Ms Geraldine Luddy:

Good morning. I thank the Chairman and members for the invitation to attend these hearings in order to set out the context for the committee's deliberations and provide some background to the Government decision last December on the implementation of the judgment of the European Court of Human Rights in the A, B and C v. Ireland case. I am pleased to be here. I look forward to the debate that will take place and to the input of those who have been invited to come before the committee. We are confident that these hearings will assist us in examining the issues involved in the implementation of the judgment to which I refer and in formulating a legislative response that will stand up to public and parliamentary scrutiny.

As members are aware, last December, prior to the Dáil recess, the Government approved the implementation of the judgment of the European Court of Human Rights in the A, B and C v. Ireland case by way of legislation and regulation, within the parameters of Article 40.3.3^o of the Constitution as interpreted by the Supreme Court in the X case. The Government also agreed to make appropriate amendments to the criminal law in this area, namely, the 1861 Act. This is in line with the recommendations which emerged on foot of a number of previous consultations on this subject in the past. As the expert group pointed out, the issue of how to provide for the X case has been considered by other eminent groups such as, for example, the Constitution Review Group in 1996, those who produced the Green Paper in 1999 and members' colleagues in the all-party Joint Oireachtas Committee on the Constitution in 2000. They all concluded that legislation, in some form, is the most appropriate way in which to regulate access to lawful abortion in Ireland.

Now that this decision has been taken, the Government will in the coming months be examining the procedural options for the operation of a scheme to guide clinical decision-making for doctors who find themselves dealing with pregnant women in very difficult circumstances whereby there is a real and substantial risk to their lives and where a lawful termination is one of the options to be considered. The committee's hearings will be a very important in the context of that process. These procedural options are complex, particularly in light of the technical, medical, legal, ethical and health service organisational implications.

The legislative provisions on termination of pregnancy in Ireland date back to 1861 and for the past 30 years have been fraught with much controversy. Abortion is currently a felony under the Offences Against the Person Act 1861 and a sentence of penal servitude for life can be imposed for the offence. In 1983 the first of Ireland's referendums on this subject was held and during the 1980s several landmark court cases were taken. The referendum to which I refer introduced a new section in Article 40.3 which was to guarantee the right to life of the unborn. This section became Article 40.3.3° of the Irish Constitution - or the eight amendment thereto - and indicates that, "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 Attorney General v. X in 1992, the Supreme Court considered the meaning of the eighth amendment in the circumstances that arose in this case. "X" was a 14 year old girl who became pregnant as a result of an alleged rape. The girl and her parents wished to travel abroad so that she could have an abortion. The issue of having scientific tests carried out on retrieved foetal tissue so as to determine paternity was raised with An Garda Síochána. The Director of Public Prosecutions was consulted and, in turn, informed the Attorney General. An injunction was obtained to restrain the girl from leaving the jurisdiction or from arranging or carrying out a termination of the pregnancy.

The High Court granted an interim injunction and the case was appealed to the Supreme Court. A majority of the Supreme Court rejected the view of the High Court that the risk that the mother would take her life, if not permitted to have an abortion, was of a lesser and different order of magnitude than the otherwise certain death of the unborn. On the other hand, the majority of the members of the Supreme Court held that if it was established as a matter of probability that there was a real and substantial risk to the life, as distinct from the health, of the mother and this real and substantial risk could only be averted by a termination of pregnancy, such a termination was lawful. The Supreme Court accepted the evidence that had been adduced in the High Court that the girl had threatened to commit suicide if compelled to carry her pregnancy to full term and deemed that this threat of suicide constituted a real and substantial risk to the life of the mother. On this basis the High Court injunction was lifted.

The second referendum on abortion in Ireland was held on 25 November 1992. The electorate was asked to vote on three proposed amendments to the Constitution. The 12th amendment, which was designed to exclude the risk of suicide as a ground for lawful abortion, was defeated. However, the right to travel and the right to information were accepted and Article 40.3.3° of the Constitution was further amended to reflect the position.

Following the referendum, the issue of information on abortion was dealt with in legislation. The Regulation of Information (Services Outside the State For Termination of Pregnancies) Act 1995 makes it clear that in general, the provision of abortion information is unlawful in Ireland except in very restricted circumstances, and that has remained the position until now.

As members are aware, in December 2009 the European Court of Human Rights heard a case brought by three women in respect of the alleged breach of their rights under the European Convention on Human Rights in regard to abortion in Ireland. This is known as the A, B and C v.Ireland case. All of the applicants were women who unintentionally became pregnant and who travelled to the United Kingdom for abortions. The European Court of Human Rights accepted that Article 40.3.3° of the Irish Constitution, as interpreted by the Supreme Court, provides that it is lawful to terminate a pregnancy in Ireland if it is 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 which can only be avoided by a termination of the pregnancy. This has not been altered by that judgment.

The court found that in the case of Miss A and Ms B there was no violation of their rights and it dismissed their applications. It found that there had been a violation of the applicant's right to privacy and family life contrary to Article 8 of the convention in the case of the third applicant, Ms C. The court held that there was no accessible and effective procedure to enable her to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law. The court ruled that no criteria or procedures have been laid down in Irish law by which that risk is to be measured or determined, leading to uncertainty, and held that further legal clarity was required.

Following on from this judgment, the Government established an expert group in January 2012 to advise on the way this matter could be properly addressed. The group was made up of experts in the fields of obstetrics, psychiatry, general practice, law, regulation and public policy. It met nine times from January to October and submitted its report to the Minister for Health on 13 November.

I know that some of the Members of the Oireachtas present today have made statements in the Dáil or in the Seanad on the report and I hope that they have had time to peruse it carefully over the Christmas break. I will not revisit the report although I would like to say a few words about one of its chapters, which I believe will be the focus of these hearings.

Chapter 6 illuminates possible avenues for the assessment of the entitlement to lawful termination of pregnancy in Ireland and for the delivery of this medical treatment. It discusses the possible qualifications of the doctors involved in this process, the number of doctors that would be responsible and the locations where the terminations might take place. It also provides a lengthy discussion on a formal framework to review the initial clinical decision, which is one of the main requirements emanating from the judgment.

It is important that I set out the nature of the decision reached by the Government last December.

The Government decided that we will have primary legislation which will confer powers on the Minister to make regulations under a new Act. It also agreed that it will consider the matter further when the Department and the Minister have developed proposals based on policy options set out in the report. It is clear, therefore, that much work remains to be done by the Department on the policy requirements to be put into effect by a new legislative framework. This committee's deliberation will be welcome in the context of the work to be carried out. The Department will engage further with the Oireachtas when heads of a Bill have been developed.

I look forward to hearing the members' deliberations on this matter and to the assistance they will provide in the Department's policy work in this area.