Brian Ó Domhnaill (Fianna Fail) | Oireachtas source

We all acknowledge that there are many personal and moral opinions on this issues and it is only right that we should express these views in our own Parliament. I will state why the 1992 decision in the X case is a flawed basis for law in this area.

In its majority opinion, the Supreme Court held that a woman has a right to an abortion under Article 40.3.3° if there is "a real and substantial risk" to her life. This right does not exist if there is a risk to her health but not her life. It exists, however, if the risk involved relates to the possibility of suicide. Under Article 40.3.3° of the Constitution: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." Ireland's laws state that abortion is only allowed where continuation of pregnancy would put a woman's life - not merely her health or other interests - at risk.

The Supreme Court ruled in the X case that the right to life of the mother is superior to the right to life of the unborn, which was labelled as "contingent". This departure from the unambiguous constitutional position and the two-patient model it inspires resulted in the legal outcome that if a mother threatens to commit suicide, the Supreme Court holds that she has the right to an abortion. Unfortunately - I share Senator Walsh's concerns in this regard - the Supreme Court reached this conclusion without hearing expert psychiatric evidence. In addition, the huge volume of medical research which has emerged in the interim shows that abortion is not a treatment for suicide, that it may actually increase the risk of suicide or that, at its height, is neutral in affecting the risk of further mental illness. In the X case, there were no time limits placed on the right to abortion in circumstances where there is a threat of suicide. Legislating in respect of the X case may, therefore, entail legislating or regulating for an extremely liberal position on abortion. Such a position would allow all women who establish that they are at risk of committing suicide to have abortions at a late stage. Any attempt to put in place time limits may have the effect of rendering the proposed legislation contrary to the decision in the X case.

This issue has resurfaced as a result of the decision handed down by the European Court of Human Rights in the A, B and C v. Ireland case. It is important to note that the European Court of Human Rights ruled that there is no right to abortion under Article 8 of the European Convention, and - affirming its ruling in Vo v. France in 2007 - holds that contracting states are entitled under the convention "to choose to consider the unborn to be a person and to aim to protect that life". The court also held that "Article 8 cannot ... be interpreted as conferring a right to abortion". The situation for the woman known as "C" arose because it was uncertain and unclear whether she could have access to abortion in a situation where she believed that her pregnancy was life-threatening. Rather than information being unavailable, the problem was that there was nowhere C could go in order to secure a legally authoritative determination of her rights. All other complaints were dismissed as well as C's additional argument that Article 2, which relates to the right to life, were violated were dismissed by the European Court of Human Rights as "manifestly ill founded". Thus, Ireland has a broad margin of appreciation to maintain its existing laws where they are sufficiently clear. Where they are not clear, the State can provide further clarity. It is not, therefore, required to legislate on the basis of the X case.

The European Court of Human Rights holds that there is no right to abortion under the convention and that Ireland is entitled to protect the right to life of the unborn child. Since the case of A, B and C v. Ireland did not relate to suicidal ideation, and because the X case does more to obscure rather than to clarify the legal position, the most reasonable, proportionate, and effective way of responding to the judgment handed down by the European Court of Human Rights - in order to afford clarity to those in the position of applicant C - would be to regulate for the two-patient model, which is current best practice in Irish hospitals and which is internationally celebrated.

In addressing the report of the expert group, I am conscious of the attitudes of the medical profession. Regardless of whatever action the Oireachtas takes in respect of this matter, the medical profession must have its own input. The guidelines the Irish Medical Council has laid down for doctors to follow in this regard - these were updated in 2009 - clearly state, in section 21.1, that:

Abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother. Under current legal precedent, this 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 the clinical research on this issue.

I am of the view that these guidelines could provide the basis for bringing certainty and clarity to Ireland's response to the judgment of the European Court of Human Rights.

I do not believe that Senators and Deputies have the right to legislate on this matter without first asking every citizen in the country who is over 18 and eligible to vote for his or her opinion. This could only be done by means of a referendum. I met a constituent recently - the gentleman in question is an accountant - who would not be alive today if abortion had been available to his mother, who gave birth to him out of wedlock. The intention behind the legislation introduced by Lord Steele in 1967 was very different to the outcome to which it has given rise. Some 36,000 abortions took place in Britain in 1968. Last year, there were 190,000. A total of 95% of these were granted on the basis of mental difficulties being experience by the mothers involved.

If we were to legislate on the grounds of suicide, then what has happened in Britain in respect of the unborn would - in proportionate terms - occur here. There is a need to provide constitutional protection for the unborn.