Ms Ciara Staunton:

I thank you, Chairman, and Deputies and Senators for this invitation to present to the committee. Like Ms Schweppe, I work on the assumption that we are discussing legislation and, perhaps, some regulation. Guidelines are not sufficient to meet the requirements of the case of A, B and C v. Ireland. This has been echoed by the High Court, Supreme Court and various Government reports. The X case ruling states that if there is a real and substantial risk to the life of the mother she is entitled to a lawful abortion. That is the law. Therefore, we have a degree of lawful abortion within Ireland.

For the rest of my presentation I will discuss the need to repeal sections 58 and 59 of the 1861 Act, the real and substantial risk test and the risk of suicide. I will also make some general comments on the procedures for determining when there is a lawful abortion.

First, we need to repeal sections 58 and 59 of the Offences Against the Person Act 1961. Nowhere in those sections are the rights of the unborn or the mother discussed, unlike Article 40.3.3° of the Constitution. We need to amend legislation to complement Article 40.3.3° and the decision of the Supreme Court.

Second, the real and substantial risk test should be put on a statutory footing. This is the only current exception to Article 40.3.3°. As Ms Schweppe said, it is likely, if facts come before the Supreme Court in the future, that we may find another exception to the general prohibition on abortion. The committee should take consideration of these future issues which may arise. The real and substantial risk to the life of the mother is a constitutional exemption and legislation must give effect to the test.

What does the test mean? A real and substantial risk does not mean an immediate and inevitable risk. Mr. Justice McCarthy addressed this in the Supreme Court decision in the X case. We can define the test in another way and say that where there is a real and substantial risk to the life of the woman at some point during the pregnancy, an abortion is lawful in Ireland. It does not have to be proved that death is inevitable and will be immediate, but simply that, as a matter of probability, a death is likely to arise at some point.

The committee must, therefore, consider the issue of time limits. The introduction of time limits is standard practice in many jurisdictions. For this very narrow exception, however, I recommend that we do not include a time limit. We must, rather, trust the medical opinion of our doctors.

Dr. Simon Mills may correct me on some of the following points. Let us consider the example of a woman who is 30 weeks pregnant and whose doctors believe there is a real and substantial risk to her life at some point. She is entitled to a termination of the pregnancy because that is what is putting her life at risk. Her doctors must, therefore, terminate her pregnancy and save her life. The doctors must then make every effort to save the life of the unborn. In that way, both the right to life of the pregnant woman and the unborn are vindicated. This does not mean death to the foetus but simply that we must first look at the right to life of the mother and then vindicate the right to life of the unborn. I recommend that rather than inserting a cut-off point in legislation, the regulations should detail that doctors should save the life of the mother and then make every effort to save the life of the unborn. These difficult cases will come before doctors and we must trust the clinical judgment of our doctors.

The third issue is the narrow suicide test. This has received much attention in the media and in other writings. The real and substantial risk includes the risk of suicide, but only if the risk of suicide arises from the pregnancy and can only be averted by the termination of the pregnancy. If a woman is pregnant due to rape or incest and is suicidal due to the rape of incest she is not entitled to an abortion. That has nothing to do with the pregnancy. However, if her doctors believe the risk of her suicide arises from the pregnancy which has arisen from the rape or incest and that risk of suicide can only be averted by a termination of pregnancy it is then, and only then, that she is entitled to an abortion. Risk of suicide cannot be excluded from the medical issues. Medical issues and suicide are to be treated as one and the same and be subject to the exact same test.

Finally, I will consider the procedures for determining a lawful abortion. First, legislation must take account of the real and substantial risk test. I also echo comments that this is best left to our medical doctors. By putting this statutory defence into legislation we are telling our doctors we will not criminalise them if they perform an abortion when they believe there is a real and substantial risk to the life of the mother. This takes away the chilling effect which the European Court of Human Rights discussed in A, B and C v. Ireland.

The second issue the legislation must take into account is that of conscientious objection which was raised by the Medical Council at yesterday's hearings. This is common international practice. However, it should come with the caveat that the conscientious objection can only arise where another doctor is willing to perform the abortion. A woman's life should not be put in jeopardy because a doctor is unwilling to perform the abortion.

I reiterate that the issue of time limits should not be dealt with in the legislation. The over-riding theme of the legislation should be that we respect the clinical judgment of our doctors. We respect the clinical judgment of our doctors in all other cases and the case of abortion should not be an exception.

I welcome questions from committee members on any aspect of my presentation.