Marie Louise O'Donnell (Independent) | Oireachtas source

I thank the Minister for coming to the House. Many Senators are not present as they are attending a lecture on human rights by the Secretary of State, Mrs. Hilary Clinton, at Dublin City University. I was going to ask Senator Averil Power to stay because what I have to say locks directly into what she said. I feel a little like Mrs. Roosevelt. Human rights start in one's own kitchen, which is why most of us are here today. The Government won a 2006 European Court of Human Rights case on the right to terminate a non-viable pregnancy. Where does that leave the sacred and profound nature of the case in Galway and the case the Senator mentioned so poignantly? It involved the D case, where a woman had become pregnant with twins, in which one foetus died at 14 weeks and the other had a life-threatening syndrome, Edwards syndrome, and the woman had travelled to England for an abortion or termination. Ms de Barra did not go through the Irish courts. She took a case to the European Court of Human Rights and her argument was that it was a breach of her rights that the only way in which she could have ended the non-viable pregnancy was to travel to England for treatment and a termination. The case began in 2005 and the court in its judgment ruled in favour of the State on the right to an abortion in Ireland where a foetus had a life-threatening abnormality. Dr. Gerard Hogan, senior counsel, the law agent acting on behalf of the State, argued that Ms de Barra would have had good prospects of succeeding had she brought an application to the Irish courts for a legal abortion in Ireland and he won the case. He argued that the X case had demonstrated the potential for judicial development in this area and this is the kernel of my argument. According to the judgment of the European Court of Human Rights, the foetus in the X case was viable, whereas in the D case there might have been an issue as to the extent to which the State was required to guarantee the life of a foetus with a lethal genetic abnormality. Dr. Hogan also argued that the courts in Ireland were unlikely to interpret the X case judgment with remorseless logic, particularly where the facts of the case were exceptional. Both he and Donal O'Donnell, senior counsel, also argued on behalf of the State that it had been established that if there was no realistic prospect of the foetus being born live, there was at least a tenable argument that 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, the right to life was not actually engaged as it did not have the prospect of life outside the womb. This is extremely important. They argued that a foetus with a life-threatening abnormality might be found not to be eligible for constitutional protection by the Irish courts.

He argued that if it was unborn, its right to life was not actually engaged, as it had no prospect of life outside the womb, and he won.

It was also noted by the European Court that there was a feasible argument to be made that the constitutionally enshrined balance between the right to life of the mother and the foetus could have shifted in favour of the mother where the unborn suffered from an abnormal incompatibility with life. Where does that leave the sacred and profound nature of the Galway case? Where does that leave the sacred and profound nature of what Senator Averil Power has spoken about?

The Irish State won a case in the European Court of Human Rights on the right to terminate a non-viable pregnancy, so why was the D case not part of the experts' report? Can I be assured that future legislation and regulation will include it? Why have I heard so little about it? Why does the Government think one thing in this country and argue another in the European Court of Human Rights? Why, why, why? Why is the State now doing what it has almost done already in the European courts? The D case may bring the kind of clarity the Minister mentioned earlier, a different kind of clarity, but perhaps one we need. Why was the D case not included in the experts' report? He won the case.