Ms Jennifer Schweppe:

The second area I am not going to talk about relates to the issues which will be contained in primary or secondary legislation. There is a need for the principles and policies of the issues to be set out in the parent Act to ensure that the legislation is constitutionally robust. I will make a brief comment on the issues which I have identified and then I would be happy to answer any questions or clarify those issues later.

The first issue I raised in my written submission is key to the decision in A, B and C v. Ireland, namely, how it is to be established if there exists a real and substantial risk to the life of the pregnant woman. I argue that this decision should be left to medical practitioners. Where a woman disagrees with the outcome or decision of medical practitioners, I argue that she should have an automatic right of referral to an independent practitioner. This is part of best medical practice. In the context of this risk, there is no requirement of certainty that there be a real and substantial risk to the life of the woman. It only needs to be established as a matter of probability. Doctors should be satisfied as a matter of probability that there is a real and substantial risk to the life of the woman. Furthermore, termination is only permissible where it is the only way that her life can be vindicated. The X case operates in a very limited way in this regard.

The second main issue I raised relates to matters of conscience and where a doctor conscientiously objects to treating a woman. This position should be respected as it is respected in line with the Medical Council guidelines. Further, I argue for the right of a woman to refuse life-saving termination. This decision should also be respected in the context of her capacity.

The third issue which I raised in my submission relates to foetal viability. I argue that where medical professionals agree that as a matter of probability there is no prospect of life outside the womb, termination of pregnancies should be permissible.

I base this opinion on the Roche v. Roche decision of the Supreme Court, in which case unborn life was defined as life which has the capacity to be born. Life which has the capacity to be born is that which is protected by the Constitution. In cases of inevitable miscarriage or certain cases of lethal foetal abnormality, there is no prospect of life outside the womb and so Article 40.3.3° does not apply.

There has been some discussion on time limits. Again, where there is a real and substantial risk to the life of the woman, theoretically at the very least, termination of the pregnancy is permissible at any stage in the pregnancy. Talking about a termination of pregnancy does not mean we are talking about abortion. A pregnancy can be terminated, as in the most natural of ways, by the woman giving birth or it can be terminated by abortion. Where there is a risk to the life of the woman, best medical practice will determine whether a termination of the pregnancy by abortion or by the birth of the unborn is the best way to proceed. Best medical practice should determine how this is regulated. If we do not provide for this, both lives will be lost and I do not think that is what we are trying to do here.

The next issue to be addressed in legislation is the capacity of a young person to consent to this sort of treatment. The issue of abortion should not be treated differently from the way a young person, generally, consents to medical treatment. That said, the law relating to 16 and 17 year olds and young people under the age of 16 is woefully unclear. Thankfully, the Law Reform Commission has published a report setting out detailed recommendations and a draft Bill outlining how this issue should be dealt with. That legislation should be introduced in parallel with this legislation in order to provide a robust system of medical treatment for young people. The issue of individuals in care of the Health Service Executive and those for whom proxy consent is required also needs to be addressed.

I also urge the committee, at all stages in its proceedings, to use value-neutral and constitutionally-appropriate language. We should not talk about mothers. I am visibly pregnant. I am not a mother. I am a pregnant woman. In the same way, we do not talk about children or babies inside the womb. We talk about the constitutionally-protected unborn or the foetus. I suggest that this language be used in legislation also.

I suggest that the committee take this opportunity to consider more broadly the impact and scope of Article 40.3.3° and legislate for some ancillary issues which I have set out. Of immediate importance is the need to implement the recommendations of the Commission on Assisted Human Reproduction. I have highlighted other issues, some of which were highlighted by the expert group. For example, it is not currently a crime to kill a child in the process of being born. That is an obvious gap in the legislation which can easily be rectified.

We need to take a proactive rather than a reactive approach. We did not think a teenage, pregnant rape victim could be stopped from travelling to another jurisdiction to terminate her pregnancy, but that happened. We need to try to envisage all the possible scenarios which are not directly covered by the X case but which have emerged following the X case and will impact on the life of a woman, her ability to travel and the life of the unborn in the legislation.

These are the issues that should be addressed. I thank the members of the committee for their time and I welcome any questions they might have.