Ms Mary O'Toole:

I propose to address the questions that were specifically addressed to me. Regarding the repeal, amend or delete front, my colleagues have outlined pretty extensively to the committee what the implications of each of those courses are. The difficulty is the uncertainty created by simple deletion. One will simply never get certainty. There is no single legal provision anywhere where one could say with certainty what it means but there are degrees of uncertainty. This is an area where, primarily, women at the centre of the difficulties need to understand in a very time-sensitive way what their rights are and how they can be accessed, they need to be able to take advice and it needs to be clear. That kind of certainty is very valuable. Having said all that, it seems that trying to put complex provisions into the Constitution is simply impossible and makes it very difficult. One is trying to get very complex ideas into a couple of sentences and it is very difficult to do this. The eighth amendment is a very good example of that because at the time it was passed, there were opinions about what it meant and what its effects were which were not borne out over time. It ended up meaning something different to what a lot of the people who voted on the issue thought it meant. It is that kind of thing that causes difficulties on a practical level. There is merit in having a degree of clarity so that it is clear that any pre-existing rights are governable by the Oireachtas and everybody knows where they stand but that is a matter for the committee as what exactly it wants to achieve and how it achieves it.

In terms of the amendment and other cases that have arisen that have nothing to do with abortion rights as such, it is true to say that the existence of the amendment has meant that other aspects of care for women have been captured within the remit of the amendment. In particular, we saw the PP v.HSE case where a woman who was deceased and was pregnant was in circumstances where her body was being kept alive in order to keep the foetus alive. In that case, the High Court held that this situation did engage the eighth amendment and that there was a right to life of the unborn in those circumstances - not one that had to be balanced against the right to life of the mother because the mother was deceased but a right to life. The medical evidence in that case was unanimous to the effect that there was a high probability that the child would not survive until term; the fact that the mother had died at the point in the pregnancy, which was about 15 weeks at the date of her death, meant that the prospects for getting the foetus to a stage where it was viable was probably nil; and the mother's system was collapsing. In other words, the clinicians who were involved could not apply ordinary principles of clinical practice to the circumstances in which they found themselves because they were very concerned that if they did so, they would be in breach of constitutional rights and possibly behaving unlawfully because their circumstances were unclear.

This is an aspect of the amendment that is not covered by the recent legislation, which simply covers how one balances the test in the X case or provides a mechanism for accessing an answer about whether or not somebody is entitled to an abortion in this jurisdiction. It does not deal with the other issues that might arise. Of course, the eighth amendment has also been used in other circumstances to suggest an unborn child has certain immigration rights that must be taken into account by the courts and that a frozen embryo has a right to life. The Supreme Court held that a frozen embryo does not fall within the provisions of the amendment - least in the circumstances that pertained in the Roche case. The eighth amendment was mentioned in the arguments in the MR & Anor v. An tArd Chláraitheoir & Ors case concerning surrogacy where the issue was whether the woman who bore the child was to be considered the legal mother of the child. The terms of the eighth amendment were relied on to suggest that this is what that provision requires - again, not the basis upon which the court made its decision in MR & Anor v. An tArd Chláraitheoir & Ors. The wording of the eighth amendment has had a lot of unexpected consequences and that is one of the difficulties about amending and replacing wording. One must bear in mind that it can have consequences that may not have been intended.