Dr. Alan D. P. Brady:

In regard to fatal foetal abnormalities and whether we would stay within Article 3 if we provided for them, I am not sure that is necessarily the case, but it is a difficult question to answer because the European Convention on Human Rights is treated as a living document and is interpreted on an ongoing basis by the European Court of Human Rights. Its analysis to date would suggest that denying abortions in cases of lethal foetal abnormality may be a violation. Now that Article 3 has been found to be part of the analysis of abortion, an argument could be made that cases of rape or incest are also covered by it. However, I do not think it would be permissible under Article 40.3.3° at present to provide for abortion in cases of rape or incest. That would require a constitutional amendment.

Phrases such as "floodgates" are possibly unhelpful in these circumstances. I am aware this was discussed in some detail yesterday. The Constitution as interpreted by the Supreme Court states that where a doctor is satisfied there is a real and substantial risk to life and termination is required to avoid that risk, the woman is entitled to an abortion. That is the test and we are going to have to trust our doctors to apply it in practice. I understand that umbrage was taken yesterday at the suggestion that doctors would not be capable of applying that test. The floodgates argument is something of a red herring.

In regard to Senator Crown's point, I am not going to take a position on a specific date. As an organisation that bases its analysis on constitutional rights and legal expertise, the position taken in the Roche case was that the rights under Article 40.3.3° enter into effect at the point of implantation. However, it is important to distinguish between the right to life of the unborn under Article 40.3.3° and the constitutional rights of a born person under the rest of the Constitution. As the Constitution draws such a distinction, it is a right specific to an unborn child. I realise I may not have answered the Senator's specific question but that is as far as I propose to go because I want to keep to the rights provided in the Constitution.

In regard to sections 58 and 59, doctors in this situation are already making decisions about life and death and are faced with difficult choices. Sections 58 and 59 provide for an additional and very unpleasant factor, namely, the possibility of going to jail for life. Penal servitude was abolished in 1997 and the punishment would now be life imprisonment. It is not helpful for a doctor who is making this kind of life-and-death decision to have that weighing in the balance. The ICCL takes the view that the Act should be repealed, but it is not sufficient to repeal it on its own because Article 8 still requires us to establish an accessible mechanism for the constitutional right to be activated. Removing that would not suffice in itself because in circumstances in which, for example, opinions differ on the existence of a threat to life between the woman and her doctor or among doctors, some mechanism is required for resolving the difference quickly.

As regards criminalising abortion outside the setting of medical treatment, there is no difficulty with replacing sections 58 and 59 to deal with what are commonly called back-street abortions, that is, any abortion not performed by an obstetrician in a hospital. The State has a legitimate interest in ensuring such practices do not occur in order to protect the right to life of the woman.

On the question of defining foetal abnormalities raised by Deputy Mitchell O'Connor, the particular cases we discussed included Edwards syndrome and anencephaly, but we are open to the views of medical practitioners in particular. The core point is that if a doctor states that a foetus will not survive outside the womb, this is a circumstance in which we believe there would be no difficulty in providing for a termination under Article 40.3.3° As I am not a medical person I will not provide a specific list, but I hope I have gone some way towards answering the Deputy's question. Once again, we need to trust our medical professionals in this regard.

Deputy Naughten asked about implantation. The Roche case indicates that the right under Article 40.3.3° does not arise until implantation. There must also be the possibility of being born for that right to be engaged. The Roche case deals with a frozen embryo rather than abortion, but it is all we have in terms of guidance from the Supreme Court on the meaning of the right to life.