford to Members the further time they require to debate the expert group's report. On the understanding that decisions will be made by Government before the Christmas recess, it is not reasonable that Deputies should be asked to vote on a Bill on a Wednesday having first received a report that was published at 3 p.m. the previous day.

The Government is now committed to doing what no previous Administration has done in the 30 years since Article 43.3 was incorporated into the Constitution. The steps to be take are within the confines of that constitutional article and its interpretation by the Supreme Court. I hope everyone in the House will be able to discuss these matters in a common sense, rational and sensitive way, both during the course of the debate on the Bill before us and when the formal debate on the expert group's report commences next week. In addressing this issue, Members should ask themselves what they would do or what would they want to see done if it were their wife, mother, sister, granddaughter, niece or, for those Deputies who are women, themselves who were confronted with the dilemma of being informed that to maintain a pregnancy would result in a real and substantial risk to life.

It is the real and substantial risk to life that is the central issue here. Regardless of whatever action the Government takes, Ireland will still have one of the most restrictive laws in Europe with regard to the termination of pregnancies. The Government and I believe that 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 it is of crucial importance that Members do not resort to extreme language. We should be conscious of the impact of what we say, both in the House and outside, 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 outside this Chamber. We are not even addressing - nor can we under the current constitutional provision - issues which many outside the Houses 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. Neither can we 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. I personally believe that this is an indefensible cruelty. The expert group's report documents cases of rape victims and mothers with babies which suffered foetal abnormalities such as encephaly or Edwards syndrome going to Britain in order to effect terminations. In the absence of constitutional change, there will continue to be a British solution to this Irish problem. It is also the position that a pregnancy which poses a serious risk to the health, as opposed to the life, of a woman - even where such risk could result in permanent incapacity - does not provide a basis for effecting a termination in this State.

There is no impediment to men seeking and obtaining any required medical intervention to protect not only their lives but also their health and quality of life. I do not merely have ministerial responsibility for justice and defence, I am also responsible for equality. It can truly be said that the right of pregnant women to have their health protected is, under our constitutional framework, a qualified right. This will remain the position. This is a republic in which we proclaim the equality of all our citizens but the reality is 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 terms of the judgment handed down by the European Court of Human Rights ensure true equality for all citizens of the Republic, both men and women. They are, however, the essential measures necessary to ensure that pregnant women whose lives are at risk will have available to them the medical treatment they require and which is their right. The Government is committed to ensuring that action will be taken in this regard. In that context, I ask Deputy Clare Daly to give serious consideration to not putting the Bill to a vote tomorrow evening.

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