Tuesday, 4 December 2012
Report of the Expert Group on the Judgment in the A, B and C v. Ireland Case: Statements
I am pleased to have the opportunity to make this statement on the report of the expert group on the judgment of the European Court of Human Rights in A, B and C v. Ireland.
The reason for this debate - more than 20 hours have been set aside for statements to be taken in the Houses of the Oireachtas on this topic - is that the Government is committed to allowing all Members of the Houses the opportunity to make a statement on this issue. Time for this purpose has now also been allocated in the Seanad, where a discussion will take place on Thursday afternoon. Following this discussion, the Government will make a decision before the Dáil goes into recess on the option to be pursued to implement the judgment in A, B and C v. Ireland. The public hearings to be held by the Joint Committee on Health and Children in the new year will give us a further opportunity to discuss the option for implementation that the Government will have chosen.
We are conscious that this is a sensitive issue and most of us hold strong personal views on it. However, it is important to bear in mind that the Government has consistently stated its commitment to implement this judgment of the European Court of Human Rights.
I must also reiterate that the Government is committed to addressing this issue within the confines of Article 40.3.3° of the Constitution and its interpretation by the Supreme Court in Attorney General v. X. As we all know, this case involved a 14 year old girl who became pregnant as a result of rape and was suicidal. The court deemed that, where it was established on the balance of probabilities that there was a real and substantial risk to the life, as distinct from the health, of the mother and that such risk could only be averted by the termination of her pregnancy, such termination was lawful. This included where there was a clear and substantial risk to the life of the woman arising from a risk of suicide.
Recent comments inside and outside of this House have addressed other unfortunate situations where pregnancy might arise cut of traumatic incidents such as rape or incest. At this juncture, these scenarios per se do not come within our constitutional and legal provisions and, therefore, were not and could not be addressed by the expert group or, indeed, by the Government through the implementation of the judgment of the European Court of Human Rights.
Before I move on to discuss the background to the report and its merits and implications, I wish to put on record once again my gratitude to the expert group, in particular to the honourable Mr. Justice Seán Ryan, for its commitment and dedication to this work and for the invaluable contribution it has made in bringing clarity to this complex and sensitive issue. While it is true that a number of other bodies have previously addressed the issue of how to provide for the X case, the House would agree that the report of the expert group presents with consistent clarity and lucidity the many complex issues that need to be resolved in order to bring clarity to the provision of medical treatment to pregnant women whose lives are at risk.
In December 2009, the European Court of Human Rights heard a case brought by three women in respect of the alleged breach of their rights under the European Convention on Human Rights in regard to abortion in Ireland. This is known as the A, B and C v. Ireland case. All of the applicants were women who unintentionally became pregnant and who travelled to the UK for abortions.
The European Court of Human Rights accepted that Article 40.3.3° of the Constitution, as interpreted by the Supreme Court, provided that it was lawful to terminate a pregnancy in Ireland if it was established as a matter of probability that there was a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by a termination of the pregnancy. This provision has not been altered by the judgment.
The court found that there had been no violation of their rights under the convention in respect of the first and second applicants, Ms A and Ms B, and it dismissed their applications, and that there had been a violation of the right to private and family life contrary to Article 8 of the convention in the case of the third applicant, Ms C. The court held that there was no accessible and effective procedure to enable her to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law. The court ruled that "no criteria or procedures have been ... laid down in Irish law ... by which that risk is to be measured or determined, leading to uncertainty..." and held that further legal clarity was required.
The establishment of the expert group and publication of its report fulfil an important commitment in the programme for Government. The expert group was established in January of this year and its terms of reference were as follows: to examine the A, B and C v. Ireland judgment; to elucidate the judgment's implications for the provision of health care services to pregnant women in Ireland; and to recommend a series of options on how to implement the judgment taking into account the constitutional, legal, medical and ethical considerations involved in the formulation of public policy in this area and the overriding need for speedy action.
The group was composed of experts in the fields of obstetrics, psychiatry, general practice, law, professional regulation and public policy. It met nine times from January to October and submitted its report to me on 13 November.
The expert group's report starts off by clearly indicating that, in order to stay true to its terms of reference, it would not recommend one particular solution for the implementation of the judgment in A, B and C v. Ireland, but would suggest a number of options. Sticking closely to its remit, it explicitly stated that it did not see it as its task to consider or recommend changes to abortion law in Ireland.
The expert group report then gives a clear and concise overview of the current legal provisions governing termination of pregnancy in Ireland and meticulously outlines the historical background to the legal developments that have taken place on abortion in the past 30 years.
The report then describes the judgment of the European Court of Human Rights in A, B and C v. Ireland and its legal implications. The report maintains: the State is under obligation to do the following:
A. Provide effective and accessible procedures to establish a woman's right to an abortion as well as access to such treatment.
B. Establish criteria or procedures in legislation or otherwise for measuring or determining the risk.
C. Provide precision as to the criteria by which a doctor is to assess that risk.
D. Set up an efficient independent review system where a patient disputes her doctor's refusal to certify that she is entitled to a lawful abortion or where there is a disagreement between doctors as to whether this treatment is necessary.
E. Address sections 58 and 59 of the Offences Against the Person Act 1861.
In essence, the expert group indicates that the State is under legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether they are entitled to a lawful abortion in Ireland. Furthermore, it asserts that: "It would obviously be insufficient for the State to interpret the court's judgment as requiring only a procedure to establish entitlement to termination without also giving access to such necessary treatment." The expert group then openly and explicitly presents the principles adopted in its deliberations and reflected in the proposals it puts forward for the implementation of the judgment. These are very clear principles and they are fully in line with our constitutional, legal, ethical and medical requirements. These are:
Principle 1. The entitlement to have the right to lawful termination of pregnancy ascertained should be established.
Principle 2. The State's constitutional obligations under Article 40.3.3° should be reflected in the options proposed to implement this judgment.
Principle 3. Termination of pregnancy should be considered a medical treatment regardless of whether the risk to the life of the woman arises on physical or mental health grounds.
Principle 4. It will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is clinically appropriate medical treatment.
I believe that these principles taken together provide a clear and humane framework on which to base the provision of lawful terminations of pregnancy in Ireland. Moreover, in adopting as one of its principles the constitutional obligation under Article 40.3.3° and reflecting its provisions throughout its report, the expert group has shown us that there are ways in which the right to life of the pregnant woman can be protected, while requirements are also put in place to ensure that due regard is given to the right to life of the unborn, and that the dignity of the foetus is respected in cases where this can be achieved without compromising the woman's right to life.
Therefore, although the report clearly supports the Supreme Court judgment in the X case as the correct criteria to assess whether a woman is entitled to a lawful termination of pregnancy, that is to say when 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, it also explicitly states that, as part of the test, the treating doctors will have to consider whether it is practicable to preserve the life of the unborn in the process of terminating the pregnancy without compromising the right to life of the woman, and evidence of this consideration must be documented. The report also rejects the arguments often put forward that the judgment in Attorney General v. X establishes a right to an abortion at any gestational age. The expert group argues that the judgment indicates that where a woman has a pregnancy that places her life at risk and her foetus is or may be viable, she may have a right to have the pregnancy brought to an end but not a right to insist that the life of her foetus be deliberately ended and that this approach also reflects an obstetrician's medical obligation to care for both of his or her patients, namely, the pregnant woman and the foetus. Therefore, for example, a pregnancy that has reached or is approaching viability could be terminated by early induction with appropriate neonatal care to follow.
The four principles outlined in chapter 5 underpin the detailed procedural options presented in chapter 6. This chapter illuminates possible avenues for the assessment of an entitlement to lawful termination of pregnancy in Ireland and for the delivery of this medical treatment. It discusses the possible qualifications of the doctors involved in the process, the number of doctors who would be responsible for reaching a decision, what their different roles might be, and the locations where terminations might take place. It also extrapolates potential exceptions to the process, such as in the case of an emergency or when dealing with conscientious objection. In addition, this chapter provides a lengthy discussion on a formal framework to review the initial clinical decision, which is one of the main requirements emanating from the judgment.
The expert group correctly emphasises that any system that would be put in place should be duly monitored. It indicates that from a clinical perspective there is a need to keep records on the number of women who might seek and be given terminations and the medical reasons that gave rise to such treatment. In addition, statistics are also required to inform policy, as well as to ensure that the legal and constitutional principles and requirements of the system are being upheld.
The final chapter of the report sets out four options for the implementation of the European Court of Human Rights judgment in the A, B and C v. Ireland case and these are: guidelines alone, regulations alone, primary legislation alone, and primary legislation coupled with regulations. It is those options that are now being considered and discussed by the Government and the Members of the Houses of the Oireachtas.
I take this opportunity to restate the Government's firm commitment to implement the judgment of the European Court of Human Rights in the A, B and C v. Ireland case and bring the required legal clarity to the issue of lawful abortion in Ireland. That does not mean abortion on demand. That is doubtless one of the most divisive issues in Irish society and yet we must try to discuss it in an even and calm manner. We must protect the life of the pregnant mother and yet vindicate the right of the unborn child. We must clarify what is available by way of treatment to the women of Ireland and clarify what is legal for the professionals who must provide that care. As a Government we are elected to act, and we will.
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.
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.
-----and was again defeated. We have had 20 years of delay after delay, of reports and referendums and six Governments all dodging their responsibilities.
I earnestly hope this will not be the seventh Government to dodge this issue. This means facing up to the reality highlighted by pregnant women who are confronted with life-threatening illnesses and have to cope with awful dilemmas. The expert report sets out the options for the Government. It is clear from the report and the European Court decision that Ireland violates the rights of its women citizens and residents by failing to provide an accessible and effective procedure to enable them to establish whether they qualify for a lawful termination of pregnancy in accordance with Irish law. The decision by the European Court has made clear there is an onus on the State to legislate under the terms of the 1937 Constitution and the decision in the X case.
With the agreement of the House I will share my time with Deputy Joan Collins.
We have discussed this issue several times in the past number of weeks and I think the Minister and the Government are trying to present it as a positive that we will have 20 hours of discussion on this topic in the next number of weeks. The reality is that we have had 20 years of waiting for successive Governments to legislate for a woman's legal and constitutional right to an abortion in Ireland where her life is in danger, including from a risk of suicide.
Other Deputies have said it is a scandal that this issue has been ignored for so long, which it is, but I see our discussion in the next number of weeks as a further delaying tactic. Every opinion poll and survey and the outpouring of emotion and discussion in the past number of weeks show that people in Ireland support the provision of lawful abortion where a woman's life is in danger, as they have done in successive referendums. Members of the Government are merely saying they will let us know before Christmas what they are going to do about it, and not that they are actually going to do anything. They will simply tell us what they will do. That is not good enough.
This is not rocket science. It is pretty straightforward. We now have the findings of the fourth expert group and - surprise, surprise - they are not dramatically different from the findings of the many other expert groups, because the reality is quite straightforward.
Comparing the actions of the Minister with the reaction of the British Government to the Leveson inquiry tells an interesting tale. The British Government launched an investigation into cultural practices and the ethics of the press. The inquiry presented a 2,000 page report which was published immediately and the Government made a statement on it within hours.
Here we have an expert group set up, issuing a report with 58 pages with a few pictures and graphs thrown in for good measure that was months late. With weeks to release it, the newspapers got it before the Dáil, and weeks later we have still not had an official response from the Government on what it will do on an issue that is decades old.
That sums up the systematic ignoring of the issue that has gone on over decades. This is an opportunity to blood a few backbenchers, let them get their fears off their chests and appease their constituents, talk to whomever they want and then, in the new year, the Government will whip them into line because everyone knows there must be legislation. There is no way out of it in terms of the European Court or any other basis to fail to act. In that sense, it is regrettable that the Government did not take the opportunity to support our Bill progressing to Committee Stage last week because that gave the basis to frame legislation that we could have amended later on to bring in this most basic of provisions.
As the expert group has said, we are talking about primarily medical decisions that have been caught up in a legal quagmire. Let us be honest - this is the case because of the traditional interference of the Catholic Church in the running of State matters in Ireland. That is why we are in this mess, with the original 1983 referendum and the unwelcome amendment to the Constitution. That is the nub of this. These issues should never have been in the Constitution in the first place; these are private mattes between women and their doctors and there should be no basis for interference here. Many other jurisdictions manage to deal with this simple medical practice by guidelines and medical procedures as they do for many other medical practices. There is no need to get bogged down in difficulties.
The reason we are in difficulty is because of the constitutional situation. As a result of that, we have succeeded in treating women, as the Minister for Justice and Equality said last week, as second class citizens with lesser rights to equality and whose health has been jeopardised. We want to make it clear at the outset that if the Government does not come forward with legislation early in the new year, we will most definitely reintroduce our Bill. I would like to see the Labour Party Members on the backbenches try to weasel their way out of this one if there is no provision for legislation. Basic primary legislation can be added to using ministerial powers. There is no doubt that is the way forward. The dogs on the streets are asking how far we will move forward and if it will represent progress after all this time. How could it be posed as a fundamental breakthrough that women have the right to have their lives protected? The fact we are even debating this is quite insulting.
The tragic circumstances of the death of Savita Halappanavar have put on the agenda the circumstances for many women who find themselves pregnant in this country who have to choose to have an abortion. It has opened the debate up beyond this. It would be interesting to examine the mixing up of canon law in the background debate. The church claims that it fully appreciates a woman's life must be protected and in such an instance where there is a termination, it is not really an abortion, dressing it up as if it does not have a problem. That lie was exposed by stories highlighted in Arizona last week, where a Catholic bishop ex-communicated the head nun in a hospital and decommissioned the hospital as a Catholic hospital because it terminated a pregnancy for lifesaving reasons.
We have all heard the stories in recent weeks told by people who have gone on the airwaves, stories of women who have suffered the trauma of carrying foetuses with fatal abnormalities that they know at any minute could die and who have been driven out of the country at significant cost to march around the streets of Liverpool or Birmingham to have a termination. One woman said that the ashes of her foetus that had been incinerated were sent back to her in a DHL package because they could not deal with that situation over there. She could not acknowledge where she had been and this added further shame and trauma, an indefensible cruelty, as the Minister for Justice and Equality said last week. I agree with him but I do not agree with the way he shrugged his shoulders and said he was sorry there was nothing the Government could do.
There are all sorts of reasons for women to decide to have an abortion - rape, incest, women who are too young or too old. There are Irish abortions - they just do not happen in Ireland. Well over 150,000 Irish women have been through this, thousands every year. The people who have contacted us and who are out on the streets and have spoken in the opinion polls say this hypocrisy must be addressed.
This has touched a nerve. I was contacted by a man from down the country during the week who told me the Savita case reopened old wounds for him and his family. He told me how his mother died in similar circumstances in 1961 in the Coombe hospital, where she bled to death during her seventh pregnancy. This man was six years of age, with sisters and brothers ranging in age from 12 to three. The foetus died and as a result of his mother's death, his four sisters, his brother and himself were taken into the industrial schools because their father could not cope. His brother and him ended up in Artane, and his sisters were sent to Goldenbridge. They spent between five and ten years in those institutions before their father could get them back and try to put the family back together. When they arrived back to the house, they had no change of clothes, no bedding or shoes other than the wellingtons they had on. No one ever checked on them afterwards. This is the legacy of how this State has failed to support families or women. All that man wanted was that one day his story would be put on the record in the Dáil and I want to do that now.
It is unacceptable that we continue to ignore the tragedy and trauma that goes on in life. All that any civilised society can do is try to support its citizens in their decision making and in the difficult choices they must make, including the right to have children, have them safely and raise them in dignity without fear of poverty or stigma. We have a lot to learn. We have come a long way in some ways but in other ways we are stuck back in the years that man and his family had to endure.
This is the fourth report and yet again it states what we know needs to be done: we must legislate for abortion. Article 40.3.3° is clear on that basis. The dogs in the street know that needs to be done but we are still waiting for the smallest door to be pushed open to secure the right of a woman to have an abortion when her life is threatened up to the point of suicide. The report once again makes the point that legislation is required to give effect to the rights of women under Article 40.3.3°.
There are two issues - the Supreme Court judgment on the X case, and the European Court of Human Rights judgment on the A, B and C v. Ireland case - that place an obligation on the State to plan for the five main points in the report. It must provide effective and accessible procedures to establish a woman's right to an abortion as well as access to treatment, which means facilities must be provided; establish criteria or procedures in legislation or otherwise for determining risk; make provision for the criteria by which a doctor is to assess that risk; and set up an efficient, independent review system where a patient disputes her doctor's refusal to certify that she is entitled to a lawful abortion or where there is a disagreement with her doctor as to whether the treatment is necessary.
The Bill we introduced last week generally covered those points. As Deputy Daly said, if this legislation is not introduced in the new year, we will have no problem reintroducing our Bill to the House.
The last point is to address sections 58 and 59 of the Offences against the Person Act 1861. They have been discussed at length in society in recent years in regard to legislating for the X case. The only way to do this is to provide the legislation, possibly with regulations to back it up, as recommended in the report.
I want to deal with some of the arguments that I believe we will hear, including that Ireland is the safest place to give birth. This has nothing to do with the debate on abortion. The argument is irrelevant because the level of these deaths is extremely low in advanced capitalist economies. Last week The Irish Times health section contained a very good report. It stated:
Ireland, we have been told over recent weeks, is one of the safest countries in the world to be pregnant and have a baby. According to figures from the Central Statistics Office (CSO) for 2009, there were four maternal deaths per 100,000 live and still births.
However, experts here now say that figure is an underestimate and the rate is double that.
The World Health Organisation (WHO) defines a maternal death as: “The death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes.”
According to figures in the Confidential Maternal Death Enquiry (MDE) in Ireland, Report for the Triennium 2009–2011, the maternal death rate here is eight per 100,000. Dr Michael O’Hare, consultant obstetrician at Daisy Hill hospital in Newry, Co Tyrone and chairman of the Maternal Death Enquiry group, says the higher rate comes from far more thorough data gathering than that gleaned solely from the civil register of deaths.
That figure can be compared with other countries in favourable and unfavourable conditions. The Irish figures compare favourably with Britain, which had a death rate of 11 per 100,000 births between 2006 and 2008, though not as well as with Norway which had seven maternal deaths per 100,000 births, or Sweden which had five maternal deaths per 100,000. These countries have different levels of abortion access. Some countries have abortion on request and other areas are somewhat more restrictive. I believe that contradicts the argument about Ireland being the safest place as measured by maternal deaths and using that as a reason not to have real discussion and debate, and bring in laws on abortion.
I dealt with the issue of suicide last week, but it is important to continue to make the point. The anti-abortion side of the argument is trying to make an issue of suicide and abortion, and it is deliberately trying to distract the discussion away from the real issue. Speaking on radio last week Anthony McCarthy, one of the country's most prestigious perinatal psychiatrists, made the point that while the risk of suicide is small, it is nonetheless real and must be addressed. This is also the view of the other two perinatal psychiatrists. This is a very important point to make because the idea that suicide is not an issue is ridiculous. It is a real issue and one that people face every day unfortunately.
There is also an attempt by the anti-abortion lobby to mislead by arguing that abortion is a contributor to mental health problems. This has nothing to do with this issue. Last year, the Academy of Medical Royal Colleges in the UK undertook a comprehensive review and the key conclusion was that the mental health outcomes for women who have an abortion are the same as for those women who go on to have a baby. All those arguments are thrown in to distract from the real discussion, which is that the Government must legislate for the X case very quickly. There is evidence that suicide is associated with unwanted pregnancies where abortion is not available.
The point was made that people's views in the debate on abortion have changed and I agree. A recent RED C poll indicated that 85% of those polled said that legislation must be introduced to deal with a threat to the life of the mother up to and including suicide, as was proposed by Mr. Justice McCarthy following the X case. The Government must now legislate. It is no longer the privilege of Government to ignore the right of a woman in such a situation to have legislation allowing her to discuss the matter with her doctor and come to a conclusion that an abortion must take place.
Some 83% of those polled said that there should be access to abortion for women who became pregnant as a result of rape or incest. The report of the expert group does not really deal with this aspect. It does not really deal with the C case issue - A and B are not really part of the discussion from the point of view of the expert group. We must broaden the scope, which can only be done by repealing the Eighth Amendment to the Constitution. The Government must face up to that. If we go back to Europe claiming we are dealing with these issues, we need to outline concrete steps as to how we will enact this and we must repeal the Eighth Amendment to the Constitution. We must repeal the horrendous 1861 Act. As I said last week, in India that Act was repealed in 1971. One of the first things the Government must do is take that absolutely chilling legislation out of our laws.
We have heard of many cases of women who had fatal foetal abnormalities and they are not included in regard to having access to abortion here. These women are still travelling to Britain in terrible and traumatic conditions. I wish to read an e-mail I received from a woman:
Sunday the 2nd of December 2012 it will be one year to the day since I delivered my baby girl Aoife stillborn, after finding out 3 weeks before that she had a terminal genetic condition called Edwards Syndrome and would not survive outside the womb.
I was, and in ways I still am, devastated. I miss her every day, and I probably always will. Upon being given the news at 22 weeks in to my pregnancy, myself and my husband made the excruciating difficult decision to end the pregnancy early.
For us, it was the most humane and sanest choice, as I could not have functioned, knowing of her condition, spending every second of every day wondering if she had died inside me.
Nor could I see any kindness in bringing her into the world to watch her suffer massive organ failure and die in front of our eyes. I would not put my baby through that.
This is a decision we should have been able to make in private, with the support of a medical team in Ireland.
But to do what we thought was best for our family and for our darling girl, we had to travel to Liverpool Women's Hospital, where we were treated with such kindness and compassion, it may be the only thing that saved my sanity. I felt, and still feel, so hurt and frustrated that this situation continues, and unless cases like ours our considered along with the X case and ECHR judgements, this will continue to happen to several couples per week.
As a public representative, your laws added such unnecessary pain to what was already the worst time of myself and my husband lives. Why? To what end?
Our darling daughter, that we longed for more than any anyone else on this planet, was never going to live. Yet we still found ourselves falling under Ireland's 'abortion laws'.
This needs to change now.
Please, do not forget about cases of fatal foetal conditions, when you are considering action on termination of pregnancy in the coming weeks.
This is a matter we must address. We need to show responsibility and take on board the situations in which these women find themselves every day of the week. The RED C poll indicated that 36% of people are fully pro-choice regarding accessing abortion in Ireland. I cannot understand the hypocrisy of people saying they do not want abortion in Ireland. If they felt that strongly they would be calling for a repeal of the laws on access to information and travel. It is absolutely hypocritical for people for say we do not have abortion in Ireland because we send it away. This debate must widen and we must be serious, responsible and mature. I believe the people have done that.