Mr. Paul Brady:

Senator Bacik's point goes the essence of one of the points I am trying to make in as far as I respectfully disagree with the Senator that we are required to legislate for the X case by reason of the A, B and C v. Ireland decision. I do not think that is an accurate reading of the A, B and C v. Ireland. I have put into my written submissions detailed references to some of the jurisprudence of the ECHR regarding the implementation of its decisions.

A decision of the ECHR is primarily a declaratory judgment, it is not like a judgment in a domestic court, which generally gives a declaration as to who wins and states what the losing side must do about that. Unless it is under a pilot scheme judgment, which was not the case in A, B and C v. Ireland, the court is declaratory. That discretion of a contracting member state to implement a decision is increased when it comes to the implementation of a positive obligation. The breach in A, B and C v. Ireland was a breach of the positive obligation on the State towards the third applicant under Article 8, not a negative obligation, to facilitate accessible and effective procedures to a woman in the situation of Ms C. When implementing a decision regarding a breach of positive obligations, there is an even greater area of discretion. That has been played down in how these matters have progressed.

This leads to the second point raised by Deputy Naughten regarding my view as to how, in the case of head 4, a termination of the life of the unborn as opposed to the pregnancy, could occur after viability. This comes down to the application of the test of real and substantial risk beyond physiological conditions. In the case of a medical condition arising due to a physical aspect of the pregnancy, there will be a distinction between terminating the pregnancy and terminating the life of the child in that the death of the unborn child itself will avail nothing. It may well be, however, that it occurs in the context of a procedure designed to assist the woman, whereas in the case of suicidal ideation or intent, as proposed under head 4, it is conceivable that the refusal of an abortion itself may be the cause of suicidality. That was a possibility canvassed by many of the psychiatrists. In those situations, to say that we will induce an early delivery is not responding to the threat to the life from suicidality on the grounds of that pregnancy. The requirement in the Bill to have due regard to human life as far as practicable was also the test the Supreme Court was applying when it allowed for a direct termination of the life of the unborn on the grounds of suicidality. It is not safe to assume that simply because at the moment best practice is not to do anything post viability that would directly end a life, that will continue under head 4. I do not think head 4 requires that at all.

To go back to the significance of the conceded point made by Deputy Doherty, Mr. Justice McCarthy, who other members referred to, in the course of the X case judgment himself at page 77 of the report referred to an earlier decision of SPUC v. Coogan and said he disagreed with that decision. He was in the minority because he did not consider the point to have been decided in an earlier case which the court was referring to. He applied the doctrine I raised, that an unargued point is not a decided point and is only binding for the case. It leaves room for action, therefore, if the will be there. That is not my business, but it is my business to point out if an artificial constraint has been put upon a person when that person is in fact free to make decisions.