Gerry Adams (Louth, Sinn Fein) | Oireachtas source

The issue of abortion and the failure of successive Governments to legislate for the Supreme Court decision in the X case has come centre stage in recent weeks due to the tragic death of Savita Halappanavar in Galway University Hospital on 28 October. Her tragic death did not come to public attention until nearly three weeks later. By a remarkable coincidence, the report we are discussing landed on the Minister's desk the evening before the story broke publicly. Since the tragic death of Savita there has been an outpouring of grief for and solidarity with her family from across the country and across the globe. Once again, I extend my sincere condolences to Savita's husband, Praveen, and her family on their loss. It is a shame it took this tragic death to refocus minds on the need to deal with the outworking of the X case judgment 20 years after it was made. Two weeks ago, Sinn Féin tabled a Private Members' motion seeking the publication of this expert report and a commitment from the Government to introduce legislation in line with Supreme Court judgment in the X case. The Government should have published the report but I hope the report will spur the Minister to do what successive Governments have failed to do for the past 20 years, which is to introduce legislation in the area.

Sinn Féin supports the introduction of legislation in line with the X case, as well as in circumstances of rape and incest. I welcome indications from the Government that it will set out how it plans to proceed on the issue before Christmas. The expert group was established in early 2010 in response to the European Court of Human Rights decision in the A,B and C v. Ireland case in December 2009. The terms of reference of the group were to provide a range of options as to how the judgment was to be implemented in Irish law. In the report, the expert group offers a range of options.  In our view it would have been preferable if it had been allowed to make recommendations, so we would not have to read between the lines to see what options the group may favour. It would be useful if the authors of the report were available to address the Joint Committee on Health and Children in the New Year and to answer questions.

In all of this we need to remember that real women are affected by this grey area in Irish law. These are not letters in an alphabet or statistics. One of these is Ms C, who brought Ireland to the European Court of Human Rights. The court found that her constitutional rights had been violated. Ms C had cancer for which she had been treated with chemotherapy for three years. She had wanted children but her doctor had advised her that a foetus could be damaged by the ongoing chemotherapy. She became pregnant at a time when the cancer was in remission. She was unable to get clear advice from her GP as to the effect the pregnancy would have on her life or health or about the effect any further medical treatment would have on her baby. She was reduced to consulting the Internet and eventually decided to travel to England for an abortion. It is simply unacceptable in this day and age that a pregnant woman, suffering from a life threatening illness like cancer, is left in a medical and legal grey area where she has to surf the net to make these decisions. One can only imagine the trauma and stress this citizen suffered. It is wrong and we, as legislators, can and should do something about it.

The court in Strasbourg held that there was no accessible and effective procedure to enable this citizen to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law. The European Court found that the failure of successive Governments to legislate on this issue violated this woman’s rights. No more women should be left in these grey areas where their lives are at stake. Any legislation being brought forward by the Government, in line with the X case, would be very restrictive. The expert report points to the Supreme Court judgment in the X case which said that a termination of pregnancy was permissible if it was established as a matter of probability that “There is a real and substantial risk to the life of the mother; and this risk can only be averted by the termination of her pregnancy”. These are the tests to be applied if a termination is to be lawful.

The X case ruling and any legislation arising from it do not comprise a formula for a liberal abortion regime. Sinn Féin is not in favour of abortion. We are talking about a right to a termination in very limited circumstances where a woman’s life is at risk and where this is the only way to save that life. The expert report outlines a number of options for Government on how best to implement the judgment in the A, B and C v. Ireland case and to bring legal clarity for pregnant women and medical professionals. Sinn Féin favours the option of legislation plus regulations as being the most appropriate.

In relation to the other range of options put forward, the Government needs to strike the right balance between the need for speedy interventions where a woman's life is at risk and ensuring the highest possible standards. A careful balance will have to be struck between making legislation too prescriptive and leaving too much to be dealt with by regulation. There is also a requirement to deal with what the report describes as the chilling effect of the Offences Against the Person Act 1861. This is a 150 year old English Victorian statute. The 1861 Act leaves both women and doctors open to criminal prosecution. It fails to provide any protections for the right to life of a woman whose life is at risk due to her pregnancy. The expert report also sets out a number of options for making clinical decisions on whether a woman’s life is at risk. These options need to be considered to ensure the correct balance is struck between ensuring the required safeguards are in place and making allowance for speedy action in the case of emergencies.

The people spoke in two referendums in 1992 and 2002 and firmly placed responsibility on the Oireachtas to deal with this issue by means of legislation. In his remarks to the Dáil last April, the Minister for Health acknowledged that no action had been taken by six successive Governments and he did not want this Government to be the seventh. The Government needs to move beyond rhetoric. Sinn Féin has made its position absolutely clear, having debated it as recently as at our Ard-Fheis in May. We believe all possible means of education and support should be put in place in order that the difficult choice to terminate a pregnancy can be avoided by as many women as possible. We are against any attempt to criminalise or to be judgmental of women who have had abortions. No woman wants to be in such a position. The women like Savita, Ms C or, 20 years ago, Ms X is could have been my mother, wife, sister, aunt or any of my women friends. It is time for legislation to be enacted that will protect the rights of these women, as decided by the Supreme Court in 1992.

The publication of this report is a vital step along this road, but it cannot be allowed to gather dust as so many other reports did down the years. One of the striking things about the expert report is the litany of bureaucratic delay in the 20 years since the X case. The people in 1992 rejected a referendum which would have rolled back the X case and exclude suicide as a ground for a lawful abortion. There was the constitutional review group report in 1996 which recommended legislation. Nothing was done. A Cabinet committee was set up to draft a Green Paper on abortion which proposed seven options and was published in 1999. It received 10,000 submissions. The Green Paper was referred to the All Party Oireachtas Committee on the Constitution which reported, giving three options. This report was then forwarded to another ministerial sub-committee from which nothing emerged.

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