Michael McNamara (Clare, Labour) | Oireachtas source

I agree with much of what Deputy Catherine Murphy said, especially her condemnation of the antics of the group that parked its van outside the Dublin Rape Crisis Centre.

It is a tragedy when an expectant mother forms the belief that she cannot carry a pregnancy through to fruition to give birth to a life. The right to life is the most basic of human rights that this and every State must vindicate. Equally, only a State with a blatant disregard for human rights, such as some kind of warped theocracy, would seek to hold expectant mothers as prisoners of their pregnancies. The fact that for 20 years since the X case judgement this Legislature has refused to address the reality that thousands of Irish women have decided to terminate their pregnancies and have travelled to the UK and other jurisdictions to have this procedure, and continue to do so to this day, is an indictment of this House and our entire body politic.

Eighty-three women who received abortions in England and Wales in 2011 gave home addresses in County Clare. It is reasonable to assume that many women from Clare did not give their real addresses and that many others received abortions in jurisdictions other than England and Wales.

In the first of three referenda on this issue in 1983, Article 40.3.3⁰of the Irish Constitution was inserted by the Eighth Amendment of the Constitution:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Subsequent referenda established the right to travel for the purposes of a termination and the right to receive information about such services abroad and crucially, for the purposes of this legislation, rejected a Bill which removed as a ground for the termination of pregnancy a real and substantial risk to the life of the mother by self-destruction. Such had been the finding of the Supreme Court in the X case. In that case, Mr. Justice McCarthy noted:

[T]he 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 that] 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.

Those are the parameters within which this House must legislate. Both Government parties agreed to examine the decision of the European Court of Human Rights in the A, B and C case, in advance of the last election. Indeed, Ireland like every other state which is a party to the convention on human rights, undertakes to abide by the final judgment of the Court in any case to which it is a party. In the A, B and C case, it was affirmed:

[T]he Court 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

However, the Court concluded that the Irish authorities had failed to respect the private life of the third applicant by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland in accordance with the Irish Constitution. In seeking to provide that clarity, I am concerned that the Protection of Life during Pregnancy Bill, as it currently stands, may not adhere to adhere to the Constitution. When sections 7, 8 and 9 are read in conjunction with section 22, there appears to be no duty of care to preserve the life of the unborn as far as is practicable when carrying out necessary medical procedures in respect of a pregnant woman and, as a result, the Bill may be found to be unconstitutional.

I am aware that in carrying out a medical procedure referred to in sections 7, 8 or 9, a reasonable opinion must be formed and that opinion must be formed having regard to the need to preserve human life as far as practicable, that the risk to the life of the mother can only be averted by carrying out the medical procedure. However, while carrying out that medical procedure, it would appear that the Bill as currently drafted would permit the intentional killing of the foetus even if it might otherwise survive the procedure. I do not believe that to be the intention of the Bill, nor do I believe that it would be constitutional to legislate in that manner and I look forward to clarification from the Minister on this crucial matter before the Bill passes through these Houses. The last thing we need, 21 years after the X case, is for this Bill to be referred to the Supreme Court and found to be unconstitutional. It is a virtual certainty that the constitutionality of this Bill will be tested, either through a referral from the President, or otherwise.

The second matter I wish to raise is the Taoiseach's suggestion to the Dáil that it is not permissible under the Constitution to include in this legislation a provision for abortion in cases of fatal foetal abnormality. However, in the case of D vIreland, another European Court of Human Rights case, decided in June 2006, the Government of Ireland presented a very different story to the Court. In that case D, the mother of two children, became pregnant with twins. She was informed by her obstetrician that one foetus had stopped developing at eight weeks gestation. In the 17th week of pregnancy it was confirmed that the second foetus had a lethal genetic condition. She felt unable to tolerate the physical and mental toll of a further five months of pregnancy with one foetus dead and with the other dying. She did not consider any legal proceedings in Ireland at that point, but rather made arrangements to travel to the United Kingdom for an abortion, which she underwent. She chose the medical induction option, leading to 24 hours labour, as she felt it was the option most respectful of the second foetus. She felt that there was a culture of concern in this hospital which she found reassuring. She did not have time to remain in the UK to have counselling on the genetic implications for future pregnancies, although she was given some statistical information about the recurrence of this abnormality. She transported the foetus to Ireland for a discreet burial by a sympathetic minister.

The Government's submission to the Court stated:

[T]he foetus was viable in the X case whereas in the present case there might be an issue as to the extent to which the State was required to guarantee the right to life of a foetus which suffered from a lethal genetic abnormality. The meaning of “unborn” in Article 40.3.3⁰had attracted some public and academic comment. However, there had been little judicial examination of the meaning of “unborn” and certainly no case comparable to the present. Accordingly, although it was true that Article 40.3.3⁰had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If, therefore, it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3⁰or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb. In the absence of a domestic decision, it was impossible to foresee that Article 40.3.3⁰clearly excluded an abortion in the applicant's situation in Ireland.

On the basis of these submissions, the court found that if the question of whether Article 40.3.3⁰excluded an abortion in the case of a fatal foetal abnormality was novel, it was, nevertheless, an arguable one with sufficient chances of success to allow the initial burden on the Government to be considered satisfied. Accordingly, the European Court found that a legal constitutional remedy was, in principle, available to the applicant in Ireland to obtain declaratory and mandatory orders with a view to obtaining a lawful abortion in Ireland. This obviously begs the question - was the Government wrong in what it told the European Court of Human Rights on 6 September 2005, or was the Taoiseach wrong in what he told the Dáil yesterday?

See this speech in context