Séamus Healy (Tipperary South, Workers and Unemployed Action Group) | Oireachtas source

I rise to speak to the group of amendments, of which Nos. 10, 11, 30 and 81 are in my name. Provision in respect of fatal foetal abnormality and inevitable miscarriage should and could be included in the Bill within the terms of the Constitution. The group Terminations for Medical Reasons have pleaded with the Oireachtas to deal with the tragic issue of fatal foetal abnormality. These are much wanted pregnancies which, sadly, turn out to be incompatible with life. The groups states:

It is happening every day. Please do not ignore this crisis. We ask you to include provision for termination of pregnancy on grounds of fatal foetal abnormality as part of the forthcoming legislation on abortion in Ireland.

The group indicates that there are 1,480 of these cases every year. These couples are forced to travel to Britain to seek terminations. As they have said, compassion is all very well, but what they need now is action. They need the provision to be included in the legislation. They have published their own stories. It would be informative for the Chamber to hear one of them. I quote:

At 22 weeks, we went in for our scan. We were shocked when after nearly two hours of scanning, we were told that our baby was incompatible with life and was going to die. We were further shocked when our consultant told us that our options were to continue with the pregnancy or travel to Liverpool. Our baby had no kidneys, brain abnormalities and spina bifida so severe that if it had been the only thing wrong, she would still have died.

This is an example of the tragic circumstances in which as many as 1,500 couples find themselves every year.

These issues could be dealt with within the terms of the Constitution. Quite a number of legal experts have confirmed this view and put forward that view clearly at the hearings of the committee. They are strongly of the view that dealing with terminations for this particular condition is compatible with the Constitution. It is important to note that the State itself is on record as inviting the European Court of Human Rights in D v. Ireland to adopt the view that termination for fatal foetal abnormality is compatible with the Constitution. The Irish State argued that D should have applied in the Irish courts first because she had a reasonable chance to establish that the Constitution did not apply to a foetus with a lethal anomaly. Although Article 40.3.3^o excludes a liberal abortion regime, it was submitted that a court would not apply it with remorseless logic to such exceptional and tragic circumstances. The Government invited the court to adopt that view.

An important section of the judgment itself is as follows:

Accordingly, although it was true that Article 40.3.3° had 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 40.3.3°or 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 40.3.3°clearly excluded an abortion in the applicant's situation in Ireland.

There is overwhelming evidence that fatal foetal abnormality can be dealt with in this Bill in a way that is compatible with the Constitution.

Briefly, I will refer to amendment No. 11 on inevitable miscarriage. This is also an amendment that I and many others believe could be included in this legislation and would be compatible with the Constitution. Sadly, this is what happened in the case of the late Ms Savita Halappanavar. It is important to recall what the HSE report, only in June of this year, stated on this question of inevitable miscarriage. The report states that "concerns about the law ... impacted on the ... clinical professional judgement", and recommended that "the Oireachtas consider the law ... in relation to the management of inevitable miscarriage in the early second trimester". It states that the clinicians' plan for treating Ms Halappanavar was "wait and see" due to the interpretation of Irish law. If inevitable miscarriage is not included in this legislation, the continued effect of Irish law will be that medical conditions due to pregnancy that are not in themselves life-threatening, such as inevitable miscarriage, must be left to become life-threatening in order for a necessary termination of pregnancy to be legal. That is an unsustainable position, and the amendment must be included in the Bill.

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