Marie Louise O'Donnell (Independent) | Oireachtas source

I move amendment No. 2:

In page 6, between lines 2 and 3, to insert the following:“ “fatal foetal abnormality” means a medical condition suffered by a foetus such that it is incompatible with life outside the womb;”.

I spoke about the issue of fatal foetal abnormality last year, in respect of the D case in the European Court of Human Rights in 2006, which was brought by someone known at the time as Miss de Barra and who we now know as Deirdre Conroy. She became pregnant with twins, but one foetus died and the second foetus was diagnosed with the life threatening Edwards Syndrome. She travelled to England for a termination and then took a case to the European Court of Human Rights. Her argument was that it was a breach of her rights that the only way she could have ended the non-viable pregnancy was to travel abroad for treatment. The European Court of Human Rights ruled in favour of the Irish State, as Miss de Barra did not go through the Irish courts.

On behalf of the Irish State, Gerard Hogan argued that Miss de Barra had a good prospect of succeeding had she brought an application to the Irish courts for legal abortion in Ireland. Gerard Hogan, on behalf of the Irish State, argued that the X case had demonstrated the potential for judicial development in this area. The following is the kernel of my argument for including fatal foetal abnormality in this Bill via this amendment. According to the judgment of the European Court of Human Rights, the foetus was viable in the X case, whereas in the D case there might be an issue as to the extent to which the State was required to guarantee the life of a foetus which suffered from a lethal genetic abnormality. Gerard Hogan, on behalf of the Irish State, also argued that the courts in Ireland were unlikely to interpret the provision with remorseless logic, particularly where the facts were exceptional. Gerard Hogan and Donal O'Donnell SC, on behalf of the Irish State, argued that it had been established that if there was no realistic prospect of the foetus being born alive, then there was at least a tenable argument which could 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° of the Constitution, or that even if it was an unborn, its right to life was not actually engaged as it had not the prospect of life outside the womb, that the foetus with a life threatening abnormality might not be found eligible for constitutional protection by the Irish courts. If it was an unborn, its right to life was not actually engaged as it had no prospect of life outside the womb. It was also noted by the European Court of Human Rights 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 abnormality incompatible with life. He won. The Irish State won.

Why is this case not at the centre of our legislation? Why is the Government not including this Irish victory on the Bill? Why is the Government thinking one way in Ireland and arguing another way successfully in the European Court of Human Rights? I would like an answer to those questions.

It has been shouted across the Senate that this case was inadmissible. The European Court of Human Rights chose not to hear the case for a number of reasons. First, the Government had persuasively argued that Miss de Barra would have a fair and humane hearing at home.

Second, there was every possibility that the Irish courts would have found that an abortion in her circumstances would have been lawful under the Constitution and that she should have taken her case to the Irish courts before going to Europe. Therefore, the big win for Ireland was that its courts and Constitution were perceived as humane, reasonable and capable of dealing with Ms de Barra's case without needing any interference from Europe. In essence, the Government escaped having laundry aired in Europe, with the publicity and ethical pressure that a full hearing would have brought. Mr. de Barra kept silent at the time. Having had the abortion and taken the case, she could not very well have turned around to litigate in the Irish courts. The Government was allowed to continue on, as always, not having to tackle the issue head-on.

The judgment on admissibility runs to 30 pages. Therefore, it was not just a technical, quick decision. It is not the same as a case being thrown out of the Irish courts. When cases are thrown out of the Irish courts, it is usually because they have no merit or are vexatious. In Europe Ms de Barra's case was declared inadmissible, not because it had no merit but because the European Court of Human Rights felt the Irish courts would have offered her a fair hearing and that the Constitution was up to the job. This was a huge win for the Government in Europe.

Where is that win in the Bill? I would like it to be included in the case of fatal foetal abnormalities. Why is the Government arguing one set of circumstances in Europe and another on our own shores? Why was a reasonable and accepted argument for abortion in circumstances involving a fatal foetal abnormality deemed by the Government acceptable for argument in the European court by Mr. Gerard Hogan and not used, or at least argued, included or discussed, in the Bill? I include also the deliberations of the expert group. As part of our amendment, I would like it to be included. I would like women - be they married, single, couples or partners – to at least have this choice. I would like the Bill to include our amendment and give those women making a profound decision in their lives a choice.