Dr. Alan D. P. Brady:

I will finish my answer to the Senator's question, if he does not mind. In regard to his concern around the diagnosis of suicide, the Supreme Court rejected in the X case the position that had been taken in the High Court, which is a requirement of an immediate risk. The test that is set out is real and substantial risk to life, on the balance of probability, that can only be avoided by termination.

In circumstances like this, we are dealing with life and death situations that, to some extent, involve predicting future human behaviour. We are relying on the best judgment of our medical professionals and our view is that we should trust them. Within the rubric of that test, sometimes they will get it right and sometimes they may perhaps get it wrong. Again, however, the test that is set out does not require absolute certainty; it requires probability that there is a real and substantial risk to the life of the mother that can be avoided by termination. The constitutional position under the X case is very clear and I think we should trust our doctors in that regard.

With regard to Senator Healy Eames' concern around the decision on whether or not to terminate a pregnancy, upon having medical advice that the pregnancy is not viable, I believe it is very easy to look at situations in hindsight. This comes back to what I was saying about the fact we are trusting medical professionals to make difficult decisions about future events. The key point the Irish Council for Civil Liberties would make in that circumstance is that the decision should be made by the woman. This is certainly something that is emphasised in the expert group report in the principles set out in chapter 5 in regard to the test under the X case.

At the moment, under Irish law, the woman does not make the decision; the decision is made for her by an 1861 criminal statute. We have to trust women in that situation. Some women, I have no doubt, will carry the pregnancy to term and, perhaps, even in circumstances where it is clear the child is not going to survive, some women may decide to go to term in any event. Some women may not. I do not think that is a decision that should be made for those women. I have real concerns under Article 3 that the Irish State is seeking to make the decision for women who are faced with a clear medical diagnosis that the pregnancy is not viable, and that there is a real risk we will be found to be in breach of Article 3.

With regard to Deputy Tóibín, as I have indicated already in regard to the question from Senator Crown, the Irish Constitution distinguishes between the right to life of the unborn and the right to life of born people. That is a distinction that derives from the Constitution itself and I not really want to go beyond that.

In regard to Senator Ó Murchú's question, again, we are here today to provide the benefit of our expertise in regard to constitutional rights and human rights. In our analysis, we have, of course, been cognisant of Article 40.3 throughout. We are of the view that in cases of rape and incest, in cases where there is a substantial threat to the life of the mother, ultimately, it may be necessary to provide an abortion, and we are in favour of that as a campaigning organisation. We are not saying at the moment that the European Convention on Human Rights requires that.

In regard to the European Convention on Human Rights position, again, this is something that is considered in detail in cases like A, B and C v. Ireland and Tysiac v. Poland, whereby the court says there is an emerging consensus among the Council of Europe member states in regard to abortion. The vast majority of Council of Europe member states provide for relatively liberal abortion regimes, certainly relative to Ireland. At the moment, the position being taken by that court is that it falls within the margin of appreciation for a state to determine how it governs its abortion regulation itself. In circumstances where Ireland has this constitutional right, however, it has failed to meet the Article 8 obligation.

I do not believe we can discount the possibility that this consensus is changing over time, however, so we need to be live to the fact that, in terms of the development of ECHR case law, if we are looking at, say, a young rape victim who is not suicidal but who is asking for an abortion, in those circumstances, it is entirely feasible that, ultimately, the ECHR may determine it is a violation of Article 3 to deny it. That has not happened yet and I want to be very clear that I am not saying it has happened yet. However, in drafting legislation which will hopefully be in place for some considerable period of time, it is extremely valuable for this committee and for these Houses to have one eye to its human rights obligations internationally.