Micheál Martin (Cork South Central, Fianna Fail) | Oireachtas source

I welcome the holding of this debate and the opportunity to address the report of the expert group. It is appropriate that time is allowed for legislators, medical bodies and the wider public to consider the issues raised in the report in advance of the consideration of specific measures. In the modern world there are few more passionately debated and divisive topics as abortion.

Ireland is very far from being the only state where there is an active debate about abortion. It is an issue which can cross through ideological and party boundaries like almost no other.

There are many people on different sides who operate with an absolute certainty as to how they believe the issue should be handled. Often this leads them to dismiss the sincerity of those who do not share their certainty. There is also a small minority which takes quite an extreme approach – a fact well known to many Deputies and Ministers over the years who have experienced highly intimidatory tactics directed against them in their constituencies. I hope that in this debate Deputies will show respect for the sincerity of each other’s views and not seek out ways to caricature those with whom they disagree.

This report was due out last July but the group asked for more time and presented it to the Minister, Deputy Reilly, in the middle of November at the time when the sudden death of Savita Halappanavar was coming to national and international attention. There has been an absolutely appropriate wave of shock among the Irish people about Savita’s tragic death, and our profound sympathy is with Praveen and the Halappanavar family. None of us in this House knows the full facts of what happened. Two reports are being prepared, and the Government has said that it may consider an independent inquiry. It is still not too late for the Government to recognise the exceptional nature of this case and to move to immediately establish such an inquiry.

Many people have automatically blamed the lack of legislation for Savita Halappanavar’s death. Nobody is in the position to claim that without seeing detailed final reports from medical experts and the outcomes of the inquiries. Unfortunately, there have been other individuals who have also had tragic stories, and that includes the women who are known as A, B, and C. These women as a group lodged a complaint to the European Court of Human Rights alleging that restrictions on abortion in Ireland were in breach of their human rights. These were women who according to the report "became unintentionally pregnant and who travelled to the UK for abortions". The Irish Family Planning Association, IFPA, supported the women who took the case.

"A" was a mother of four who lived in poverty and whose children were already in care. She was trying to reunite her family. She became pregnant accidentally and travelled to the UK for an abortion. "B" was a single woman who became pregnant when emergency contraception failed. She believed she could not care for her child and travelled to the UK for an abortion. "C" had been treated for cancer and had been in remission when she accidentally became pregnant. She was unable to get clear medical advice as to the effect of the pregnancy on her health-life and was very worried that the cancer would return. She decided to travel to the UK for an abortion.

As Deputies will know, while there have been Private Members' Bills, I was the last Minister, and indeed the only Minister, to introduce legislation relating to the X case. The indication, therefore, that nothing occurred in the past 20 years is not factual. Quite a lot occurred at different periods. That proposal was rejected by the people but no one can claim that, as a decision, the result clarified the matter. The "No" side on that occasion included arguments that the proposal was too liberal as well as not liberal enough.

If the Minister believes that there should be no restrictions whatsoever on abortion, then obviously deciding on a response to the A, B and C v. Ireland judgment is not difficult for him. The same goes for those who believe there are no difficult cases and that a simple ban is all that is required. My position is that I do not believe in the provision of general access to abortion in the way that it is available in many other countries. I do not see this as in any way a conservative or outdated view. A growing respect for life is perhaps the greatest achievement of the modern age and it should extend to the unborn.

When woman are pregnant they should have no less protection for their life, and it should be the duty of the medical profession to ensure that their lives are protected. According to the Supreme Court, this principle is reflected in our laws but the question is whether it is reflected in such a way as to give certainty to doctors and patients alike. The answer to that has been found to be "No" by the European Court of Human Rights.

Public opinion has moved over the years, but no one can say that it is clear. In fact, it may be more confused now than at any point in the past 30 years. As the poll published on Sunday shows, a substantial minority, although still a minority, believes in allowing for wide access to abortion. In contrast, two thirds favour it being more restrictive. The poll showed strong majorities in favour of each of the options of maintaining, restricting and going beyond the X case ruling.

It is also not true that this is an issue where people divide along gender lines in their opinions. There is little difference between men and women in their opinions on the main choices, with women slightly more against the introduction of widely available access to abortion. Nobody in this House has the right to claim that they know for sure that their position has the support of the public, except to say that a consistent and strong majority of the public wants there to be no doubt that the life of a pregnant woman must always be protected.

It is a myth that nothing has been done on the issue over the past 20 years. The expert group report gives a detailed account of what has occurred in the past 20 years. It is true that this issue has not been resolved, but it is untrue to say that no one has done anything.

In the X case of 1992 a majority of the Supreme Court members held that if it were established as a matter of probability that there was a real risk to the life as distinct from the health of the mother, and that this real and substantiated risk could only be averted by the termination of the pregnancy, such a termination was lawful. The stated risk to the mother’s life in that case arose because she had threatened to commit suicide if she had to continue with the pregnancy. In the 1992 referendum two amendments were carried to allow for information and the right to travel, but people voted against the exclusion of suicide as being a reason for abortion.

In November 1997 there was a ruling on the C case. This involved a raped pregnant teenager who was allowed to travel for an abortion. At that time the Government decided to produce a Green Paper on abortion and that was published in September 1999. That was then considered by an all-party Oireachtas committee chaired by the late Brian Lenihan Over 100,000 submissions were received by the committee which held hearings from all the various groups and published a report in November 2000. Subsequently, there was a referendum on both a text for the Constitution and a supporting legal framework to allow medical practitioners intervene to save the life of the mother where there was a "real and substantial risk of loss to the woman’s life other than self-destruction".

It also included repealing sections 58 and 59 of the Offences against the Person Act 1861. That Bill outlined that the doctors had to be registered medical practitioners. The procedures would have to take place in approved licensed hospitals to prevent clinics being introduced in Ireland. A section of it dealt with conscientious objection at the request of the medical profession. The then Government thought this was a moderate proposal that excluded suicide being a reason for requesting abortion and it was rejected by the people by only 10,000 votes.

As I mentioned earlier, there was no single reason for the proposal being rejected as it was voted against by groups who held diametrically opposed views. It was fully acknowledged that a wider response was required, including providing key support services for women. As Minister for Health and Children at that time, I established the Crisis Pregnancy Agency to assist women who found themselves in a crisis pregnancy. It did widely acknowledged positive work in educating people on how to avoid crisis pregnancy, and in supporting organisations that worked with women, but also advised and counselled women. There was a reduction in the number of women who travelled to the UK as a result. Over a decade, the number of women who travelled to the UK fell by nearly 40%. In addition, regulations were enacted to allow the morning after pill to be available over the counter to allow women buy that in pharmacies across the country if required.

Ireland is not a country which ignores the interests of pregnant women. Ireland has one of the lowest incidence of maternal deaths in the world. That is something we should acknowledge, be proud of and always strive to improve upon.

In addressing this report I am conscious of the attitudes of the medical profession. Whatever we do here, it is the medical profession that will be responsible for dealing with specific cases. Members of the profession, and predominantly the Institute of Obstetricians & Gynaecologists, are now requesting a proper legal framework to allow abortion in limited circumstances where there is an emergency and where the life of the mother is in danger. They are also considering the expert group report recommendations this week, and I hope they will make their views and preferences known.

It is not the case that there is no guidance at all available at present and that there is a deep uncertainty in all cases. Doctors follow the Medical Council guidelines that were most recently updated in 2009. Section 21.1 states:

Abortion is illegal in Ireland except where there is real and substantial risk to the life (as distinct from the health ) of the mother. Under current legal precedent, the exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide. You should undertake a full assessment of any such risk in light of clinical research on this issue.

Section 21.4 states:

In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby.

These guidelines could provide the basis for bringing certainty and clarity to Ireland’s response to the European Court of Human Rights, ECHR, judgment. The ECHR judgment and the expert group outlined their reservations about only having guidelines as it opened up the possibility of “criminal conviction and imprisonment”. While there were advantages to the guidance documents, they concluded that the legal uncertainty arising from the 1861 Act could be subject to legal challenge. Under 7.4.3, the report outlines approaching this issue by introducing the ability of the Minister of Health to issue regulations by legislation: “The Oireachtas would provide the principles and policies and the enacting legislation would give the Minister the powers to issue such regulations.” The Minister spoke of four options but placed heavy emphasis on paragraph 7.4.3, which states this approach would satisfy the requirements of the implementation process of the judgment in the A, B and C v. Ireland case. It adds that “the advantages of this option are... it provides for appropriate checks and balances between the powers of the legislature and the executive, and would be amenable to changes that might arise out of clinical practice and scientific advances.” The expert group report goes through advantages and disadvantages of various scenarios involving legislation on its own or legislation with regulation. It also outlines the scenarios of both repealing or updating the 1861 Act by replacing it fully or retaining the Act but amending it by legislation providing for the judgment in the X case.

The preference is to change the 1861 Act as there is a lacuna in protecting the life of the unborn and, according to the report, “under Irish law, currently, the life of a baby who is in the process of being delivered is not clearly protected under the offence of murder or the offence of abortion”. There is no doubt the expert group did a thorough synopsis of what options are there to enable the Government and the Oireachtas to respond to the A, B and C v . Ireland judgment. I acknowledge this and thank the group for its work.

In his introduction to the report, Mr. Justice Seán Ryan wrote:

Abortion is a difficult painful issue in this country and elsewhere.[...] Intense ethical, religious, social political and intimate personal issues coincide.

The public wants to ensure women who are pregnant receive the best hospital services possible and do not want women’s lives to be put at risk in the absence of a legal framework. The people have already been consulted twice on excluding suicide and have rejected the proposals. I do not believe the Irish public envisages abortion clinics being available in Ireland and the contradictions in the RED C poll show this. Wrestling with our consciences should not delay us doing what is required. There needs to be certainty in whatever framework is decided to allow the medical profession to use professional judgment in emergency situations to save women’s lives. It is important for the House to remember Mr. Justice Ryan’s comments in the expert group report when he stated:

The group consisted of people with expertise in the medical, legal and administrative fields and that obviously it is not possible for us to adjudicate on legal or medical controversies and it is absolutely not our business to try to decide political controversies. The members of the group who are doctors are not settling legal issues; the lawyers are not deciding medical controversies and the administrators are not adjudicating on the medical or legal questions.

As legislators, we have a responsibility to consider in full the options that were laid out in the expert group report. We have a responsibility to address the issue in an honest way. We must take on board all of the expert advice. When the Government outline its response, we should listen to the rationale and engage as constructively as possible with our responses.

On page 25, paragraph 4.7 of the report, the implications of Ireland’s obligations are outlined:

Arising from the judgement, Ireland is under a legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether or not they are entitled to a lawful abortion in accordance with Article 40.3.3 of the Constitution as interpreted by the Supreme Court in the X case, and by necessary implication access to abortion services in the State. It would be insufficient for the State to interpret the Court’s judgement as requiring only a procedure to establish entitlement to termination without also giving access to such necessary treatment.

The Taoiseach has said he would not be rushed into responding to the report. The Tánaiste and the Minister for Health, Deputy Reilly, are on record as saying there will be a legislative response to meet the recommendations of the expert group report and this will be made known before Christmas and debated at the Joint Committee on Health and Children in the second week of January. I presume the Institute of Obstetricians & Gynaecologists will publish its submission on its preferred option so there can be no doubt about the safety of women’s lives in Ireland’s maternity hospitals. As part of the response from Government, it should outline whether the Medical Council has been consulted and whether it is satisfied with the Government’s proposals. The medical profession must be fully satisfied with what is being proposed as it will be faced with taking decisions in individual cases. We need to be sensible about this issue and not try to score political points.

The Fianna Fáil Party believes clarity and certainty needs to be brought to this sensitive issue. We will be consulting members and considering our approach to the report over the coming weeks. We will be constructive and will fully partake in the debate both in the Chamber and at committee level.

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