It is a great honour and privilege to be among the committee members. I was delighted to be here last January and it is a privilege to be here again today. It is the third day of the committee's deliberations, second time around, as it were, so I will not weary the committee with a reiteration of points the committee will have heard many times before. However, in the few minutes I have I would like to concentrate my opening remarks upon the suggestion by the Taoiseach that it is a necessary requirement that we introduce legislation to deal with the European case and, specifically, that we introduce legislation in accordance with the X decision, the Supreme Court decision. I wish to challenge both of those propositions and I hope we will have an opportunity during questions to address in more detail the points that I would wish to make on those two points.
First, do we need to implement the X case through legislation as a result of the European Court of Human Rights decision? The answer is emphatically "No". If one listens very closely to the Government, it will concede that point. No legal argument has been put forward that I am aware of which argues that we are legally obliged as a result of the A, B and C v. Ireland decision, to implement that decision simply through the process of legislation. There are many other ways that we can implement that decision. What that decision requires is clarity in the law and also an assurance that if an individual, a woman who is seeking an abortion, gets a "No" that she has some system whereby she can, as it were, appeal that decision to get a second view or second opinion on the matter. Essentially, that is what the European Court of Human Rights requires. It does not require us to implement the X case decision and it does not require us to take any position whatsoever in terms of constitutional law as regards the fundamental policy of the State. I will say more on that matter at a later stage but it is a crucially important point because it means that the Oireachtas, far from being constrained into having to introduce this legislation, actually has a range of options to introduce clarity into our law.
The second point I make by way of a side-point. When one actually reads this legislation it is clear that it does not introduce one ounce of extra clarity into the law in the sense of actually giving specific medical content to decisions that doctors have to make. Doctors have to make decisions every day in the context of pregnant women, but also in the context of non-pregnant women and men. They make judgments about medical treatments. The committee members will note when they read this particular Bill that it does not contain the details of medical treatment. Rather, it contains a principle which was already there, a principle which is contained in the amendment itself, that is, in Article 40.3.3° of the Constitution.
The third point I wish to make is that the Supreme Court decision, of course, represents the law of the country. It gives the authoritative constitutional interpretation of this country. Of course it is true to say that one cannot defy a Supreme Court decision, which is part of the law of the land. However, that is only the beginning of legal analysis rather than the end, as the Government would suggest. This is because sometimes the courts get things wrong. Sometimes the courts get things in ways that frankly are either out of sync with the science or out of sync with fair, reasonable values. In this particular case, the decision of the Supreme Court over 20 years ago sadly got it wrong on the science, on the medicine, on the psychiatry and also in terms of a fair human rights protection.
This is because what the Supreme Court did in that case, as the committee is aware, was to authorise the intentional taking of the life of an innocent human being during pregnancy on the basis of suicidal ideation. We would immediately reject that proposition in respect of any other human being, a born human being, for example, however pressing the circumstances, and we can think of very pressing circumstances where suicidal ideation might occur as a result of a close dependency relationship in regard to people who have been born. That proposition is unstatable, unthinkable in regard to children who have been born. However, the Supreme Court embraced that proposition as an interpretation, a wrongful interpretation, we would suggest, of Article 40.3.3° in the decision. Therefore, far from being a decision that the Oireachtas must follow, I would respectfully say it is a decision that the Oireachtas must not follow, because if the Oireachtas were to introduce that decision into law through legislation, it would be introducing bad medicine, bad psychiatry and a violation of human rights. It is absolutely not the way for the Legislature to go.
What are the options for the Oireachtas in these circumstances? The first thing the Oireachtas can contemplate is simply in the exercise of the separation of powers and in the exercise of the legislative powers of the Oireachtas so as not to make the mistake of going down the wrong scientific route and the wrong route as far as human rights protection is concerned. It is the entitlement and the prerogative of the Legislature not to implement a bad law. Would that put the Oireachtas in conflict with the Supreme Court decision? Not necessarily, as it happens, because the Supreme Court decision decided the case on the basis of the facts as presented to it. As the committee is aware, the facts as presented to it did not involve any expert psychiatric evidence from a psychiatrist, none at all.
In other slightly less contentious or controversial cases the Supreme Court has accepted that it makes judgments on the basis of the evidence presented and it does not purport to have the last scientific word. If I may, I will mention a case to the committee. It is a case that some committee members may remember, namely, Best v. Wellcome Foundation, which involved the question of whether a vaccine had caused brain damage to a little boy. The Supreme Court came to the conclusion in that case that the vaccine had caused damage to the plaintiff. In that case the then Chief Justice, Mr. Justice Finlay, made it plain that when it comes to a decision on a scientific matter it was not purporting to make a final scientific or authoritative scientific judgment. Rather, it was simply making an adjudication on the basis of the evidence presented to it. In that case there was a very understandable and appropriate judicial modesty as to the court's role in regard to matters of science.
We now come forward 21 years. The committee has heard the evidence from the psychiatrists. The committee has heard that to introduce this particular ground would be highly controversial from a psychiatric point of view. The science has not been with the Supreme Court over the past 21 years, but that is not its fault. It received no scientific evidence and no psychiatric evidence. As I will stress to the committee during the questions and the discussion, there is no obligation to implement the Supreme Court judgment as it articulated that principle in the context of the facts in that case. The Legislature is perfectly entitled and, I would suggest to the committee, absolutely obliged in conscience on the basis of human rights protection not to go down that route.
I wish to point to another aspect of the X decision, the Supreme Court decision which the Government is very unwilling to talk about. I have been watching, listening and waiting to hear a considered analysis from any Government member during the past six months - indeed, I put it to the committee, any Government member in the past 20 years, but that is another matter - but specifically now as we are actually putting forward legislation. I would love to hear the Government case in the context of an issue that has arisen. Indeed, it is an issue that has always been asserted by the pro-life campaign, namely, that the Supreme Court decision in the X case does provide for abortion during the nine months of pregnancy. It sounds like a horrendous and horrific proposition. One must ask would the court, if it actually had to address the matter again, take that particular position in terms of its normative preference? Who knows? The actual normative preference, the way the court approached the issue of suicidal ideation in the X case is as follows: essentially, it stated that if a woman is suicidal in circumstances that the only solution is to terminate the life of the child, one terminates the life of the child.
I refer the committee to the general principle stated by the then Chief Justice, Mr. Justice Finlay, in paragraph 36 of his judgment.
The Government is saying it does not actually mean that, that it actually means just simply terminate the pregnancy. A number of the judges talked about termination of pregnancy and the then Chief Justice, Mr. Justice Finlay, did so in the following paragraph, paragraph 37. There is nothing in that case to support, and no fair reading of it would support, the argument that it means that the Supreme Court has a sophisticated view that when viability occurs, it will protect the life of the unborn child. The notion of practicability in those circumstances, to do what is practicable to save the life of the child, might not be sufficient in the case of a particular suicidal ideation.
Psychiatrists say that these hypothetical suicidal ideations can be better dealt with by other means, but let us assume for a moment the hypothesis of head 4 of the Bill. It is premised on the fact that these cases do arise and in that context it is not fantastical to put forward a proposition where a woman says, and the psychiatrist believes, that the very existence of her child is in itself a source of suicidal ideation for her. She is not concerned about the pregnancy per se, she does not just want to get this child relocated elsewhere out of her body. The very existence of that child, for some particular circumstances associated perhaps with the child's conception or the circumstances of the child's health - we can fill in our own hypothesis on that - is the reason that woman wants to kill herself. In those circumstances, removing and relocating the child geographically outside her body unfortunately will not remove the suicidal ideation. I suggest that the principles on which the X case was decided in that situation will allow for the termination of such a child in late pregnancy.
Let us imagine if we were to heed what the Government says in this area. To the extent that it has said anything, the essence of what it has said is that there is nothing to worry about because we will do our best to save the life of the child. At what point are the psychiatrists entitled to stop saying, "Please terminate the life of the child", and at what point are they obliged to say, "Please do your very best to keep this child alive"? The Government is totally silent on that point. For example, if we imagine a situation at 21 weeks of gestation, what is the situation in terms of the psychiatric edict? Is the psychiatric edict to terminate the life of the child, not to terminate the life of the child, to give birth in those circumstances or induce a birth at an early stage and do what one possibly can for the child who may well suffer disability at this particular stage? These are not theoretical or academic questions. These are very real consequences of the legislation. It is not attributing any bad faith to anybody, not to the Supreme Court or to the Government of the day, but it is to suggest that the thinking on this particular point has not gone as far as it should. Frankly, the unthinkability of late abortion, which I think would be shared by probably all Members in this room, is also qualified or enhanced by the unthinkability of the taking of an innocent life in the earlier stages of pregnancy. The general principle which the Supreme Court adopted in the X case is a principle that is not acceptable for legislation.
I will conclude my remarks by saying that the two points I wish to stress to the committee are, first, there are other ways that the Legislature can go which would be entirely compliant with the European Court of Human Rights and, second, to implement the X decision would be a disaster in term of human rights protection and contrary to science and good medicine.