Thursday, 12 July 2012
European Court Judgment
I welcome the Minister to the House. This Adjournment matter concerns the question of whether the expert group established to examine the options available to the Government in responding to the European Court of Human Rights decision in A, B and C v. Ireland case is clear that the judgment does not require Ireland to introduce abortion in either a regulatory or statutory form and that the group knows it is free to recommend options that do not require the performance of abortions in Ireland.
I raise this matter because legitimate concerns have been raised about the attitude the Minister for Health appears to have taken in recent debates. Prior to the last election, Fine Gael gave commitments that everyone would support. According to a recent Millward Brown Lansdowne opinion poll, 80% of respondents agreed with the proposition. The Fine Gael commitment was that it would ensure all necessary medical treatment for women in pregnancy, while the duty of care to preserve the life of the baby would always be upheld. It is an attractive proposition because it guarantees the best medical care for women in pregnancy but also the duty of care to the unborn.
The Minster for Health appears to be under the impression the judgment requires Ireland to introduce abortion into Ireland either via regulation or statute. Why do I say that? It is obvious from the Minister's response to citizens' queries on the issue and from his statements in the Dáil during the debate on Deputy Clare Daly's Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill. We need to be clear on the point that nowhere does the A, B and C v. Ireland judgment mention or require Ireland to introduce abortion. In that instance and in many others, the court has said there is no such thing as a right to abortion under the European Convention on Human Rights. If the expert group or the Minister were to ignore this basic legal fact, it would be both a damning indictment of their attitude to unborn human life and would misrepresent the law with the effect of heralding abortion in Ireland. The court has required that our constitutional position is reflected in what would then happen. It remains open to Ireland to determine its precise constitutional position.
More worryingly, in his correspondence and in his Dáil speech on the Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill, the Minister seems to be pre-empting the expert group's presentation of options. Everything he said on the matter seemed to indicate his intention to bring abortion into Ireland in some form. He has not on any occasion mentioned the right to life of unborn children or the duty of care to which I referred. He seems to assume that introducing abortion in line with the notorious X case would require a very limited abortion regime when the opposite is the case. The Supreme Court decision in the X case in 1992 did not stipulate any time limits and did not hear from any psychiatrists. The endorsement of a threat of suicide as a ground for abortion is medically highly questionable but paves the way for the practice of abortion on demand in Ireland.
The Minister said he must introduce regulation or legislation in line with the X case. He failed to reflect on the fact that, if anything, in the knowledge we have gleaned since the decision in 1992, nowhere is there evidence that abortion is in anyway therapeutic on mental health grounds. The question people are asking is in what precise circumstances does abortion act as a causative factor with adverse mental health sequelae in women. This is an important issue that must be explored.
We find ourselves with a judgment from the European Court of Human Rights but we have experience in Ireland and we have learned an awful lot in the past 20 years. Were we to legislate for the constitutional position, we could not but introduce abortion, in effect, on demand on the basis of the threat of suicide as grounds. The concern that many people have, including myself, is the perception that the expert group, in light of what the Minister said, may come back with a narrow list of options, all leading to abortion when there are many different options. What must be explored with the European Court of Human Rights is whether Ireland would be better off not introducing legislation rather than legislating in line with the Supreme Court decision that is highly problematic, especially in light of what we know about abortion and issues of mental health. Another important principle is that, whatever we come up with, the Irish people must be asked to sign off on what is proposed. This is a basic democratic principle, particularly on an issue so sensitive.
During a previous coalition Government, the former Fine Gael Party leader and former Taoiseach, John Bruton, was asked whether he would legislate in line with the 1992 decision of the Supreme Court he said that he would not. When asked why by the journalist on "Six-One", he said that it would have the effect of bringing abortion into Ireland. We need to keep our best traditions. We do not have a medical problem but a legal problem. We have the best medical care for women in the world in terms of maternal mortality but we need to make sure the expert group does not come back with a narrow series of options, all of which point in the direction of legislating for a flawed Supreme Court decision.
I thank Senator Mullen for raising this matter. I apologise that the Minister for Health cannot be here. Abortion in Ireland is prohibited except where it is established, as a matter of probability, that there is a real and substantial risk to the life of the mother and that this risk can be averted only by the termination of her pregnancy. Following the ruling in the X case, this risk to the life of the mother includes the risk of suicide. In 2009, the European Court of Human Rights heard an application by three women that it is a breach of their rights under the Convention for the Protection of Human Rights and Fundamental Freedoms for the Irish State not to provide abortion in certain circumstances. This is the A, B and C v. Ireland case to which Senator Mullen referred.
The court found no violation of the convention in regard to the first and second applicant - Ms A and Ms B. However, the court determined that the rights of Ms C had been violated under Article 8 of the convention. The judgment of the court confirmed that Article 40.3.3° of the Constitution is in conformity with the European Convention on Human Rights. Article 40.3.3°, as interpreted by the Supreme Court in the X case, means it is lawful to terminate a pregnancy in Ireland if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only avoided by a termination of the pregnancy. The court did, however rule, that "no criteria or procedures have been ... laid down in Irish law ... by which that risk is to be measured or determined, leading to uncertainty" and held that further legal clarity was required. Ireland has signed and ratified the European Convention on Human Rights and Article 46 of it states that signatories agree to abide by any judgment of the court in any case to which they are parties. Ireland is, therefore, under a legal obligation to implement the judgment of the European Court of Human Rights in A, B and C v. Ireland.
In January, the Government established an expert group to recommend a series of options on how to implement the A, B, and C v. Ireland judgment. The terms of reference of the expert group, as approved by Government, are to examine the A, B and C v. Ireland judgment of the European Court of Human Rights, to elucidate its implications for the provision of health care services to pregnant women in Ireland, and to recommend a series of options on how to implement the judgment taking into account the constitutional, legal, medical and ethical considerations involved in the formulation of public policy in this area and the overriding need for speedy action. I assure the Senator that the expert group is fully aware of its remit. The Minister for Health, Deputy Reilly, is confident the group will fulfil its task efficiently.
I thank the Minister for his response, which is legally flawless. I contrast the response of the Minister, Deputy Hogan, with what was said in the Dáil, to the effect that Ireland must introduce legislation in line with the Supreme Court decision. The Minister has not so erred and I take it as reassurance that his contribution is more legally clear and correct than what was said in the debate in the Dáil on the legislation to which I referred.