Ms Maria Steen:

I would like to address the question raised by Senator Healy Eames regarding obstetricians and whether the 1861 Act is legally adequate to preserve life and offer flexibility. The question of what constitutes a substantial risk was raised by the master of the National Maternity Hospital during the course of the hearings. The legal test at present is whether there is a real and substantial risk to the mother. It should be borne in mind that the law is not capable of reducing the assessment of risk to a statistical risk and, indeed, it would be dangerous to do so for doctors and, obviously, for women and their babies. The assessment of risk has to be carried out by a clinician in light of his or her knowledge of the circumstances of the particular patient presenting. The test requires that the risk be real, not hypothetical, and substantial, not insubstantial or trivial. Subject to these requirements, the test affords considerable flexibility to doctors. It is a simple test and it is left to the doctor acting in good faith to judge the situation. This flexibility is demonstrated by the absence of prosecutions under the 1861 Act. There is, however, a significant rider to the effect that the termination must be the only means of saving the life of the woman. That is important to remember as legislators. Furthermore, under Irish law the unborn child is recognised as having an equal right to life to that of the mother and the vindication of that right requires that no effort should be spared to save the life of the baby without endangering the life of the mother.

In regard to the X case, the Supreme Court was constrained by the particular facts presented. The State did not present countervailing evidence and the court was not free to ask for further evidence of its own volition. The Oireachtas is not so constrained and in light the amount of information that has been published, including the international studies rehearsed by other speakers, about the increase in risk of suicide following an abortion relative to the increase in risk from giving birth, it is important that the Oireachtas does not confine its deliberation to the terms of the X case alone.