Fiach MacConghail (Independent) | Oireachtas source

I welcome the Minister to the House to discuss the outcome of the report of the expert group on the judgment in A, B and C v. Ireland case. I welcome the fact that the debate has been scheduled so close to the report's publication in order that members can contribute to what is undoubtedly a sensitive, demanding and emotive constitutional issue.

In accepting my nomination by the Taoiseach, I knew there would be days such as today when I would make a public contribution on the floor of the Seanad on a matter of personal interest to women and of national importance to society. The purpose of the Seanad in theory - and I hope it is exemplified today in practice - is to have a calm, measured and reasoned debate on a broad range of issues, including this difficult debate about abortion. All of us in the House - I have witnessed this in the past 18 months - have shown an extraordinary and diverse range of expertise and engagement and I trust that today will be no different in the quality of our debate.

I have read the report from cover to cover. The export group was chaired by Mr. Justice Seán Ryan, the same man who published the Ryan report, and he has brought the same clarity of thinking to bear on the report of the expert group. I would recommend to anyone who is listening and interested in this issue to read it, as it conveys in clear language the complex legal issues involved. It reads:

It is 30 years since the 8th Amendment was enacted following a bitter political debate and amid controversy about the meaning and effect of the new constitutional provision. It is 20 years since the Supreme Court came face to face with the issue in the urgent and fraught circumstances of the X case. The Supreme Court by a 4-1 majority allowed a child to have an abortion in the rare and extreme circumstances that arose. The Court interpreted the Constitution and specifically the newly inserted Article 40.3.3°. That decision has remained controversial.

That is the clarity the report offers. It is in language that is not from any professional perspective or persuasion, which is welcome. Ultimately, it carefully describes the 20 years of inaction by the Oireachtas and the failure of the Legislature to put in place a formal system of guidelines, regulations or legislation arising from the Supreme Court decision in the X case. The lack of action by the Oireachtas in implementing the decision in the X case is a source of disappointment and has created legal uncertainty. No matter what side of the debate we may be on, I am sure that, as Members of the Oireachtas, we can all agree that inaction is bad governance which, in turn, leads to ambiguity and perpetuates the nod and wink culture that has been so pervasive in Irish society.

In chapter 3 the report contextualises the historical legal journey from 1861 to 2009. It includes the Offences Against the Person Act 1861, the eight amendment of the Constitution of 7 October 1983, the X Case in March 1992, the 13th and 14th amendments of the Constitution of 23 December 1992, the Constitution review group's report of November 1996, various updated and revised Medical Council guidelines, the Green Paper on abortion in 1999, the all-party Oireachtas committee on the Constitution in 2000, the establishment of the Crisis Pregnancy Agency in 2001 and the 25th amendment of the Constitution of 6 March 2002 on the protection of human life in pregnancy, whereby a threatened suicide would be excluded as a risk to the life of the mother, thus limiting the judgment in the X case. This was defeated.

In December 2010 the European Court of Human Rights, after hearing the case which had been brought by three women known to us as A, B and C, found that there was a violation of C's right to a private and family life, contrary to Article 8 of the European Convention. The court held that there was no accessible and effective procedure to establish whether C qualified for a full termination of pregnancy in accordance with Irish law. The expert group has given the Government and the Oireachtas advice on how to implement the judgment of the European Court of Human Rights, in other words, "How to give effect to existing constitutional provisions".

I am mindful of my privileged position in the Seanad, as I am able to offer my view, respond to the legal uncertainty and participate directly in the democratic process. I am also mindful that in a sovereignty, such as we in Ireland enjoy, it is our duty, as legislators, to give effect to the will of the people who have spoken on the issue in three separate referendums, two of which expressly related to the question of suicide. When I read the report over the weekend, I had to clarify my own thoughts as a man, father, partner, Irish citizen and legislator. After careful consideration and with some reluctance which I shall explain, I am in favour of legislating and providing regulations to provide for the lawful termination of pregnancy by providing primary legislation and regulations to enact the X case criteria.

The history of legislative activity which I listed includes the 1861 Act. There seems to be a contradiction between Article 40.3.3° of the Constitution, as interpreted by the Supreme Court in the X case, and sections 58 and 59 of the 1861 Act. The report states that as long as sections 58 and 59 remain in force, with their absolute prohibition on abortion and associated serious criminal offences, there will continue to be a lack of certainty for a woman seeking a lawful abortion in Ireland. In its judgment in December 2010 the European Court of Human Rights stated the Act "would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under this Act". I ask the Minister and as suggested by his ministerial colleague, Deputy Alan Shatter, that in legislating for the X case criteria we repeal the 1861 Act.

Although outside the scope of the report of the expert group, it would be remiss of me not to take the opportunity to make a short comment on the differences between a substantial threat to the life as distinct from the health of a woman. I stand before Members as a feminist and as a feminist, I believe in equality. To me, that means equal access to the highest attainable standard of health care. Whatever decision is taken by the Government on implementing the judgment of the European Court of Human Rights, in its limited scope, it still enshrines an inequality in Irish law. By failing to legislate for abortion in the face of a substantial threat to the health of a woman and in cases of pregnancy resulting from rape and incest, women in Ireland remain second class citizens. Rape and incest are crimes against women. Should a woman become pregnant because of a crime committed against her by a man, I would support giving her a choice, with appropriate and regulated medical advice, to terminate the pregnancy. My conscience dictates that I do not have the right to intervene as a man or a legislator.

I object to some of the terminology I have heard in recent discourse but not in this House on the abortion issue, particularly the idea expressed by some that there are only two camps to fall into - pro-life or pro-abortion. Let me be very clear that I am pro-life. I am pro-family. I am pro-women in being ready, willing and able to have children. I am pro-women and girls not conceiving as a result of rape or incest. I am pro-viable pregnancies without serious chromosomal and fatal foetal abnormalities. I am pro-pregnancies that do not threaten the health and well-being of pregnant women and girls. Where tragically these cases do arise, I am pro women's right to choose what is in their own best interests. It is the woman who is best placed to make a decision on her own reproductive health and rights, not the legislator. I urge the Minister to adhere to the deadline the Government has set itself and proceed to legislation to fulfil its legal obligations to Irish women.