Professor William Binchy:

It is an honour and a privilege to be here today. I congratulate the Chairman and members of the committee on the wonderful job they have done in distilling the complex and challenging arguments on this very humane theme. I will not speak on the points that I presented to the committee. Members can read them in their own time. I want to open on a few points which I am sure will be raised in our discussion over the next two hours. The first point I wish to mention is the obvious one that, whatever our perspective, we are dealing with a human rights issue. I have come to this issue and to the committee as one who believes in the human rights of the unborn and it goes without saying that I also believe very much in the rights of those who have been born and very specifically the mother of an unborn child.

The evidence that the committee heard yesterday and the discussion that developed were interesting because they established, broadly but definitely, that what is going on in Irish hospitals is wonderful. The doctors treat the mother and the unborn child as two patients. They do their best for both and they make sure that mothers do not die. That is wonderful news. We did not hear that doctors are holding back or are nervous about intervening, or that the law is getting in the way of what they do. On the contrary, the doctors said they do exactly what they wish to do in order to bring about that result. The net effect of that is that some unborn children regrettably do die. They are not targeted but if one carries out necessary medical treatment on the mother, the unborn child, in some circumstances, very predictably, will die. The outcome is also that Ireland is one of the safest places in the world for a woman to be pregnant. All of that we know. I suggest that most people in Ireland want legal support for the actuality on the ground. In other words, the argument I am putting forward is not a theoretical, abstract, metaphysical one but one that points to the maternity hospitals that are near us here, one of which is a stone's throw away - we could walk there in five minutes. We are asking that what they do there every day and night should have the support of the law. It is a very practical proposal that the present existing medical practice should be given legal support.

The difficulty in this area is that unfortunately, 20 years ago, with the best will in the world but without having heard any expert evidence from a psychiatrist, the Supreme Court interpreted the amendment we had been dealing with for the past 30 years as involving a different legal and medical scenario, which would involve a change in existing medical practice. I am not in any sense denigrating the judges involved. What the Supreme Court articulated in that decision would, if implemented in legislation, very definitely involve a change in legal practice.

At the most obvious level it would involve obstetricians carrying out abortions in circumstances where the woman in question and the child she is carrying are physically entirely healthy but in circumstances of suicidal ideation. This would be a change to existing medical practice. Yesterday we heard from psychiatrists, who had nuanced differences in their views but who do not regard abortion as an appropriate treatment for suicidal ideation. The evidence they gave was striking. The proposal is to implement the X decision of the Supreme Court to change medical practice, remove the approach of doctors towards treating mothers and children as two patients and transforming it by, as it were, involving what are undoubtedly abortions, and specifically in the context of suicidal ideation involving abortions in circumstances where they do not take place at present.

We then get to the legal and political dimension to this problem, which is the European Court of Human Rights decision in A, B and C v. Ireland. This decision is under the European Convention on Human Rights and thus far, it is a point worth making, this convention has not been interpreted as providing for a right to liberal abortion. On the contrary, the European Court of Human Rights denied this particular proposition and what it stated in this case is that Ireland must clarify its law. In other words, a woman who wants to know what the situation is in her medical circumstances, what her entitlements are and how medical practice will operate in her context must have a clear line of understanding, and if she disagrees with what a particular doctor proposes she must be able to look to another doctor. This is absolutely reasonable. One could make the argument that what was involved in the A, B and C v. Ireland case was not so much a lack of clarity in the existing law, which is absolutely plain, or in the existing medical practice, which, as I stated, is carried out in Irish hospitals day and night, but rather a lack of understanding of what this issue was.

What the A, B and C v. Ireland case is concerned about is the question of clarity in our law. It does not state we must introduce the Supreme Court judgment into our law by legislation. I stress this point very strongly and I invite the committee, not necessarily to believe me on this as its members might regard me as a partisan advocate in this area rather than simply a cold legal analyst, but to seek the advice of the Attorney General on whether the A, B and C v. Ireland judgment requires Ireland to implement the existing framework of law as articulated in the X decision or, on the contrary, leaves Ireland to determine its own legal policy in the area towards the protection of the unborn. Undoubtedly it is the latter of these two propositions. However, we are being told by many sources, including official sources, that Ireland must, under the A, B and C v. Ireland decision, implement the European judgment by implementing the Supreme Court decision. This is not a correct statement of law.

We then move very much to the political domain and I ask committee members to forgive me for treading into their territory. Prior to the election, Fine Gael made it absolutely plain it would not legislate to implement the Supreme Court decision. The Government established an expert group with terms of reference. It is an act of Executive power by the Government to establish an expert group with specific terms of reference. Included in these was the crucial term of reference that the expert group would put forward options which would be reflected upon by the Legislature having regard to constitutional, legal, ethical and medical considerations in the formulation of policy in this area. In other words, the hands of the expert group were not tied in any way, nor should they have been, simply to implementing what the Supreme Court stated. The expert group was given a broad brief to bring in proposals in the form of options based on constitutional, legal, ethical and medical considerations.

There is something very strange in the report, which is a statement at its beginning that the only brief which the Minister for Health, Deputy Reilly, gave the expert group was to bring in options consistent with the existing constitutional framework, that is to say the constitutional framework as interpreted by the Supreme Court decision. We have a Minister, contrary to the terms of reference by which his Government established the group and the promise given by Fine Gael going into the election, apparently briefing the expert group to bring in options within the scope of the X decision. The Government then stated it must act on the report of the expert group, which found its terms were narrowed by the Minister, and here we are speaking about legislation.

In these circumstances, I sincerely request committee members to probe the Minister to explain why he briefed the committee in this way contrary to the terms of reference of the Government. It raises serious political issues, but it also raises serious legal issues in terms of going against a committee established in the exercise of Executive power of the Government. This is an important point. It is absolutely crucial because it has had the effect of the Government now stating the expert group has come forward with a limited range of options which essentially sets the tone for debate. It does not set the tone for debate. It is entirely consistent. The Irish people formulate policy in this area on questions of human rights. The Irish people are perfectly entitled in the exercise of their democratic power to come forward with such protection of the unborn as they wish.

If the committee wants to know the type of regime I would like, it is not a theoretical and metaphysical regime based on lofty academic theory but rather I invite committee members to go 500 yards down the road and ask those working at the maternity hospital there what they are doing, and go across the river and ask those at the Rotunda Hospital what they are doing. The committee should ask hospitals. It has already asked them and has been told by doctors what they are doing. We need legal protection for the existing medical situation dealing with pregnant women and their unborn children, and also to address the question of suicidal ideation in the humane way rather than by terminating the lives of unborn children. I am sure there will be plenty of questions.