Fiach MacConghail (Independent) | Oireachtas source

I welcome the Minister who has taken a leadership role here. At the forefront of this debate he is legislating for the X case judgment, of which I am absolutely in favour. Therefore, all of my comments are based on this. We are not playing politics with the Bill. Women finally have a choice, even if it is limited, and the responsibility that they should have. The X case judgment is being legislated for and the vacuum is being closed, which I completely support.

On a technical point, there is a typographical error in amendment No. 3. Therefore, we will withdraw it and reintroduce it on Report Stage. It should read "incapable of life outside the womb" not "capable of life outside the womb". That should have been picked up earlier.

The nub of my colleague's eloquent and important contribution to this debate is the definition of "the unborn". Why was such a narrow definition included in the Bill? Why was that necessary, particularly because it precludes from being dealt with such a barbaric and horrific treatment of Irish women with regard to fatal foetal abnormality. I heard the Minister's comments and response on this issue in the Dáil and the default answer is that we are just dealing with the X case judgment, but it does worry me. I do think the Minister and his Minister of State, Deputy Alex White, have compassion. The Minister of State's letter to The Irish Times a couple of days ago clearly showed empathy towards the women concerned, of whom up to 1,500 travel to England. We know that over 80% of the population are in favour of legislating for cases of fatal foetal abnormality and offering compassion to the women involved. We are bringing forward this amendment because of the ruthless exclusion by the Minister's Cabinet colleague, the Minister for Communications, Energy and Natural Resources, Deputy Pat Rabbitte, who said quite clearly on Sunday that this area would not be revisited in the lifetime of the Government. This might satisfy certain members of civil society, but it does not satisfy us. It shows a ruthless lack of compassion and interest in further debate which many other Members of the House would like to pursue. There is an argument that we should pass this Bill, as it stands, and that then there will be incremental momentum and we can consider issues such as rape, incest, fatal foetal abnormality and inevitable miscarriage. The signals are not there and for the Minister for Communications, Energy and Natural Resources to say what he did worries me. It gave me a chill.

In respect of the definition of the unborn and Senator Marie ouise O'Donnell's remarks about the D case, there are a couple of intriguing opinions and views that I would like to share with the Minister, some of which he knows already. One of the most intriguing is that, while the expert group spoke about the A, B and C case, it also spoke about the D case and acknowledged that in July 2006 the European Court of Human Rights had refused permission to hear that case on the grounds that the applicant, Deirdre Conroy, had not exhausted domestic remedies by bringing the case to the Irish courts. It stated:

In rejecting her application, the Court said that the X case had shown that Irish courts were capable of protecting individual rights by way of interpretation. It suggested 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 when the unborn suffered from an abnormality incompatible with life.

It was left hanging there, but Mr. Justice Ryan and the expert group clearly felt it should be included. It mentioned another case, Miss D v District Judge, HSE, Ireland and Attorney General:

A similar case, this time concerning a pregnant minor, came up in May 2007, when seventeen year old 'Miss D' brought a case against the Health Service Executive (HSE) when it tried to stop her travelling to Britain to have an abortion. Miss D was four months pregnant at the time of the hearing, and had learned that the foetus had anencephaly, a neural tube defect resulting in the absence of a major portion of the brain, which is usually fatal within three days of birth. Miss D had been in the care of the HSE for some months, but was refused permission to leave the State to have an abortion and was told that the HSE had notified the Gardaí that she was not permitted to leave the State. Unlike the C case in 1997, Miss D said she was not suicidal, although she was deeply traumatised by the fact that her baby had no chance of survival. The Court ruled that there was no law or constitutional impediment preventing Miss D from travelling for the purpose of terminating the pregnancy, and said that the actions of the HSE social worker in telling the Gardaí that Miss D must be prevented from travelling were without foundation in law. However, the Judge stressed that the case was about the right to travel alone; no comment was made by the Court about the substantive issue of abortion and as Miss D was not suicidal, the question of her having an abortion in Ireland was not raised.

The expert group is allowing a door to remain open for political leadership to take on an issue of human rights. The amendment is to give women a choice. Some women might decide to bring their pregnancy to full term, but others do not want to do this. That is very evident because many of them go abroad. We have heard traumatic stories, by which the Minister has been moved, having met and spoken, as we have, to some of the Termination for Medical Reasons group. It is an opportunity for the Seanad to implore further that this issue be dealt with. It is a political issue, not a legal one, on which I would like to hear the Minister's views.

Interestingly, the Irish Human Rights Commission, the National Women's Council of Ireland and the Irish Council for Civil Liberties and others give a sense that this is a political decision, not necessarily a legal one. The Irish Council for Civil Liberties alludes to the fact that, potentially, Ireland could fall foul of Article 3 of the convention. Obviously, it mentions the D case, but it also mentions that R.R. v. Poland and P. and S. v. Poland indicate that Council of Europe states are obliged to ensure that women seeking lawful terminations are not exposed to inhuman and degrading treatment contrary to Article 3 of the convention. Clearly, those women with fatal foetal abnormalities fall under that. Applying this principle in an Irish context, according to the Irish Council for Civil Liberties, it seems clear that the current treatment of women with pregnancies involving a defined set of fatal foetal abnormalities, that is, where it is clear that carrying a foetus to term will not result in a viable life, potentially falls foul of Article 3 of the convention. That is something on which I seek the Minister's view because it is political leadership for which we are looking here, to go beyond the X case and to call on the Government to acknowledge and express compassion for this barbaric and upsetting abuse of pregnant Irish women.

Although I will not go into it in great detail, the Irish Human Rights Commission also has a view, in probably more polite terms. It states that it is recommended that were the Bill unable to include provision for termination in cases of fatal foetal abnormality on foot of the current constitutional position, the question of further constitutional refinement be considered.

Our response to the Minister is twofold. We propose that the definition of the unborn be changed to a position where it allows the Minister to look at such cases. We propose: " "unborn", means a foetus which has reached that stage of development at which, if born, it would be capable of life outside the womb;". We are saying there is an opportunity to redefine what "unborn" means within the parameters of the Bill and that will give release and allow for fatal foetal abnormality.

The Minister will probably come back to me on the Attorney General document, but I want to hear his own view on this as well. We are not political grandstanding here. I am not a member of any political party. I do not know whether we will press this to a vote - Senator Marie-Louise O'Donnell and our team must discuss it. I want to hear the Minister's own political view on this as a medical doctor because that might give us a sense of leadership as well, and, certainly, refute the Minister, Deputy Rabbitte's, comments earlier on.

There are other amendments that have been grouped together for us which include rape and incest. Of course, this also was discussed in the Dáil and dismissed. Surely, as Senator Norris eloquently argued previously, as is included in our grouping, the notion that we should not trust a pregnant woman is repugnant to me. The idea that the pregnant woman will find herself in a position where her pregnancy is almost a disposable object is one in which I do not believe and with which I disagree. As a father of two children, both of whom are teenage daughters, if they were put in a position of incest or rape and there was a pregnancy, I am in a lucky position of being a middle-class person with a credit card who can afford, if the choice was required, to bring my daughters abroad. There is a poverty trap in this Bill whereby women who do not have the facility and who cannot go abroad, will be subject to vilification but also to the strong arm of the law with regards to imprisonment or punishment.

I support the amendments of Senator Marie-Louise O'Donnell and myself. I look forward to hearing the Minister's view on them.