Dr. Ruth Fletcher:

I thank the joint committee for the invitation to present. It occurred to me when passing my alma mater, Trinity College, that I have been teaching and researching in this area for almost 20 years. I am honoured to have this opportunity today.

For someone like me who works in the area of ethics and law the proposed legislation in terms of its recognition of a public obligation to implement an existing constitutional right to life-saving abortion, is welcome. However, it does not do enough to meet the ethical obligation to value women's lives. I will focus my opening remarks on four key points, including the definition of the unborn; the significance of risks under heads 2 to 4 justifying a termination of pregnancy; the limits on the rights to conscientious objection and the inappropriateness of criminalisation.

On the definition of the unborn, head 1 suggests that the unborn should be defined to mean following implantation, drawing onRoche v. Roche concerning frozen embryos as a precedent. With respect, the ethical arguments for choosing the point of implantation as a significant moment for legal protection of human life have not been adequately addressed. Given past failures to interrogate the assumed wrongness of abortion and, given the particular factual context of Roche v. Roche, it is open to this Legislature to consider more fully the criteria by which the unborn should be defined. The best ethical argument available to us from the literature and moral philosophy justifying protection of early forms of unborn life from implantation is that of potential personhood. This is the argument that from its earliest stages, subject to assistance from the pregnant woman, the embryo and foetus will go on to become a person. This future personhood argument does not apply, however, to foetuses with lethal abnormalities. Much to the anguish of their parents, they will die after birth and, therefore, they do not have a future as persons. That ethical argument does not apply in this case. Moreover, the State argued in D. v. Ireland that foetuses with lethal abnormalities could be excluded from the legal and constitutional definition of the unborn. Given that D lost her case before the European Court of Human Rights, partly because this was the argument made by the State and domestic remedies were not exhausted, there is, I would argue, more of a moral obligation on the Legislature to deliver on that argument and to address the definition of the unborn in a way that excludes foetuses with lethal abnormalities.

A second important aspect of this ethical argument for protection of early embryonic life from implantation is that it rests on the potential to become a person rather than on actual personhood. Potential personhood is best regarded as giving early embryonic and foetal life moral value because of what it will become in the future. This potentiality is obviously ethically significant but not as significant as the moral status we give to sentient forms of human life, namely, forms of human life that are developed to the point of feeling pain or pleasure. That is another stage of development with another set of capacities and another level of moral protection is due it. It is also not the same as the higher moral status which comes with full personhood, namely, the capacity to reason, communicate, will and act on our lives. A person's interest in her own bodily and moral integrity may justify limitations on the duty to sentient beings. This is because part of what makes life valuable is the person's ability to reflect on her life over time in particular factual circumstances and to make moral choices in that regard. That is part of what we value about being human.

To sum up, the following categories I would suggest provide a better ethical framework for the protection of unborn human life than does the assumed significance of implantation underpinning the legislation. First, pre-sentient embryonic and foetal life has moral value rather than moral status. It should be taken into account in moral decision-making but in itself does not impose harm-reducing duties on others. Second, sentient foetal life has moral status and may impose a duty on other persons to reduce harm to that sentient foetal life. Third, self aware personhood has a higher moral status than sentient life and this can limit the duties we owe sentient forms of life. They are the three ethical frameworks discussed in literature on medical ethics and law, which I believe will be helpful in informing the debate around protection of unborn life in its early stages.

My recommendation in this regard is that the unborn should be defined so as to exclude those foetuses which have lethal abnormalities and which will not have a future independent life. This possibility is open to the Legislature. It does have the power to do this. Also, the unborn should be defined to mean the foetus following the earliest moment at which sentience is possible.

On heads 2 and 4 and the risk of loss of life that justifies a termination of pregnancy, these heads provide for the kinds of risk to a woman's life which will legally justify a termination of pregnancy under the scheme. Others have commented more eloquently than I can on the need to remove obstacles in life-saving abortion care and on the troubling mistrust of women with suicidal ideation. I would like now to focus on the narrowness of the risk to life ground for termination of pregnancy. This ground has been drawn very narrowly, in part because it is assumed that Article 40.3.3° requires the life of the pregnant woman to be treated the same as the life of the embryo or foetus. Again, turning to ethical moral philosophy and legal theory, equality scholars have long argued that equality does not mean sameness rather ethical treatment requires the accommodation of actual differences between beings of all shapes and forms. Vindicating the life of the unborn with due regard to the equal right to life as directed by Article 40.3.3° should entail a full evaluation of all the interests that the woman's life entails, as well as all the interests of the unborn.

To state the issue concisely, women are conscious, sentient beings with moral viewpoints and responsibilities to other people. Foetuses are not quite that. They are the bearers of biological life and they will be future persons but this is not the same kind of life as that of the breathing, feeling and thinking woman. The current legal test treats women and foetuses as if they are the same, which I argue devalues both forms of life. It does not value their specificity and particularity sufficiently.

In regard to head 12 on conscientious objection, in principle the inclusion of a conscientious objection clause is defensible, subject to two conditions. First, it must be applied to individuals rather than to organisations and, second, it must only be applied in circumstances where alternative provision is available to a woman needing termination of pregnancy. If respecting human life includes respecting the personal choices which give life meaning, obviously health care practitioners may avoid performing health care that infringes their moral values. As the explanatory notes acknowledge, however, conscientious objection is not an absolute interest but is limited by the need to prevent harm to other people, pregnant women in this instance. In circumstances where a health care practitioner cannot arrange alternative provision without undue delay, the right to conscientious objection may be limited by the duty to prevent harm to patients. That is an issue of which we must be mindful in legislating for conscientious objection. This recognition of health care practitioners' consciences is worthy but it is inconsistent with the lack of legal recognition of women's consciences in this context. If conscientious objection to the provision of abortion is legally acceptable, as in head 12, so is an equivalent objection to sustaining the embryo or foetus within one's body. If a woman's conscience tells her that terminating a pregnancy is the best moral resolution of all the complex issues that arise in a particular factual pregnancy, her conscience equally deserves recognition and accommodation.

Turning to head 19 and the new offence proposed to be created by the Bill, the criminalisation of women's decisions to end their pregnancies is a disproportionate and unfair response to the constitutional direction under Article 40.3.3o to vindicate the life of the unborn as far as practicable. It is disproportionate because it does not achieve the end of protecting foetal life. We know that hundreds of thousands of Irish women have had terminations of pregnancy. Criminalisation has not been successful in protecting unborn life. Furthermore, criminalisation as one form of legal regulation makes the situation worse because it stigmatises and punishes those women who find themselves needing to end a pregnancy. In making the situation worse, it also makes health care more difficult to access because, as we have heard, medical practitioners will feel the chilling effect of the criminal law.

The Legislature has other options under Article 40.3.3o. Criminalisation is not a necessary aspect of the Article and other, less punitive options could be pursued, such as regulating the terms on which abortion is accessible or adopting more positive measures to prevent the loss of unborn life through miscarriage by investing in pregnancy related care. In choosing to punish women rather than adopt more neutral or positive measures to support foetal life in pregnancy, the Legislature is acting unfairly because it is asking women rather than the State to bear the weight of the public duty to vindicate foetal life. In respect of the head 19, I agree that sections 58 and 59 of the Offences against the Person Act should be repealed but it would be harmful to adopt this new offence. If the Legislature is not prepared to go the full route of decriminalisation, which is open to it, at minimum the offence needs to be defined in much narrower terms than is currently the case. At present it is expanding the range of actions that could be a criminal offence with the phrase "any act with the intent to destroy unborn human life". This is too broad and may include acts which are ultimately unsuccessful in destroying unborn human life. The maximum penalty of 14 years is extreme and, at the very least, we should consider reducing it given that we are discussing the criminalisation of moral choices by women in difficult situations.