Ivana Bacik (Independent) | Oireachtas source

I commend Senators Marie-Louise O'Donnell, Fiach Mac Conghail and others on bringing forward these very important amendments. It is important that we are debating these issues in the House. I agree with colleagues that it is inhumane to require by law that women who are faced with the appalling diagnosis that they will not give birth to a live baby must travel abroad if they wish to have their pregnancy terminated. There are women in that situation who do not choose to have a termination and opt instead, after discussion with their partner and family, to bring the pregnancy to term. That choice must of course be respected. However, the fact that we do not allow women who would choose to terminate a pregnancy in those circumstances to do so in this country is inhumane. I would very much like to see us legislate for this. I join colleagues in paying tribute to Deirdre Conroy and the women in the Termination for Medical Reasons group who showed great bravery in telling their personal stories and describing the very difficult and traumatic situation in which they found themselves as a result of the law in this State.

It is outrageous that we force women in those circumstances to travel. It is likewise outrageous that we force women who have been raped or are victims of incest and wish to terminate a resulting pregnancy to travel. It is outrageous that women who face a real and serious risk to their health have to travel. The reality, however, as Senator Averil Power pointed out, is that the cause of this outrageous state of the law is the eighth amendment which was introduced in 1983. It is not the fault of this legislation, which is seeking to protect women's lives in a situation where a continuation of pregnancy puts their lives at risk. We know from the Supreme Court decision in the X case, as confirmed by that court in subsequent rulings and by the people in two referenda, that the only circumstances in which abortion is lawful in Ireland is where it is necessary to save a woman's life as distinct from her health. We cannot, under the Constitution, legislate for risk to health.

I share the legal opinion to which Senator Power and others referred that in accordance with the decision in the D case and the State's arguments therein, there is a very strong case to suggest it would be constitutional to legislate for a right to termination in cases of fatal foetal abnormality, simply because in those cases there is no prospect of viable life for the unborn and, therefore, the constitutional protection for the unborn does not apply or, at least, as far as is practicable, the State does not have a duty to vindicate that right to life. There is a very strongly arguable case in this regard. The State made that case in the D judgment, a judgment to which the European Court of Human Rights referred in its ruling in the A, B and C case. I authored a legal opinion, which was signed by a number of colleagues in the Labour Party and submitted to the Minister last year, asking that he consider inserting provision for fatal foetal abnormality in this legislation. I also put that case at the hearings of the Oireachtas Joint Committee on Health and Children in January and May.

I listened very carefully to the opinions of the legal experts at those hearings but I do accept that this issue is not yet constitutionally settled. That point is conceded in the report of the Irish Human Rights Commission. There is as yet no Supreme Court decision upholding the legal argument put forward by the State in the D case. If a case were sent to the court - I believe such a case is waiting to happen - I would expect the decision to be in favour of allowing legislation for termination in cases of fatal foetal abnormality. However, if one examines the wording of the constitutional text and what Gerard Hogan argued at the European Court of Human Rights, it seems clear that where there is a prospect of even a few minutes of life for the unborn child outside the womb, then provision could not be made in law for a termination of that pregnancy. There would have to be a very clear medical prognosis that there was no prospect of viable life outside the womb. It is a very extreme situation and it is appalling that we cannot legislate for it. The reality, however, is that including it would render the legislation less constitutionally robust. Even as somebody who has argued strongly for its inclusion, I accept that provision in this regard would require a referral of the Bill under Article 26. It would certainly make it less constitutionally robust than in its current form, which is conservative, restrictive and clearly within the terms of the 1983 amendment and the Supreme Court decision in the X case.

The right to a termination in cases of rape, incest and risk to health is a separate issue.

Much as I and others would like to see that legislation, we cannot do so within the terms of the X case and, more particularly, the 1983 amendment. There is an issue in this regard for us. Some 4,000 women a year travel to England for an abortion on the grounds provided for under the UK Abortion Act 1967. We cannot legislate in the same sort of way as that Act or even for more limited grounds, such as rape or incest, without the repeal of the eighth amendment. As a legislator acting within the Constitution, I accept that. I urge colleagues to support this Bill as it reflects what we can do constitutionally. Within the current state of settled law, it will provide protection for the right to life of the woman in the most extreme circumstances. I think we will see further cases taken on the issue of fatal foetal abnormality, which will settle the law on that. However, I accept that area is not settled currently.