Michael McNamara (Clare, Labour) | Oireachtas source

I thank the Ceann Comhairle for the opportunity to speak on this important issue which, as previous speakers stated, is the most divisive in Irish politics. That is perhaps why successive Governments have done so little for 20 years. The fact that something is difficult is no reason to do nothing. If that were the case, this august Chamber would still be a lecture theatre of the Royal Dublin Society. Instead it is the Parliament of a sovereign state. I welcome the commitment of the Minister for Health and the Minister for Justice and Equality to legislate in the area. I was nine years of age when the eighth amendment to the Constitution was made. I was 18 years old, and about to become a law student, when the Supreme Court decided on the X case. It involved a 14 year old girl who had become pregnant as a result of rape and, as a result, was suicidal. I will reiterate what the Chief Justice stated in that case because there has been a great deal of obfuscation: "I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3 of the Constitution." Considering that a suicide risk had to be taken into account in reconciling the right to life of the mother and the unborn, the Chief Justice continued: "I am, therefore, satisfied that on the evidence [it has been] established, as a matter of probability, that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by termination of her pregnancy." Similar judgments were delivered by three of the other four judges, with Mr. Justice McCarthy noting pertinently "The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery." He concluded: "On the facts of the case, which are not in contest, I am wholly satisfied that a real and substantial risk that the girl might take her own life was established; it follows that she should not be prevented from having a medical termination of pregnancy."

In that same year, 1992, a proposed 12th amendment, which would have excluded the threat of suicide from justifying an abortion, was defeated by the Irish people. Some ten years elapsed and nothing was done by the House. In 2002, the 25th amendment to the Constitution Bill also proposed to remove the threat of suicide as a grounds for legal abortion. That was rejected by the Irish people. A further ten years elapsed and this august Chamber did nothing. Less than a week before the second anniversary of the judgment of the European Court of Human Rights into the A, B and C v. Ireland, we are discussing the report of the expert group set up to examine the judgment.

That is the legal context or, rather, the absence of a legal context in which the A, B and C v. Ireland case was decided. As a result, girls born in the same year as me and women who went to college in the same year as me spent their entire lives subject to what is described in the European Court of Human Rights judgment as the chilling effect of the criminal law provisions in the 1861 Act, which have an impact on women and doctors during a medical consultation because of the risk to both parties of criminal conviction and imprisonment. The UN Special Rapporteur on health and the UN Committee Against Torture have also commented on the effect of criminal laws that have an impact on the health of women. When discussing the Bill tabled by Deputy Clare Daly, which he acknowledged was well-intentioned but substantially defective, the Minister for Justice and Equality, Deputy Shatter, commented that her Bill failed to deal adequately with sections 58 and 59 of the Offences Against the Person Act. In recent weeks, the Act has placed doctors in an impossible position, as alluded to in the European Court of Human Rights judgment.

I have heard such claims from medical doctors who work in obstetrics. The master of the National Maternity Hospital at Holles Street called for more guidance to deal with the grey area that arises in cases where there has been a risk to the mother's life, and a consultant in emergency medicine, Dr. Patrick Plunkett, called for legislation to clarify when doctors can intervene and terminate a pregnancy in a bid to protect the mother's life. Therefore, I welcome the Government's commitment to bring forward legislation to bring clarity in that area.

That, however, is not the end of successive Governments' failures to legislate in this complex area. Some Deputies have said marriage is primarily about children, its main purpose being to propagate. While I disagree with that, an increasing number of couples find it difficult to propagate. They find it difficult to conceive a child and, as a result, resort to IVF and assisted reproductive methods. One of the undeniable consequences of that is an increase in the number of frozen embryos, again a matter for which the House has failed to legislate. In Rochev. Roche and others, it fell to the Supreme Court to decide whether a frozen embryo was human life within the meaning of Article 40.3.3°. The Chief Justice, Mr. Justice Murray, said:

I do not consider that it is for a Court of law, faced with the most divergent if most learned views in the discourses available to it from the disciplines referred to, to pronounce on the truth of when human life begins.

It is important to recall that the European Court of Human Rights came to the same conclusion in the A, B and C case, that is, that there is no consensus in Europe as to when human life begins and that protection for that human life and the decision as to the moment it begins falls to member states to adjudicate. This State has singularly failed to decide when human life begins and when the protection of human life begins in accordance with Article 40.3.3°. The Supreme Court, in the case of Roche v. Roche and others, decided that frozen embryos did not attract the protection of Article 40.3.3°. Mr. Justice Hardiman stated:

But the fact that difficulties are raised does not absolve the legislature from the obligation to consider the degree of respect due to fertilised embryos and to act upon such consideration “by its laws”. There has been a marked reluctance on the part of the legislature actually to legislate on these issues: the Court simply draws attention to this. That is all it can do. That is what McCarthy J. did, apparently in vain, in the X case eighteen years ago. But the Court does so as seriously and as urgently as it can.

Another anomaly in Irish law concerns the 2007 case of Ms D, a minor, which was also considered by the European Court in the A, B and C case. Ms D was a minor in HSE care who had been prevented from going abroad for an abortion. Her foetus had been diagnosed with anencephaly, a condition where a major part of the brain is missing. The diagnosis was accepted as being incompatible with life outside the womb. The High Court clarified that the case was not about abortion or termination of pregnancy but about the right to travel, admittedly for the purpose of a pregnancy termination. I happened to be in court on other business the morning Ms D applied to the court. I recall her standing towards the back of a crowded court room full of bewigged and begowned barristers and solicitors as her medical details were read out to the crowded courtroom. Women with a medical condition such as hers should not be dragged into court to outline the most intimate medical details to a crowded courtroom.

In the A, B and C case, the European Court of Human Rights considered it evident that travelling abroad for an abortion constituted a significant psychological burden on each applicant but concluded there had been no violation of the convention as regards the first and second applicants. In general terms, the court affirmed that it does not consider that the prohibition in Ireland of abortion for health and well-being reasons exceeds the margin of appreciation accorded in that respect to the Irish State.

Nevertheless, it is high time the Legislature decided what exactly constitutes the unborn who attract the protection of Article 40.3.3°, aside from the A, B and C and X cases. Does it include frozen embryos? If not, when will this Legislature legislate for that? Does it include a foetus that is diagnosed with a condition that is incompatible with life outside the womb? For the avoidance of doubt, because I am clear this issue is emotive and that every word every politician says on it is likely to be skewed, I am not talking about diagnoses of an illness or disability. I am talking about a diagnosis where it is found that the foetus is incompatible with life. Does that foetus enjoy the protection of the right to life?

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