Caít Keane (Fine Gael) | Oireachtas source

The debate we are having today is very sensitive and at the outset I wish to acknowledge the work of the expert group, under the expert chairmanship of Mr. Justice Seán Ryan. I also wish to acknowledge the work of the late Trevor West, a former Senator, who worked alongside former Senators Mary Robinson and John Horgan in presenting a Bill on contraception to this House in the 1970s, which was not accepted. The Supreme Court ruled on contraception in 1973 but it was more than 11 years later before legislation permitting the sale of contraceptives without a prescription was passed. Here again we find ourselves dealing with a court ruling on a matter of social policy and we as legislators are keeping up the rear on it. I wanted to make reference to the three former Senators who worked on the contraception issue because earlier today we paid tribute to Trevor West, who died recently.

As Senators have already said, abortion is a very sensitive issue. The 1861 Offences against the Person Act is the law under which doctors are operating at the moment. On December 16 2010, the European Court of Human Rights noted "a striking discordance between the theoretical right to a lawful abortion in Ireland on the grounds of a relevant risk to a woman's life and the reality of its practical implementation". The court ruled that "no criteria or procedures have been subsequently laid down in Irish law, whether in legislation, case law or otherwise, by which that risk is to be measured or determined, leading to uncertainty as to its precise application". This is where we as legislators find ourselves today - surrounded by uncertainty. As legislators, we cannot allow this uncertainty to continue. It is our duty, whether we like it or not and regardless of our personal views, to remove the legal uncertainty. It is almost 30 years since the 1983 abortion referendum and 20 years since the X case ruling.

We are still influenced and governed by 19th century law, namely, sections 58 and 59 of the Offences against the Person Act. We await the outcome of an investigation into the very sad death of Ms Savita Halappanavar and I will not comment further on that except to say we do not know the facts of that case yet. It is not strictly relevant to this debate however because this issue was on the table for the Government long before she died. It was included in the programme for Government, which makes explicit reference to the expert group. Sad as the case of Ms Halappanavar is, we must await the report from Galway.

It is important to bear in mind that the Government has consistently stated its commitment to implement the judgment of the European Court of Human Rights. The expert group report commented on the option of guidelines versus legislation in its final chapter. The four options were referred to earlier by the Minister and others and these are being considered by the Government. The report also noted that guidelines alone would be subject to legal challenge and that "only the implementation of a statutory framework, compliance with which would provide a defence from criminal prosecution, would provide legal protection to medical practitioners. It would also counteract the effect of the 1861 Act, were this to remain in force". The expert group also noted that the legislative route alone might be too rigid an approach and that is where the issue of guidelines comes in. We do not want to tie any doctor's hands when he or she is making a life or death decision about a mother or a child by the rigid application of a law. We are not experts in the fields of medicine or psychiatry. Sometimes we think we are experts on social policy but we are not. We think we are experts on politics but we see that we can be wrong.

I know we are not expert in psychiatry and we must not be too rigid in our approach. These issues must be considered carefully by the Government before making any decision.

The expert group has done its job and presented its report but the decisions must now be made by the Government and the Minister has committed to this. The A, B and C v. Ireland cases have been mentioned and dwelt on long enough. However, Senator O'Donnell also referred to the D case. As far as I know Mr. Justice McKechnie gave the ruling on the case but it was not about abortion but the right to travel and that is why it was not considered by the expert working group. The judge was ruling on the right to travel and it was not argued on abortion grounds. The HSE lost the case because it was ruled that the girl had a right to travel. That girl wanted to have her baby. She said in court that she had bought the nappies and everything else and she wanted to have her baby, but because the child was suffering from anencephaly, a brain disorder where half of the head is missing, she found that she had no choice.

She was in the care of the HSE because her mother was an alcoholic. That is on the record and that is why the case was taken. It is important that this is put on the record. It is also important that the Minister researches the case and the particulars of the right to travel. It is not an open-ended case. We cannot legislate for every sad case in the country that arises. This is a tight legislative proposal from the expert working group.