Ms Jennifer Schweppe:

Some of the questions overlap but I will deal with the issues as they arose. On the question of fatal foetal abnormalities, which was raised by Deputy Kelleher, my position on this, and I think I am correct in stating that in law, where the foetus has no capacity to survive outside the womb, that is not life for the purposes of Article 40.3.3°. When we refer to unborn life in the Constitution, what we are talking about, as the then Mrs. Justice Denham, now the Chief Justice, stated in the Roche v. Roche case, we are referring to a life which has the capacity to be born. In that case it related to embryos that were implanted in the womb. I think the logic of her reasoning on what the Constitution protects and does not protect applies to foetuses which have no capacity to be brought to term and produce a living baby. I do not think that Article 40.3.3° applies in that case. Perhaps as a matter of clarity the legislation should in a declaratory manner state that. I do not think we need a constitutional amendment where as a matter of probability doctors are of the opinion that the foetus has no capacity to be born.

I think that is the legal situation in that case, but the problem arises where doctors are of the opinion the foetus has the capacity to be born but will survive only for a short period, be it a matter of days or weeks. Tragically, in circumstances such as the that, the Constitution does not permit termination of pregnancy and, unfortunately, women in that position do currently need to travel to terminate those pregnancies. I do not agree with this position. I did not see the programme "Tonight with Vincent Browne" last night but I think a constitutional amendment would be required in those cases, where there is a prospect of life outside the womb and the pregnancy is viable. In cases of inevitable miscarriage, as Dr. Mills talked about, or where the foetus has no capacity to be born alive, I do not think a constitutional amendment is needed. I think the legislation should include a declaratory statement to that effect and permit medical practitioners to terminate pregnancies in those circumstances. I hope that answers the question.

Deputy Ó Caoláin's first question related to refusal of treatment. As an academic, I like to think of all eventualities. That is something I include because the debate assumes that where there is a risk to the life of a woman, she will want to terminate her pregnancy. That is not necessarily always the case. I wanted to highlight the fact that some women will acknowledge that their life is at risk but will want to continue with the pregnancy and would like the medical practitioners involved in their case to try to see the pregnancy through to term. The only exception, as I see it, to the general position, which is a general position in law and does not just apply in the context of termination of pregnancy but arises in other cases, is in cases in which the woman does not have the capacity to refuse the treatment. The Fitzpatrick case would be a narrow exception to that. Again I suggest the Law Reform Commission's recommendations in relation to capacity for vulnerable people generally and for people altogether should be adopted in that context. That is my position and reflects common medical practice. I do not think we need to do anything new there.

On the issue of the link between suicide and pregnancy, I wholeheartedly agree with Ms Staunton's position. Just because one is suicidal in pregnancy does not justify a termination. The threat of suicide must be linked to the pregnancy and I fully adopt her position on that.

Deputy Conway raised the issue of fatal foetal abnormalities. In relation to consent of young people generally, the Law Reform Commission has published a report and I commend it to the committee. It is very detailed and sets out the legal issues exactly and recommends very robust legislation for dealing with them. Quite simply, in relation to 16 and 17 year olds, there seems to be a presumption currently in section 23 of the Non-Fatal Offences Against the Person Act 1997 that a 16 or 17 year old can consent to medical treatment in the absence of parental consent but it would appear that section 23 provides a defence to a doctor only in the case of criminal sanctions as opposed to civil sanctions. For those under the 16 years, there is a presumption against treatment in the absence of parental consent. I think this is an issue which needs to be addressed. I refer to a paper by McMahon et al where they talk about the utter confusion of GPs as to whether they can treat somebody under the age of 16 years for anything. Again this does not necessarily relate to this issue. For example, it could apply to whether a doctor can treat a 15 year old for a broken leg in the absence of parental consent. The Law Reform Commission's proposals are very clear on this issue.

When it comes to children in care, the Deputy is correct that this issue deserves more attention. These young people are, by definition, vulnerable and are treated in law very differently from children who are in the care of their parents. A child in the care of her parents can be brought to another jurisdiction to terminate an unconstitutional pregnancy. Children in the care of the HSE cannot, according to the decision of Mr. Justice Geoghegan in the C case, although the decision of Mr. Justice McKechnie in the D case does seem to throw a little bit of confusion into that entire issue. I think that needs to be teased out.

The final Deputy asked about the current legal position.