Marcella Corcoran Kennedy (Offaly, Fine Gael) | Oireachtas source

I welcome the opportunity to speak on this incredibly important legislation. I thank the Minister for Health, Deputy Simon Harris, and his team for being ready with the legislation following the recent Supreme Court judgment.

Unexpected pregnancy has featured in the lives of women and men in this country and globally for as long as we have existed on this planet. A woman's choice to end a pregnancy has been the subject of great debate in Ireland for decades. In considering this Bill, it is important to look back in order that we can move forward. Abortion was initially outlawed in Ireland in 1861. The relevant sections of this nineteenth century Act remained in law in Ireland until 2013 when they were repealed by the Protection of Life During Pregnancy Act. It remained a criminal offence for doctors to perform an abortion in this country for 152 years. It is absolutely shocking that legislation from 1861 had such an effect on the medical profession in this country. We only have to think back to the Magdalen laundries, to Ann Lovett, the Tuam babies, the Kerry babies and so many other heart breaking cases to be reminded of how pregnant women suffered at the hands of both the Church and the State.

In considering from where we have come, it is important to look at the availability of the termination of pregnancy in Ireland and how we arrived at our current position. In 1965 in the Griswold v. Connecticut case, it was held that the US Constitution implies a fundamental right to privacy and that a ban on contraception was in breach of this right. This was expanded in 1973 in the Roe v Wade case.

In that case, it was ruled that within this right to privacy was the protection of a woman's choice to have an abortion. Ivana Bacik said this case was a catalyst for conservative forces in Ireland to lobby for a constitutional referendum to reinforce the legislative prohibition on abortion. It was Griswold v.Connecticut which was particularly relevant in McGee v.the Attorney General in 1974, as it was in this case that an unenumerated right to marital privacy was outlined. In Ireland, this ruling led to the legalisation of contraception and, particularly, was influential for the referendum on the eighth amendment even though the case itself was not about abortion. There were fears that if this right to marital privacy could be interpreted from the Constitution, a right to abortion might also be gleaned as per Roe.

In 1983, as we all know, the eighth amendment to the Constitution was introduced. In it, "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." It is my view, and I do not think many would argue with me, that the aim of that amendment was to prohibit abortion being carried out in this country. In that regard, it has failed dramatically, as we know by the evidence presented to us by the Citizens' Assembly and the joint Oireachtas committee that we charged to examine the assembly's report.

Next we come to the X case in 1992. This case required that the courts examine for the first time how the right to life of the unborn and the right to life of the mother interact. The ruling was that if there was a substantial risk to the life of the mother, including a risk because of suicide, abortion was to be permitted. While that was a step towards liberalising abortion laws in Ireland, this progress was not matched by the Legislature. We did not react to the ruling at all. There was no new legislation introduced, meaning that the 1861 Act was still in force. This led to great legal confusion for the people on whom we depend most, the medical community. We reneged on our responsibilities in this House at that time. What we did instead was have a referendum in 1992, namely the failed twelfth amendment referendum. This would have stated that suicide was not a substantial risk to the life of the mother for the purposes of obtaining an abortion. The failed twenty-fifth amendment vote in 2002 would have removed suicide as a substantial risk to the woman's life in terms of permitting abortion and would have introduced new penalties for anyone performing such a procedure.

I am talking about women's health care in this regard. Women's health care has no place in the Constitution in my view yet, every step of the way, we have prevented women who needed health care from receiving it by pursuing them through the courts or by obliging them to pursue their rights through the courts. That is completely unacceptable.

In 2006, the case of D v.Ireland took place. We hear people referring to the cases of A, B, C, D, X and Y. Let us remind ourselves that in all of those cases, we are talking about human beings - young women who were hoping to have lives, who have brothers, sisters and partners. They are all different cases but we are talking about human beings in our own society. We are not just talking about abstract concepts but people who laugh, cry, are happy or sad and who had aspirations but wound up in the very difficult position of having an unexpected pregnancy. In the D case, at the European Court of Human Rights the woman argued that she had to travel outside the country for the purposes of obtaining a termination for a fatal foetal abnormality. She argued that her human rights had been breached. Unfortunately, it was established that she had not exhausted all possible domestic options before travelling and therefore there was no breach.

Another element of the right to life of the unborn which the courts have had to establish is what exactly counts as the unborn. In 2006, the case of M.R. v.T.R. and others took place, which dealt with in vitrofertilisation, IVF treatment. It established that an unborn child must be in the womb. Again, the ruling was appealed to the Supreme Court and was upheld. In the case of A, B and C v.Ireland, three women brought a case against Ireland who had all had to travel to the UK to obtain terminations.

Thinking back to Savita Halappanavar, it was when we were considering the Protection of Life During Pregnancy Bill that people began really to realise the legal status of what we have in place here. As those of us who were in the House at the time can recall, we legislated very narrowly in that Bill. Under the provisions of the Act, it is still very difficult for women to obtain the treatment they require and it is also difficult for doctors to define what a real and substantial risk is to a woman's life. Máiréad Enright and Fiona de Londras argue that the court judgments were not written with guidance to doctors in mind. Although the Protection of Life During Pregnancy Bill was written for doctors, the core test it requires them to apply in determining whether a woman is entitled to a life-saving abortion is an unvarnished transplant of the X test. It is very sobering and crystallises matters for me that, under the current legislation, it can be less of a legal risk for a doctor to allow a pregnant woman to die under his care than for him to perform an abortion in Ireland. That is incredible to me. The attempt to balance the right to life of the mother and the right to life of the unborn seems to disregard the health of both, as things stand. Therefore, focusing on the life instead of the health of the woman is extremely challenging. It raises questions. Does an inviolable foetus assert its right to life against a pregnant woman?

The Y case is another tragic case. Again, we have to think of the humanity behind the latter. The events took place with the Protection of Life During Pregnancy Act 2013 in force. She was an asylum seeker who arrived in Ireland and, having been raped on her way here, discovered that she was pregnant. She contacted the relevant authorities seeking an abortion and was told she would need to travel to England in order to terminate her pregnancy. That was impossible as she was an asylum seeker with very little money and restricted travel authorisation. She attempted to get to the UK but was denied entry and sent back to Ireland. As time went on, she was disturbed, concerned about her status and told medical staff that she was suicidal and would die rather than have her baby. Eventually, she attempted to take her own life and went on hunger strike. She was told that a termination would be performed if she started to eat again - this is the awful reality of what we are subjecting people to in this country. In the end, a court order was obtained to force feed and hydrate this young woman and she was forced to deliver a baby by Caesarian section. In heaven's name, is that not enough of a reality for people who are thinking about this to be able to say it is wrong for that to have happened to that young woman? She came to Ireland to seek asylum and what did we force her to do? We forced her to have a baby, conceived as a result of a rape, delivered by Caesarian section.

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