I am pleased to have the opportunity to make this statement on the report of the expert group on the judgment of the European Court of Human Rights in A, B and C v. Ireland.
The reason for this debate - more than 20 hours have been set aside for statements to be taken in the Houses of the Oireachtas on this topic - is that the Government is committed to allowing all Members of the Houses the opportunity to make a statement on this issue. Time for this purpose has now also been provided in the Seanad, where a discussion will take place on Thursday afternoon. Following this discussion, the Government will make a decision before the Dáil goes into recess on the option to be pursued to implement the judgment in A, B and C v. Ireland. The public hearings to be held by the Joint Committee on Health and Children in the new year will give us a further opportunity to discuss the option for implementation that the Government will have chosen.
We are conscious that this is a sensitive issue and most of us hold strong personal views on it. However, it is important to bear in mind that the Government has consistently stated its commitment to implement this judgment of the European Court of Human Rights.
I must also reiterate that the Government is committed to addressing this issue within the confines of Article 40.3.3° of the Constitution and its interpretation by the Supreme Court in Attorney General v. X. As we all know, this case involved a 14 year old girl who became pregnant as a result of rape and was suicidal. The court deemed that, where it was established on the balance of probabilities that there was a real and substantial risk to the life, as distinct from the health, of the mother and that such risk could only be averted by the termination of her pregnancy, such termination was lawful. This included where there was a clear and substantial risk to the life of the woman arising from a risk of suicide.
Recent comments inside and outside of this House have addressed other unfortunate situations where pregnancy might arise cut of traumatic incidents such as rape or incest. At this juncture, these scenarios per se do not come within our constitutional and legal provisions and, therefore, were not and could not be addressed by the expert group or, indeed, by the Government through the implementation of the judgment of the European Court of Human Rights.
Before I move on to discuss the background to the report and its merits and implications, I wish to put on record once again my gratitude to the expert group, in particular to the honourable Mr. Justice Seán Ryan, for its commitment and dedication to this work and for the invaluable contribution it has made in bringing clarity to this complex and sensitive issue. While it is true that a number of other bodies have previously addressed the issue of how to provide for the X case, the House would agree that the report of the expert group presents with consistent clarity and lucidity the many complex issues that need to be resolved in order to bring clarity to the provision of medical treatment to pregnant women whose lives are at risk.
In December 2009, the European Court of Human Rights heard a case brought by three women in respect of the alleged breach of their rights under the European Convention on Human Rights in regard to abortion in Ireland. This is known as the A, B and C v. Ireland case. All of the applicants were women who unintentionally became pregnant and who travelled to the UK for abortions.
The European Court of Human Rights accepted that Article 40.3.3° of the Constitution, as interpreted by the Supreme Court, provided that it was lawful to terminate a pregnancy in Ireland if it was established as a matter of probability that there was a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by a termination of the pregnancy. This provision has not been altered by the judgment.
The court found that there had been no violation of their rights under the convention in respect of the first and second applicants, Ms A and Ms B, and it dismissed their applications, and that there had been a violation of the right to private and family life contrary to Article 8 of the convention in the case of the third applicant, Ms C. The court held that there was no accessible and effective procedure to enable her to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law. The court ruled 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.
The establishment of the expert group and publication of its report fulfil an important commitment in the programme for Government. The expert group was established in January of this year and its terms of reference were as follows: to examine the A, B and C v. Ireland judgment; to elucidate the judgment's 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.
The group was composed of experts in the fields of obstetrics, psychiatry, general practice, law, professional regulation and public policy. It met nine times from January to October and submitted its report to me on 13 November.
The expert group's report starts off by clearly indicating that, in order to stay true to its terms of reference, it would not recommend one particular solution for the implementation of the judgment in A, B and C v. Ireland, but would suggest a number of options. Sticking closely to its remit, it explicitly stated that it did not see it as its task to consider or recommend changes to abortion law in Ireland.
The expert group report then gives a clear and concise overview of the current legal provisions governing termination of pregnancy in Ireland and meticulously outlines the historical background to the legal developments that have taken place on abortion in the past 30 years.
The report then describes the judgment of the European Court of Human Rights in A, B and C v. Ireland and its legal implications. The report maintains: the State is under obligation to do the following:
A. Provide effective and accessible procedures to establish a woman's right to an abortion as well as access to such treatment.
B. Establish criteria or procedures in legislation or otherwise for measuring or determining the risk.
C. Provide precision as to the criteria by which a doctor is to assess that risk.
D. Set up an efficient independent review system where a patient disputes her doctor's refusal to certify that she is entitled to a lawful abortion or where there is a disagreement between doctors as to whether this treatment is necessary.
E. Address sections 58 and 59 of the Offences Against the Person Act 1861.
In essence, the expert group indicates that the State is under legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether they are entitled to a lawful abortion in Ireland. Furthermore, it asserts that: "It would obviously be insufficient for the State to interpret the court's judgment as requiring only a procedure to establish entitlement to termination without also giving access to such necessary treatment." The expert group then openly and explicitly presents the principles adopted in its deliberations and reflected in the proposals it puts forward for the implementation of the judgment. These are very clear principles and they are fully in line with our constitutional, legal, ethical and medical requirements. These are:
Principle 1. The entitlement to have the right to lawful termination of pregnancy ascertained should be established.
Principle 2. The State's constitutional obligations under Article 40.3.3° should be reflected in the options proposed to implement this judgment.
Principle 3. Termination of pregnancy should be considered a medical treatment regardless of whether the risk to the life of the woman arises on physical or mental health grounds.
Principle 4. It will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is clinically appropriate medical treatment.
I believe that these principles taken together provide a clear and humane framework on which to base the provision of lawful terminations of pregnancy in Ireland. Moreover, in adopting as one of its principles the constitutional obligation under Article 40.3.3° and reflecting its provisions throughout its report, the expert group has shown us that there are ways in which the right to life of the pregnant woman can be protected, while requirements are also put in place to ensure that due regard is given to the right to life of the unborn, and that the dignity of the foetus is respected in cases where this can be achieved without compromising the woman's right to life.
Therefore, although the report clearly supports the Supreme Court judgment in the X case as the correct criteria to assess whether a woman is entitled to a lawful termination of pregnancy, that is to say when there is a real and substantial risk to the life of the mother, and this risk can only be averted by the termination of her pregnancy, it also explicitly states that, as part of the test, the treating doctors will have to consider whether it is practicable to preserve the life of the unborn in the process of terminating the pregnancy without compromising the right to life of the woman, and evidence of this consideration must be documented. The report also rejects the arguments often put forward that the judgment in Attorney General v. X establishes a right to an abortion at any gestational age. The expert group argues that the judgment indicates that where a woman has a pregnancy that places her life at risk and her foetus is or may be viable, she may have a right to have the pregnancy brought to an end but not a right to insist that the life of her foetus be deliberately ended and that this approach also reflects an obstetrician's medical obligation to care for both of his or her patients, namely, the pregnant woman and the foetus. Therefore, for example, a pregnancy that has reached or is approaching viability could be terminated by early induction with appropriate neonatal care to follow.
The four principles outlined in chapter 5 underpin the detailed procedural options presented in chapter 6. This chapter illuminates possible avenues for the assessment of an entitlement to lawful termination of pregnancy in Ireland and for the delivery of this medical treatment. It discusses the possible qualifications of the doctors involved in the process, the number of doctors who would be responsible for reaching a decision, what their different roles might be, and the locations where terminations might take place. It also extrapolates potential exceptions to the process, such as in the case of an emergency or when dealing with conscientious objection. In addition, this chapter provides a lengthy discussion on a formal framework to review the initial clinical decision, which is one of the main requirements emanating from the judgment.
The expert group correctly emphasises that any system that would be put in place should be duly monitored. It indicates that from a clinical perspective there is a need to keep records on the number of women who might seek and be given terminations and the medical reasons that gave rise to such treatment. In addition, statistics are also required to inform policy, as well as to ensure that the legal and constitutional principles and requirements of the system are being upheld.
The final chapter of the report sets out four options for the implementation of the European Court of Human Rights judgment in the A, B and C v. Ireland case and these are: guidelines alone, regulations alone, primary legislation alone, and primary legislation coupled with regulations. It is those options that are now being considered and discussed by the Government and the Members of the Houses of the Oireachtas.
I take this opportunity to restate the Government's firm commitment to implement the judgment of the European Court of Human Rights in the A, B and C v. Ireland case and bring the required legal clarity to the issue of lawful abortion in Ireland. That does not mean abortion on demand. That is doubtless one of the most divisive issues in Irish society and yet we must try to discuss it in an even and calm manner. We must protect the life of the pregnant mother and yet vindicate the right of the unborn child. We must clarify what is available by way of treatment to the women of Ireland and clarify what is legal for the professionals who must provide that care. As a Government we are elected to act, and we will.