Report of the Expert Group on the Judgment in the A, B and C v. Ireland Case: Statements

Minister for Health (Deputy James Reilly)

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. Following this discussion and before the Dáil goes into recess, the Government will make a decision 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 the matter. 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 is 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 is 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 this House have addressed other unfortunate situations where pregnancy might arise from traumatic incidents such as rape or incest. At this juncture, these scenarios per se do not come within our constitutional and legal provisions unless they give rise to a real and substantial risk to the woman's life. These scenarios, 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 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 of the European Court of Human Rights; 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 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 describes the judgment of the European Court of Human Rights in A, B and C v. Ireland and its legal implications. It maintains that the State is under an obligation to: (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; and (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 a 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 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. They 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.

Taken together, these principles 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 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.

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 where 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 be obliged 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 that 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 this judgment indicates that where a woman has a pregnancy that places her life at risk and where her foetus is or may be viable, she may have a right to have the pregnancy brought to an end but she does not have 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; regulations; primary legislation; and primary legislation coupled with regulations. It is these options that are now being considered and discussed by the Government and the Members of the Houses of the Oireachtas.

I take the 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 to bring the required legal clarity to the issue of lawful abortion in Ireland. That does not mean abortion on demand. This is doubtless one of the most divisive issues in Irish society, 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 what is legal for the professionals who must provide that care. As a Government, we are elected to act and we will.

Senator Marc MacSharry

I welcome the Minister. I also welcome the opportunity to make some remarks on this most difficult issue which has always caused problems for society in this country.

I was relatively young in 1983 but I recall the debates which took place on this matter at the time. This issue has also been the subject of debate on a number of occasions since. There is no doubt that the debate on it divides society. The position in that regard is no different among the parties, Independent groups, etc., in these Houses. The expert group has done a good job and I thank it for the work it has done in putting forward a number of clear and thorough options. I accept that many of us may differ on what are the correct options.

I do not wish to get political but people often state that no action has been taken in respect of this issue. While the issue may still remain to be dealt with in the context of the X case, of A, B and C v. Ireland and so forth, much did happen during the past 20 years. All parties in the Oireachtas participated in the process in this regard. That process gave rise to the introduction of the Green Paper, the deliberations of and report issued by the all-party committee - which received tens of thousands of submissions on this matter - the establishment of the Crisis Pregnancy Agency and the introduction of legislation and the holding of a referendum in 2002. Despite all of these developments, problems still remain.

As the Minister indicated, this is a hugely personal issue for most people and we all have our own views on it. I have three children, I am married and was raised in a Catholic environment and attended a Catholic school.

My personal position on the question of abortion is that I have always regarded myself as someone who is pro-life and against abortion on demand. However, if there was even a remote threat to the health or life of my wife, daughter or niece or our neighbour, I would want whatever best medical practice could offer. I may not be sufficiently well read on this subject and legal and medical experts can argue against each other without coming to a conclusion or consensus. In my ignorance or in reality, I understood the medical position in Ireland was that if there was a threat to any of the people mentioned - my wife, daughter or niece, or my neighbour - it would and could be dealt with.

The circumstances of the case of Savita Halappanavar appalled all of us, in particular the suggestion she had lost her life as a result of being unable to receive sufficient treatment. This is a very serious issue and two investigations are being carried out by the HSE and the HIQA. We look forward to the outcome of these reports. At this late stage and to follow on from what my party leader said in the other House, I ask if an independent inquiry in the interests of the family and everyone involved could be initiated. None of us knows for sure what happened in the case. Once there is clarification, action will need to be taken. I had presumed that the application of best medical practice would ensure my wife or daughter would be safe. I want that to continue to be the case. If the obstetricians and gynaecologists request a proper legal framework to facilitate them in their professional work and ensure women are protected during pregnancy, we must provide that framework. This may be a difficult process for the Houses, but that is the burden of the legislative process and the responsibility that comes with being Members of them. I am not a legal or medical expert, but I would like to think existing medical guidelines provide the basis for certainty and clarity in response to the judgment of the European Court of Human Rights.

A recent opinion poll warrants a mention. There is overall agreement that the life and health of the mother must be protected. This view does not divide us. I do not believe two thirds of the population would want abortion on demand in this country. I would not want such a system. My view is based on personal morality that comes from within rather than from the influence of a Catholic upbringing.

Suicide is a very difficult issue. As a nation, we have always taken the wrong approach to it. We have paid lip-service in the provision of resources to combat the issue. Until we adopt the correct structural approach, the blindfold will remain in place. We need one well resourced agency with the power to take the initiative. I use the analogy of the Road Safety Authority. For many of us, suicide is a mystery wrapped in a riddle or an enigma. Society is failing those who regard suicide as the only option if others are not available. However, the threat of suicide as a legitimate reason will create the reality of abortion on demand, which would not serve my viewpoint well. There are very difficult days and there are difficult decisions ahead. However, the health of a mother must come first and if legislative action is required to assist in this regard, let it be done. I run into trouble on the issue of suicide and know that this view differs from that of others, but I hope they will take my sincerity into account in this regard.

Senator David Norris

Will the Minister provide a copy of his speech? I was unable to be present when he spoke. It would be helpful to read his speech.

Acting Chairman (Senator Paul Bradford)

We will attempt to resolve the matter for the Senator. Some copies are available. We will supply the Senator with a copy presently.

Senator David Norris

I thank the Minister for his courtesy.

Senator Colm Burke

I welcome the report published by the expert group under the chairmanship of Mr. Justice Seán Ryan. We must introduce legislation together with regulations. This is one of the options set out in the report.

I wish to outline my position as clearly as possible. I might bore some listeners in quoting case law in support of my argument, but this legislation would not introduce abortion on demand.

It would provide the clarity that is urgently required in this area. The expert group, as the Minister outlined, consisted of people with expertise in the medical, legal and administrative fields. The European Court of Human Rights in the A, B and C v. Ireland case confirmed that Article 40.3.3° of the Constitution is not inconsistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The court found that there had been no violation of the rights of Ms A and Ms B under the convention and it dismissed their applications. It found, however, that there had been a violation of applicant C's right to private and family life contrary to Article 8 of the convention. The court held that there was no accessible and effective procedure to enable her to establish whether she qualified for a lawful termination of a pregnancy in accordance with Irish law.

As a result of the judgment the Government established the expert group to advise on how to implement the judgment of the European Court. The expert group was asked 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 expeditious action.

In the case of Attorney General v. X, otherwise known as the X case, the Supreme Court held that the Constitution permitted abortion in certain limited and particular circumstances, namely, where there was a real and substantial risk to the life of the woman which could only be removed by terminating the pregnancy. The case in which the judgment was given concerned a girl of 14 years of age and the threat to her life was from suicide. After the judgment in that case, two referendums were held which tried to remove suicide as a ground for abortion and in both of these referendums the proposal was defeated. Therefore, as we stand the X case decision is the law of the State as declared by the Supreme Court. It has been binding on all of the courts for more than 20 years. In that case, the Oireachtas was severely criticised for not putting in place the appropriate legislation. When legislation is not in place, the courts are called upon to interpret the Constitution.

In McGee v. Attorney General in 1974, prior to the change to the Constitution in 1983, Mr. Justice Walsh, when referring to the Constitution and the changes that can occur, said:

According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.

In the State (Healy) v. Donoghue, Mr. Justice O'Higgins said:

In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.

Many people have the idea that the Constitution is written in stone and that there is a set interpretation from time immemorial in respect of each article and each subsection. These quotes clearly show that the courts have a different view. Therefore, those who are opposed to the introduction of legislation need to understand and study these judgments and the judgments of many other cases down through the years. Article 40.3.3° includes the words "guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." When that amendment to the Constitution was adopted in 1983 it imposed an obligation on the Oireachtas to put in place legislation and for more than 30 years that issue has not been faced up to. Twenty years have passed since the X case. In that case Mr. Justice McCarthy set out clearly his criticism of the Oireachtas when he said:

The guarantee to the unborn was qualified by the requirement of due regard to the right to life of the mother and made less than absolute by recognising that the right could only be vindicated as far as practicable. The guarantee was secured by the commitment of the State in its laws to respect and by its laws to defend and vindicate that right.

He went on to say:

I agree with the Chief Justice that the want of legislation pursuant to the amendment does not in any way inhibit the courts from exercising a function to vindicate and defend the right to life of the unborn. I think it reasonable, however, to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled.

In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan's case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable.

That was his judgment 20 years ago. He went on to say:

What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction.

Acting Chairman (Senator Paschal Mooney)

The Senator's time has expired.

Senator David Norris

Flexibility was allowed by the previous occupant of the Chair.

Acting Chairman (Senator Paschal Mooney)

I thank the Senator for his kind intervention, but I was indicating to the Senator that his time had expired, and he can then act accordingly.

Senator David Norris

I sometimes-----

Acting Chairman (Senator Paschal Mooney)

As the Senator is excellent at giving guidance, I am sure he will appreciate my feeble attempts.

Senator David Norris

They are even better.

Senator Colm Burke

I thank the Chair for the notification. The Supreme Court's decision 20 years ago set out the view that there was a need for legislation. I believe this is the way forward, but it is not legislation which allows abortion on demand. It is a question of establishing legislation to follow through on the amendment passed in 1983. The way forward is through legislation and regulation and there is a certain timeframe in which to put them in place. We must all make a contribution on both sides of the argument. It is a question of planning. We must not put the issue on the back burner for time immemorial.

Senator Fiach Mac Conghail

I welcome the Minister to the House to discuss the outcome of the report of the expert group on the judgment in A, B and C v. Ireland case. I welcome the fact that the debate has been scheduled so close to the report's publication in order that members can contribute to what is undoubtedly a sensitive, demanding and emotive constitutional issue.

In accepting my nomination by the Taoiseach, I knew there would be days such as today when I would make a public contribution on the floor of the Seanad on a matter of personal interest to women and of national importance to society. The purpose of the Seanad in theory - I hope it is exemplified today in practice - is to have a calm, measured and reasoned debate on a broad range of issues, including this difficult debate on abortion. All of us in the House - I have witnessed this in the past 18 months - have shown an extraordinary and diverse range of expertise and engagement and I trust that today will be no different in the quality of our debate.

I have read the report from cover to cover. The expert group was chaired by Mr. Justice Seán Ryan, the same man who published the Ryan report, and he has brought the same clarity of thinking to bear on the report of the expert group. I would recommend to anyone who is listening and interested in this issue to read it, as it conveys in clear language the complex legal issues involved. It reads:

It is 30 years since the 8th Amendment was enacted following a bitter political debate and amid controversy about the meaning and effect of the new constitutional provision. It is 20 years since the Supreme Court came face to face with the issue in the urgent and fraught circumstances of the X case. The Supreme Court by a 4-1 majority allowed a child to have an abortion in the rare and extreme circumstances that arose. The Court interpreted the Constitution and specifically the newly inserted Article 40.3.3°. That decision has remained controversial.

That is the clarity the report offers. It is in language that is not from any professional perspective or persuasion, which is welcome. Ultimately, it carefully describes the 20 years of inaction by the Oireachtas and the failure of the Legislature to put in place a formal system of guidelines, regulations or legislation arising from the Supreme Court's decision in the X case. The lack of action by the Oireachtas in implementing the decision in the X case is a source of disappointment and has created legal uncertainty. No matter what side of the debate we may be on, I am sure that, as Members of the Oireachtas, we can all agree that inaction is bad governance which, in turn, leads to ambiguity and perpetuates the nod and wink culture that has been so pervasive in Irish society.

In chapter 3 the report contextualises the historical legal journey from 1861 to 2009. It includes the Offences Against the Person Act 1861, the eight amendment of the Constitution of 7 October 1983, the X Case in March 1992, the 13th and 14th amendments of the Constitution of 23 December 1992, the Constitution review group's report of November 1996, various updated and revised Medical Council guidelines, the Green Paper on abortion in 1999, the all-party Oireachtas committee on the Constitution in 2000, the establishment of the Crisis Pregnancy Agency in 2001 and the 25th amendment of the Constitution of 6 March 2002 on the protection of human life in pregnancy, whereby a threatened suicide would be excluded as a risk to the life of the mother, thus limiting the judgment in the X case. This was defeated.

In December 2010 the European Court of Human Rights, after hearing the case which had been brought by three women known to us as A, B and C, found that there was a violation of C's right to a private and family life, contrary to Article 8 of the European Convention. The court held that there was no accessible and effective procedure to establish whether C qualified for a full termination of pregnancy in accordance with Irish law. The expert group has given the Government and the Oireachtas advice on how to implement the judgment of the European Court of Human Rights, in other words, "How to give effect to existing constitutional provisions".

I am mindful of my privileged position in the Seanad, as I am able to offer my view, respond to the legal uncertainty and participate directly in the democratic process. I am also mindful that in a sovereignty, such as we in Ireland enjoy, it is our duty, as legislators, to give effect to the will of the people who have spoken on the issue in three separate referendums, two of which expressly related to the question of suicide. When I read the report over the weekend, I had to clarify my own thoughts as a man, father, partner, Irish citizen and legislator. After careful consideration and with some reluctance which I shall explain, I am in favour of legislating and providing regulations to provide for the lawful termination of pregnancy by providing primary legislation and regulations to enact the X case criteria.

The history of legislative activity which I listed includes the 1861 Act. There seems to be a contradiction between Article 40.3.3° of the Constitution, as interpreted by the Supreme Court in the X case, and sections 58 and 59 of the 1861 Act. The report states that as long as sections 58 and 59 remain in force, with their absolute prohibition on abortion and associated serious criminal offences, there will continue to be a lack of certainty for a woman seeking a lawful abortion in Ireland. In its judgment in December 2010 the European Court of Human Rights stated the Act "would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under this Act". I ask the Minister and as suggested by his ministerial colleague, Deputy Alan Shatter, that in legislating for the X case criteria we repeal the 1861 Act.

Although outside the scope of the report of the expert group, it would be remiss of me not to take the opportunity to make a short comment on the differences between a substantial threat to the life as distinct from the health of a woman. I stand before Members as a feminist and as a feminist, I believe in equality. To me, that means equal access to the highest attainable standard of health care. Whatever decision is taken by the Government on implementing the judgment of the European Court of Human Rights, in its limited scope, it still enshrines an inequality in Irish law. By failing to legislate for abortion in the face of a substantial threat to the health of a woman and in cases of pregnancy resulting from rape and incest, women in Ireland remain second class citizens. Rape and incest are crimes against women. Should a woman become pregnant because of a crime committed against her by a man, I would support giving her a choice, with appropriate and regulated medical advice, to terminate the pregnancy. My conscience dictates that I do not have the right to intervene as a man or a legislator.

I object to some of the terminology I have heard in recent discourse but not in this House on the abortion issue, particularly the idea expressed by some that there are only two camps to fall into - pro-life or pro-abortion. Let me be very clear that I am pro-life. I am pro-family. I am pro-women in being ready, willing and able to have children. I am pro-women and girls not conceiving as a result of rape or incest. I am pro-viable pregnancies without serious chromosomal and fatal foetal abnormalities. I am pro-pregnancies that do not threaten the health and well-being of pregnant women and girls. Where tragically these cases do arise, I am pro women's right to choose what is in their own best interests. It is the woman who is best placed to make a decision on her own reproductive health and rights, not the legislator. I urge the Minister to adhere to the deadline the Government has set itself and proceed to legislation to fulfil its legal obligations to Irish women.

Senator Ivana Bacik

I welcome the Minister and the opportunity to speak about the expert group's report on the judgment in the A, B and C case. I thank him for his very clear outline of the circumstances behind the report and its content. I share his view that the expert group deserves commendation and praise for its work. I also thank him for clearly stating the Government's commitment to act on the report and setting out a timeline.

Like Senators Colm Burke and Fiach Mac Conghail, I believe legislation and regulations offer the best option. It is the option the Government must choose, in all conscious, before the end of the Dáil term on 20 December. A reading of the expert group's report will lead one to the conclusion that that is the preferable option. As the Minister said, the expert group does not recommend any option, in particular, but it does set out the position that legislation plus regulations would be an implementation option "that would be constitutionally, legally, and procedurally sound". For a number of reasons, primary legislation would be required, not least to deal with the "chilling effect" of the 1861 Act - the criminal provisions on abortion - to which Senator Fiach Mac Conghail referred. As the expert group pointed out, this is a very important consideration. As others said, passing legislation of this nature would not in any way provide for abortion on demand, far from it. It would simply provide legal clarity on the current position under the law under Article 40.3.3° of the Constitution. This means that abortion is legal, where necessary, to save a woman's life. It is a very limited form of abortion. It does not cover the risk to a woman's health, cases of rape, incest or fatal foetal abnormality.

As a feminist, like Senator Fiach Mac Conghail, I would describe myself as being pro women's right to choose and would like to see the law go much further. However, I accept that we must operate within the Constitution under Article 40.3.3°. Given that we must operate within this constraint, it is long overdue for us to pass legislation to bring legal clarity to the issue.

As stated by other speakers, we are having this debate at a time when there is enormous public disquiet and outrage at legislative inaction to date on the death of Savita Halappanavar. Her death has highlighted the lack of legal clarity over when a doctor may intervene to terminate a pregnancy which poses a risk to a woman's life. As we have heard since that very tragic case was brought into the public domain, there is a grey area for doctors. Like Senator MacSharry, I am a parent. I am the mother of two daughters. I do not want to see a grey area around the lives of women in this way. It does render women second-class citizens. I am unhappy about this, and also about the fact that we are still operating under provisions from 1861, which has a chilling effect for doctors.

Senator Colm Burke rightly quoted the late Mr. Justice McCarthy in his Supreme Court judgment in the X case. His questions have had particularly poignant resonance since the tragic death of Savita at the end of October. Mr. Justice McCarthy stated that the failure by the Legislature to enact appropriate legislation clarifying the conditions when doctors may intervene is inexcusable. He also asked what are pregnant women in the medical profession to do. Twenty years later, it is long overdue that we move to legislate. The expert group has carefully and comprehensively set out the legal context in which we now have this discussion and the clear blueprint for the necessary legislation. The Minister has pointed out that this does not change the law but clarifies it. The report points out that the State must render effective a right already accorded, and confirmed in two referendums, by Article 43.3 of the Constitution as interpreted by the Supreme Court.

The report deals with a number of contentious issues. The Minister has pointed out that it deals with the issue of time limits, pointing out that a pregnancy may be brought to an end to save a woman's life without necessarily terminating the life of the foetus where it is or may be viable, which addresses that issue. The report also deals with the second issue of suicide risk, raised by some commentators. It again sets out in a clear and practical way how suicide risk may be provided for through legislation and regulation. Where the risk to life arises from suicidal ideation the report points out that the diagnosis of expressed suicide intent is a routine process for psychiatrists. As such one of the clinical decision makers provided for could be required to be a psychiatrist in such a case.

The X case sets out a clear test. We cannot legislate for just a part of that case. As I have said elsewhere, that would be similar to being a little bit pregnant. It is simply not possible. It is also treating mental health somehow less seriously than physical health if we suggest that risk to life arising from suicidal ideation is somehow less serious. It is also an argument that is profoundly demeaning to women, suggesting that we are so deceitful we will be queuing up pretending to be suicidal in order to get an abortion. It is also undermining of the psychiatric profession who have professional training in assessing suicide risk. It is important to state that it is legally wrong to say that this would open the door to abortion on wider grounds, as some have suggested. The Supreme Court test is set extremely high. There must be real and substantial risk to life arising from risk of suicide. This is far higher than the mental health ground for abortion provided for in, for example, the British 1967 Act.

It is also important to point out that the people have voted twice since the X case, in November 1991 and again in March 2002, to confirm the X case test and to confirm the inclusion of suicide risk, even when it was explicitly put to the people that this could be excluded. Since the X case, there has been a further case in 1997, the C case, in which the High Court heard and accepted psychiatric evidence that a young girl pregnant as a result of rape was suicidal and that the risk of suicide was a real and substantial risk to her life. In recent weeks, seven eminent Irish psychiatrists have reminded us that suicide is associated with unwanted pregnancies in countries where abortion is not available. We are fortunate in Ireland in the sense that there is legal abortion available, albeit across the Irish Sea. To those who say there is no abortion in Ireland, I say while it does not happen in Ireland, in 2011, 4,149 women who gave Irish addresses had abortions in English clinics and that since 1983 approximately 100,000 women resident in Ireland have had abortions elsewhere. It is notable that our rate of abortion rose during the 1980s and 1990s. It is welcome that the statistics in this regard have decreased since the establishment of the Crisis Pregnancy Agency, which indicates that making contraception more accessible can play a large part in reducing the incidence of crisis pregnancy. As I said, we would all welcome greater access to contraception and sex education, thus reducing the incidence of crisis pregnancy.

I will now address the blueprint of the report. As stated by other speakers, chapter 6 sets out in detail the procedure that may be set out in legislation for determining the clear legislative or regulatory regime which the European Court of Human Rights required we should establish. The report suggests that two doctors with relevant training and expertise appropriate to the case would be sufficient to make a clinical decision on the risk to the life of a woman, be it physical or mental, and points out that special provision would need to be made for emergencies and for a review mechanism where a termination of pregnancy had been refused in the first instance. It states that this review panel could be established swiftly, with access only at the request of the woman. The report also points out, in chapter 6, that conscientious objection would be allowed subject to limitations, such as the duty to refer the patient to another doctor or to treat her in circumstances of imminent risk of death.

Chapter 7 of the report has been a major focus. This chapter sets out the options for implementation. As I stated, of the four options presented in the report the option of legislation plus regulation is clearly the one that carries with it the most advantages. We all realise that legislation is essential, and legislation together with regulations offers us the best approach to implementing the A, B and C v. Ireland judgment and finally fulfilling our legislative obligation to carry out the wishes of the late Mr. Justice Niall McCarthy in the X case.

I regret that the expert group report did not address the issue of fatal foetal abnormality. We have all heard the many harrowing stories from women and their partners who have had experience of this and have had to travel abroad for termination of pregnancy. It would be useful if we could encompass this in any legislation within the terms of the Constitution. Crucially, we must move swiftly. Senator Norris, Deputy Conway and I are hosting a briefing next Tuesday on the expert group report and the need for legislation, which we hope others will attend. It is hoped that a decision to legislate will be made by Government by 20 December and that we will then see legislation and regulations drafted during the first three months of next year. We need to move swiftly. It is key that we ensure no more women die.

Senator Rónán Mullen

I welcome the Minister to the House. I cannot imagine a more important debate taking place in this House. We are discussing one of the most difficult human questions that arises in the Western world today. I am mindful that we are speaking in the wake of a recent children's rights referendum, which happily was passed and resulted in the insertion of the words, "The State shall acknowledge the natural and imprescriptible rights of all children" into the Constitution.

In reflecting on profound questions, we should remember that our laws should always be infused with values of gentleness, love, inclusivity and humanity. The word "humane" featured in the Minister's speech. What is most humane about Ireland's abortion laws, for all our faults as a country - like other countries, we have faults - is that we have preserved, cherished and thrived within a two-patient model, namely, the care and protection of women in pregnancy and their unborn children, about which there is something merciful, just and noble.

Members of the Government may be teetering on the brink of making a tragic mistake. I hope it can be persuaded not to do so. It is unjust to link this important debate with the tragic events that took place in Galway when the details of what happened in that situation are not known. It has been reported in The Irish Times that it never suggested that a termination of the pregnancy would have saved that unfortunate woman's life. I am sorrowful at the co-option of that tragedy in recent weeks to advance a different political point.

I welcome the opportunity to discuss the expert group's report. However, I cannot compliment it on the consistent clarity and lucidity with which the Minister credits it. I will give an example. The report presents guidelines as one of its options but suggests that guidelines alone would not be acceptable to the Committee of Ministers of the Council of Europe. The report simply asserts this and does not provide any justification for it, other than that the guidelines are not legally binding. The reality is different. It is well accepted that the Committee of Ministers has in the past accepted administrative measures such as guidelines as discharging a member state's obligations in the wake of a European Court of Human Rights decision. The court stated in the A, B and C v. Ireland case that it does not decide on the means by which judgments are implemented. It is only concerned that accessible and effective procedures be offered in order that an applicant such as C would know what treatment was lawfully available to her.

By such procedures somebody in applicant C's position could know what treatment was lawfully available to her. The court specifically referred to medical guidelines in its judgment and did not state that such guidelines would fail to address the rights' violation found in the case. In this regard it should be noted that when the court mentions legislative or regulatory mechanisms, it does so as a catch-all phrase intended to include all measures that would satisfy a member states's obligations under the convention.

Guidelines would bring the necessary clarity required and could also provide whatever appeal mechanisms were deemed necessary according to the judgment in the A, B and C case v. Ireland. The European Court noted that it was not calling for the current legal test to be altered. Instead it recognised that what was at issue was to provide accessible and effective procedures for the making of the medical test. Since it is agreed by all that the test in question is inherently medical in nature, it would seem that the best way to clarify it and its attendant appeal mechanisms would be by medical guidelines.

With regard to a referendum, the report fails to include as one of its options a referendum overturning the X case judgment, but there was nothing in the expert group's remit that would have precluded it from examining the possibility of a referendum. The terms of reference clearly state the taking into account of constitutional, legal, medical and ethical consideration. We have the reference to the fact that the only brief the Minister gave this group was to deal with the requirements of the European Court of Human Rights and to advise the Government how to give effect to existing constitutional provisions. Perhaps the Minister can explain how that came about or why and when that brief was given as it seems to put a new meaning on the terms of reference, which do not of themselves admit a construction that the possibility of constitutional change could have been considered. Notably the European Court of Human Rights has consistently affirmed that there is no such thing as a right to abortion. In the A, B and C v. Ireland case it is stated again that Ireland is free to decide on its own abortion laws. Therefore, a referendum was and is a very real option and should have been included in the report. Some activists and activist Ministers have suggested that two similar referenda have failed in the past and, therefore, there is a clear indication that people do not want to overturn the X case judgment. That is simply false. The referenda of 1992 and 2002 were defeated by a coalition of pro-life, pro-choice groups and voters for a variety of conflicting reasons. This is a well established fact of Irish political science because there was an exit poll from the 2002 referendum which showed that a majority of people voted for pro-life intentions. A referendum therefore that focuses solely on overturning the X case judgment would and could garner the support of a majority. That is still borne out by the most recent poll in the Sunday Business Post which put it that 63% would favour a limiting of the X case scope to exclude the threat of suicide, which as we know is controversial and unmedical.

Another glaring flaw in the report is that it suggested that any measure short of amending the Offences against the Person Act 1861 would leave this Act on the Statute Book and constitute a chilling effect on doctors performing genuinely legal interventions in pregnancy. This has been seized on already in this debate. Such an assertion can be made by ignoring not only the central role of mens rea in our criminal law but also that statute law is operative only to the extent that it is in conformity with the Constitution. The facts are plain, no doctor has been prosecuted let alone convicted for an unlawful abortion since the 1983 referendum. There is simply no chilling effect. In fairness to the judgment in the A, B and C case v. Ireland, it mentions the concept of a chilling effect only in the context of the absence of legal clarity, which it is proposed to provide. That frankly is a sad red herring.

There is uniformity among all citizens of goodwill that we must always guarantee best medical treatments for women in pregnancy and for physical conditions, including where it is foreseeable that the child will be lost. There is an established tradition in medicine in other situations outside of pregnancy of giving treatment that one knows may carry a potential harm to a patient but because it is not the direct intention, it is nonetheless ethical and lawful. The difficulty is that there is nothing humane about the decision that a threat of suicide could constitute the threat to life. It is a medical myth. We do not have a constitutional principle requiring a Supreme Court judgment to be legislated for. We do not have any reason or principle to give legal effect to what is a medical mythology. One of the advantages of both guidelines and referendum approaches is that they avoid legislating for the X case. Why have seven successive Governments decided against legislating for the X case in spite of a resolutely pro-abortion media? The answer is simple, the X case was a flawed judgment, based on non-existent medical evidence. No psychiatrist was heard. We saw in the C case which Senator Bacik mentioned - the person told her own story

Senator David Norris

On a point of order, I would like direction as to whether it is appropriate for a Member of the Oireachtas to openly challenge a judgment of the Supreme Court, as has just been done?

Acting Chairman (Senator Paschal Mooney)

Under the separation of powers, it is not appropriate.

Senator David Norris

It is not appropriate.

Acting Chairman (Senator Paschal Mooney)

Let me advise Senator Mullen that he has exceeded his time.

Senator Rónán Mullen

I appreciate the Chair's ruling. It is certainly appropriate. Any citizen may criticise a Supreme Court judgment.

Senator David Norris

I understand the judgment of the Chair is now being challenged as well. That is very worrying in a democratic House.

Acting Chairman (Senator Paschal Mooney)

The Chair's ruling is that there are clearly defined roles in the Constitution for the separation of powers and as someone who fell under this particular ruling earlier this week, I must reiterate that Senator Mullen would not be making appropriate comments.

Senator Rónán Mullen

It might be of assistance to the Chair for me to say that I am not attempting to usurp the role of the Supreme Court. I am simply criticising its reasoning, which has been done by many a jurist and people far more eminent that I.

Acting Chairman (Senator Paschal Mooney)

The Senator has exceeded his time. I was very liberal in giving Senator Mullen extra time because of Senator Bradford's precedent, but he is over his time.

Senator Rónán Mullen

In light of the spirit that has operated, may I make a few concluding comments? I will be brief.

Acting Chairman (Senator Paschal Mooney)

The Senator has had up to ten minutes. He will be preventing somebody else.

Senator Rónán Mullen

In conclusion, we should not forget the British experience in which approximately 95% of the 190,000 abortions that take place in Britain each year are on mental health grounds. We have heard how difficult it is for psychiatrists to predict that a person is suicidal. We are now expecting them to tell us that not only that a person is suicidal while pregnant but they are suicidal because they are pregnant.

An Cathaoirleach

The Senator is over time.

Senator Rónán Mullen

For that reason I urge the Government not to go the rather ideological route of pretending there is a medical ground that is good for women, when there is not.

An Cathaoirleach

The Senator is way over this time.

Senator Rónán Mullen

It would be fatal for children.

Senator Deirdre Clune

This is a very sensitive issue. I understand that individuals have personal views and experiences. Childbirth and pregnancy are wonderful experiences but they throw up some difficult and tragic situations. Each and everyone knows of incidents that have been highlighted in both Houses.

I am glad that the Minister is clear on the commitment of Government to act on the recommendations of the expert group. I thank the expert group for its clear report. It sets out the background as to why we are in the current situation and the options to move forward. It sets out in paragraph 4.7 the implications of the State's obligations on the judgment in the A, B and C v. Ireland case. We are considering the C case. I quote:

Arising from the judgment, Ireland is under a legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether or not they are entitled to a lawful abortion in accordance with Article 40.3.3° of the Constitution as interpreted by the Supreme Court in the X case, and, by necessary implication, access to abortion services in the State. 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 Court noted that since the X case, no criteria or procedures have been subsequently laid down in Irish law, whether in legislation, case law or otherwise by which that risk to a woman’s life is to be measured or determined, leading to uncertainty as to its precise application.

We are at that point today. It further states:

The European Convention for the Protection of Human Rights and Fundamental Freedoms is an international agreement which Ireland has signed and ratified and which is consequently legally binding upon Ireland.

We have a legal obligation and a duty to comply with the judgments of the European Court of Human Rights which is an integral part of the convention. We need to examine its recommendations and ensure we comply with them.

Many clear options have been outlined in the report of the expert group and the Government will make a decision shortly on how it will proceed. A combination of legislation and regulations seems to be the way forward if we are to balance the advantages and disadvantages. The report also outlines clear options for implementation, decisions on entitlements and review procedures. It is clearly laid out. It deals with many of the difficult medical and legal decisions that have to be made. Many of us are not equipped to deal with such matters. The capacity and the structures are in place to spell out how we can move forward in this area.

The issue of suicide has been raised and seems to be a difficult one for many. A recent letter in The Irish Times which was signed by eight psychiatrists referred to international documented research and findings in this area. It read, "There is no evidence that women post-abortion are at an increased risk of suicide ... but there is evidence that suicide is associated with unwanted pregnancies in countries where abortion is not available". I know we can make arguments on the other side also. While we can have our opinions on the issue of suicide, I do not think any of us is equipped to make decisions or adjudicate. I am very uncomfortable with the language used in this debate. In many ways, women are deemed to be second-class citizens. There is a suggestion women who are pregnant and suicidal are not to be believed. That is not right and I do not want us to attempt to provide for this in legislation. When we attempted to do so in the Constitution on two occasions, the people in their wisdom rejected it.

I am glad that we have reached this point. We have a clear document that shows us how we can move forward and I look forward to the Government's decision. We will have an opportunity to listen to various interest groups on the issue when the Joint Committee on Health and Children holds its hearings early in the new year. When legislation is introduced, Members of both Houses will be able to deal with an issue that has been hanging around for too long. I have spoken to many people who want us to get on with it by legislating and putting structures in place that will allow an abortion to be performed if the mother's life is at risk. Nobody wants to see abortion on demand. I lived in the United Kingdom over 20 years ago and had my first child there. I certainly do not want that country's type of abortion regime to be implemented here. The UK legislation was established on the basis of mental health, rather than the risk of suicide, which is what we are talking about here. The two are completely different and cannot be compared. We have a roadmap that will allow us to move forward in a sensitive manner. If we are to respect women as individuals, we should not assume that those who say they are suicidal are using it as a cover to have an abortion. It is insulting and degrading to women to disbelieve them in such a way.

Senator Averil Power

As an adopted person, I have always been deeply conflicted on the issue of abortion. When people speak about unwanted pregnancies, I cannot help but reflect on the fact that I was the unplanned daughter of a single woman. When she became pregnant in 1978, she did not have the option of keeping me such that I could grow up as part of her family. I am grateful that through adoption I was given a chance to be part of another family and to get to know my birth mother and half-siblings later in life. When some individuals on the pro-choice side speak about abortion as a simple women's rights issue, without a thought for the life of the unborn child, it upsets me greatly. The lack of compassion some of the most extreme pro-life groups extend to women in distress, particularly those who are victims of rape or whose lives are at risk, is just as distressing. My view is that while abortion is never desirable, in some circumstances the consequences of it not being available are worse. We do not yet know if the termination for which Savita is said to have pleaded would have resulted in her life being saved. Perhaps we will never know with absolute certainty, even after the various investigations have concluded. What is clear, and was clear long before her death, is that the failure to legislate for the judgment in the X case has left doctors in an unacceptable legal limbo and women without the protection they deserved.

Senator Jim Walsh

No doctor is-----

Senator Averil Power

I appreciate that abortion is an emotive and sensitive issue. I understand some Members of this House, including some members of my own party, to which Senator Jim Walsh will attest when he makes his contribution, have deeply held moral or religious objections to abortion in any circumstance. However, as legislators, we have a responsibility to uphold the Constitution and it is clear from the judgment in the case of A, B and C v. Ireland that the Oireachtas has failed to fulfil that responsibility. According to the European Court of Human Rights, the lack of legislation has resulted in "a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation". It is clear from the judgment of the European Court of Human Rights that Ireland is required to put in place an effective and accessible procedure to enable women to establish whether they qualify for a termination in the State in accordance with the test set out in the X case criteria. Maintaining the status quo is not an option. It is past time for us to legislate for the judgment in the X case. It is past time to give proper and practical recognition to the constitutional rights of pregnant women whose lives are at risk. It is past time to give doctors a clear legal framework in which they can act to protect mothers' lives without the chilling effect of the 1961 Act hanging over them.

I welcome the expert group's report which, like Senator Fiach Mac Conghail, I have read in detail. I have considered each of the options put forward in it. My belief is that a combination of legislation and regulations is the most sensible approach. Primary legislation would give us the legal strength we need on this issue, while regulations would mean the legislation would not have to be excessively detailed. The regulations would put the meat on the bones of the legislative position. I hope legislation will be brought before the House as soon as possible after Christmas, as we have already had too much of a delay on the issue.

However, I am also conscious that when we legislate for the judgment in the X case, we will still be leaving some of the most vulnerable women in the country without the support they deserve - victims of rape and women whose babies have fatal foetal abnormalities which the expert group has stated are generally thought to be outside the scope of the X case. I would like to read from an e-mail I received from a woman who has faced such circumstances:

I had always been someone who said I would never have an abortion - unfortunately I didn't know what lay ahead for me. I was with my husband 10 years when we decided ... to have children. Much to our delight after ten months I finally fell pregnant. I did everything right, I took care of myself [and took] folic acid ... My bump grew and I began to feel my lovely baby kick me and move about. I finally received my appointment for my first scan at 22 weeks ... and here all changed. When I had my scan I was told that my beautiful daughter had a condition called anencephaly [which meant that she] had no hope of surviving and would die without a doubt. If she survived the pregnancy, she would probably die at birth or within a few hours. To say we were heartbroken is an understatement ... How would I cope emotionally? How could I keep growing day by day and feel this baby inside me? How would I deal with the questions from well meaning people - when is your baby due [they would ask me]? How could I watch my perfect baby struggle and die in my arms? After much deliberation, I felt it would be too difficult to continue with the pregnancy knowing our daughter was going to die and I opted for a termination in the UK ... Because of our laws, I was not allowed receive any help from the hospital here .... I wanted this baby so much but [I knew] she was going to die - no medical intervention could prevent this. It was the most difficult thing in my life. I had to leave my home, my comfortable surroundings and travel to a strange country .... [it] was difficult enough .... without having the added problems of travelling to the UK .... I could have had all my family around me. I could have had my own comforts. I could have seen my lovely daughter and buried her close to me. Now, I will never know what she looked like and I have no place to visit her.

The lady who sent me that e-mail said she never thought she would have an abortion. However, it is clear from the circumstances she outlined in her e-mail that this is not a black and white issue. My personal experience and the circumstances of my own birth mean I will never support abortion on demand. It just does not sit with me. It is not a choice between two extremes. It is not a choice between no termination in any circumstance and a fully liberalised regime.

It is certainly not a choice between the current Irish system and that in place in the United Kingdom, although Senator Rónán Mullen may have implied that it was. As Senator Deirdre Clune rightly pointed out, that is comparing apples and oranges. Nobody is suggesting we introduce the UK system here. We should legislate for the judgment in the X case, but we should also have a referendum to let the people decide whether abortion should be available to victims of rape and incest and women whose babies cannot survive outside the womb.

Senator Susan O'Keeffe

I thank the Minister for coming to the House. Like others, I welcome Mr. Justice Ryan's expert group's report. I also welcome the Minister's clear observation that the Government will bring legal clarity to the question of legal abortion and that this will be done within an appropriate timeline. After all, there has been a long wait for the legislation.

While I welcome the expert group's report, we did not need it to tell us what we need to do. As it is only women who can give birth and there is no control over biology or the birth process, it will always be women whose lives will be at risk. It will always be women's bodies that will be subject to the wear and tear. It will always be women who will go through the trauma and, I hope, the triumph of bringing new life into the world. Therefore, this is about women and their health and how Ireland in the 21st century wants to respond to that need. As others said, this is a complex issue because in giving birth there will always be a risk - a risk to the baby and the mother. Any of us who is lucky to have children knows this in a personal way. Some of us also know the heartbreak of losing a potential life and the grave risk we endured in that process. Giving birth is both fraught and dangerous, even when it goes well, because there is always a risk. How could there not be at such a dramatic moment?

As human beings, our first instinct is to protect. Generally, that is what we all do in everything, but the great challenge in pregnancy is that in the circumstances we are discussing there are two lives in the mix, not one, and one of these lives is entirely dependent on the other. Of course, there are no easy answers, but that is no reason to sidestep trying to answer them and in the process suggest and pretend that women's lives are not important, especially those at risk of suicide, and that they might, as others said, be faking it. We have debated the issue of suicide frequently and expressed ourselves as being concerned about the growth in the incidence of suicide, but, apparently, when it comes to pregnant women potentially being suicidal, they are somehow fair game. I cannot find words to express my horror at what has happened in the middle of this debate. Senator Rónán Mullen used the term "unmedical", whatever that might mean.

Even though we did not need an expert group to tell us, its report does bring welcome clarity to the debate and we must now move into the legislative arena. The Minster and the Government understand strong legislation and coherent guidelines, as suggested in the report, would provide a framework to protect women and give much needed support to the medical profession, the members of which face difficult decisions each time they are called to act in a crisis pregnancy. The report sets out a clear blueprint for such legislation, including the appropriate qualifications of doctors, lawyer involvement, appropriate access to the courts and the nature of a formal review process, among other issues. Legislation will be difficult and take time, but much of the basic work has been done by the expert group in offering a framework, for which we thank it. I, therefore, urge the Government to put the legislation at the top of the drafting list, call together officials in the Departments of Health and Justice and Equality and ensure the drafting process starts immediately. Having waited 20 years since the landmark X case and in truth for much longer because there were many others before the X case who never had a chance to have their voices heard in court, clarity and decency would be brought to the medical profession and women in the first quarter of 2013.

Ireland should be a modern, progressive country that treats all citizens equally. Our 19th century law is a voice from another time. Like others, I find it insulting and demeaning to have to listen to some of the lies and innuendoes which those who profess to be pro-life bring to the debate. I am astounded by some of the misogynistic tones. I am pro-life. I am pro the lives of women and babies, but if a woman in Ireland or anywhere else is ill during pregnancy, physically or mentally, her life must be protected. How could it not be?

I do not want to let the debate end without mentioning Savita Halappanavar. I pay tribute to her husband, Praveen, and his dignity. We are not aware of all the circumstances of the case, but it has certainly contributed to the debate. I urge the Minister and the Government to consider initiating a sworn independent inquiry as the appropriate way to find out what happened. I firmly believe an independent inquiry would be the most appropriate way to respond to this tragedy, not instead of the HSE inquiry which is obligatory but in addition to it. That the HSE appears to have breached its own guidelines in not having a local case review immediately after her death is a separate issue.

Senator Marie-Louise O'Donnell

I thank the Minister for coming to the House. Many Senators are not present as they are attending a lecture on human rights by the Secretary of State, Mrs. Hilary Clinton, at Dublin City University. I was going to ask Senator Averil Power to stay because what I have to say locks directly into what she said. I feel a little like Mrs. Roosevelt. Human rights start in one's own kitchen, which is why most of us are here today. The Government won a 2006 European Court of Human Rights case on the right to terminate a non-viable pregnancy. Where does that leave the sacred and profound nature of the case in Galway and the case the Senator mentioned so poignantly? It involved the D case, where a woman had become pregnant with twins, in which one foetus died at 14 weeks and the other had a life-threatening syndrome, Edwards syndrome, and the woman had travelled to England for an abortion or termination. Ms de Barra did not go through the Irish courts. She took a case to the European Court of Human Rights and her argument was that it was a breach of her rights that the only way in which she could have ended the non-viable pregnancy was to travel to England for treatment and a termination. The case began in 2005 and the court in its judgment ruled in favour of the State on the right to an abortion in Ireland where a foetus had a life-threatening abnormality. Dr. Gerard Hogan, senior counsel, the law agent acting on behalf of the State, argued that Ms de Barra would have had good prospects of succeeding had she brought an application to the Irish courts for a legal abortion in Ireland and he won the case. He argued that the X case had demonstrated the potential for judicial development in this area and this is the kernel of my argument. According to the judgment of the European Court of Human Rights, the foetus in the X case was viable, whereas in the D case there might have been an issue as to the extent to which the State was required to guarantee the life of a foetus with a lethal genetic abnormality. Dr. Hogan also argued that the courts in Ireland were unlikely to interpret the X case judgment with remorseless logic, particularly where the facts of the case were exceptional. Both he and Donal O'Donnell, senior counsel, also argued on behalf of the State that it had been established that if there was no realistic prospect of the foetus being born live, there was at least a tenable argument that would be seriously considered by the domestic courts to the effect that the foetus was not an unborn for the purposes of Article 40.3.3° or that, even if it was an unborn, the right to life was not actually engaged as it did not have the prospect of life outside the womb. This is extremely important. They argued that a foetus with a life-threatening abnormality might be found not to be eligible for constitutional protection by the Irish courts.

He argued that if it was unborn, its right to life was not actually engaged, as it had no prospect of life outside the womb, and he won.

It was also noted by the European Court 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 where the unborn suffered from an abnormal incompatibility with life. Where does that leave the sacred and profound nature of the Galway case? Where does that leave the sacred and profound nature of what Senator Averil Power has spoken about?

As the Irish State won a case in the European Court of Human Rights on the right to terminate a non-viable pregnancy, why was the D case not part of the experts' report? Can I be assured that future legislation and regulation will include it? Why have I heard so little about it? Why does the Government think one thing in this country and argue another in the European Court of Human Rights? Why, why, why? Why is the State now doing what it has almost done already in the European courts? The D case may bring the kind of clarity the Minister mentioned earlier, a different kind of clarity, but perhaps one we need. Why was the D case not included in the experts' report? He won the case.

Senator Aideen Hayden

Any debate on the issue of abortion, irrespective of the context, will be a debate that is fraught in the Irish context. Since I have become involved in political life, whether through my quasi-political involvement during my student union days in UCD or party political involvement, abortion has dominated the scene. I find this astonishing, because in much of that time I worked with disadvantaged people in areas like Crumlin, Darndale and Ballymun. Many of the people I dealt with were lone parents who were facing extreme poverty, yet their needs did not garner the same amount of attention as the 1983 constitutional amendment on abortion or as any of the subsequent constitutional amendments.

I am somewhat cynical and remain cynical about the ongoing debate in Irish society on the issue of abortion. This country has approximately 50,000 live births per annum, but some 14,000 women will have a miscarriage in the same year. A miscarriage is a very emotional and traumatic experience, but for some of the women who have a miscarriage, it will not just be emotional and traumatic but may, in the most extreme circumstances, threaten their lives.

I spoke in this Chamber on the death of Savita Halappanavar which was a very tragic case. However, the circumstances of that case remain to be proven within the proper legal context and within the context of the proper inquiry. I will not, therefore, engage in discussion of that case. We have the expert group report before us today and it predates anything else that has happened recently in this jurisdiction. The report must be debated on its merits in that context. The report provides a very thoughtful explanation of what has occurred within our society and of the law in regard to this issue. It is a thoughtful and well presented report of the options available to us as legislators for the future. The expert group has made its position very clear as to what it considers the future should be, yet it is conscious and straightforward in saying it is not its function or role to dictate to the legislature.

If I was somebody who ever had a mental health difficulty or who had ever considered suicide or who lived in a family where a member of that family had ever considered suicide, I would be deeply upset about some of the commentary in this country in the past couple of weeks. Presenting the threat of someone taking her own life, as I heard one speaker present it, as though it was something that could be dealt with through a bit of tender loving care and a bit of counselling, completely undermines the serious mental health issues faced by people who consider taking their own lives. The expert group does not leave us in any doubt. The threat of somebody taking her life through suicide is a real threat. As legislators, we must not walk away from that reality. I do not believe the Labour Party will walk away and I hope our partners in government do not either.

I do not believe the issue of abortion will ever go away, nor do I believe it should. This is a debate that should be ongoing and which should be aired more in the future. If nothing else, the expert group report has brought into the open some of the issues we have been hiding for the past number of years. Dare I say it, but this is a class issue. People with money can vote with their feet, and they do. They do so in serious numbers. People without money cannot. They depend on us to put in place a legal system that protects them. Not only are we duty bound to do that, we are also duty bound to put the resources into protecting women in this country.

Senator David Norris

This is an extremely important debate and what has happened here today in this House illustrates that. It is remarkable that every woman who spoke here took a charitable and understanding view of the complex issues. However, not all of the men did so. It was very courageous of Senator Power to put her personal story, with all its complexity, before the House and to illustrate that Fianna Fáil, as a party, has refused to be railroaded for political gain into one particular corner on this debate. I welcome the fact this was demonstrated here today.

I welcome the excellent contributions of Senators Clune and Hayden, but the most important contribution so far was that of Senator Marie-Louise O'Donnell. I urge the Minister to take what she said back to Government, because it is clear there is the capacity to legislate in the area of foetal abnormality. As a mere man, I hope it does. It is barbarous to sentence women who are the victims of rape, incest or whose foetuses have a severe foetal abnormality - a child that would be born without a brain - to bearing those foetuses to full term. We should let it sink in what foetal abnormality means. It means a child without a developed head. We presume to take to ourselves the power to force women to bear these incomplete foetuses to term in order to satisfy some religious scruple of our own. It would be difficult to meet that extraordinary arrogance elsewhere and the majority of people wish there was not that arrogance.

A Senator whom I will not name, as he is not here at the moment, challenged the ability of the Supreme Court, but I am glad to say I managed to have the record corrected. He went on to impugn the Ryan report. He also impugned the voice of the Irish people as expressed in two referenda and in doing that he also impugned the intelligence of the people by saying they were so stupid they did not actually know what they were doing.

The pro-life movement uses the words "unborn" and "unmedical". I am very glad the Minister for Justice and Equality, Deputy Shatter, has taken the same position I have had for a number of years, of challenging those who take over the language system, because once one has the language system under one's control, one has won the argument. We must resist the stress on words such as "unborn", "pro-family", "pro-life", "unmedical", etc.

We must use our intelligence. We were told here earlier that the fact that no doctor had been convicted meant there was no chilling effect. Really. What it means is that the doctors were so confused by the grey area or so threatened by it that they did not take the action they knew was medically required. If anyone doubts this, they should have watched, with me, most of the prominent gynaecologists in this country, including the masters of the two largest maternity hospitals, saying that it had a chilling effect. We must listen to them.

I believe in listening to the other side and for that reason attended the briefing in the audio-visual room. The main point left out by a previous speaker, when talking about tender loving care in the context of suicide and so forth, was that they also use drugs to sedate people. While I was there, for quite a considerable amount of the time, there were 40 men and only three women in the room and that suggests a certain lack of balance. The idea of suicide was challenged but I do not care, to be quite honest. Suicide is a valid consideration, irrespective of whether it is real. If a woman was raped or was pregnant as a result of incest, she would be terrified that she would not be allowed the appropriate medical treatment and in those circumstances, I think it would be legitimate for her to say, "I am so upset that I am thinking of taking my own life." Who is to challenge that? We should be honest in addressing these issues.

I am glad something is to be done on the 1861 Act - 1861 is a long time ago - and I am familiar with it because I challenged it in the European Court of Human Rights. I lost in the two courts here but I won in Europe and I am glad we are looking at this aspect of the legislation again. I have said for the last 25 years that, sooner or later, however difficult and however awful a situation it may appear to people, we have to face the question of abortion. I found it very interesting that the Minister spoke about "lawful abortion in Ireland". That is a phrase that would have been unthinkable ten, 15 or 20 years ago.

I remember, about ten years ago, reading and being moved to tears by a letter in The Irish Times by a woman who had an anencephalic pregnancy. It was a foetus, it was not a child. How could one say it was a child? I do not see how one could say it was a child. It had no brain, no spinal cord, no nervous system, no capacity to feel or sense. How is this human? How is this fully human? I do not understand it. It is a misuse of language. She was forced to continue that pregnancy and with great courage, she wrote and signed that letter and included her address.

Senator Power read an e-mail and I would like to read part of another. This e-mail contains grammatical errors and was not sent by some mad, liberal campaigner from Dublin 4. She was pregnant but her baby had Meckel-Gruber Syndrome. Such babies survive inside the mother because the umbilical cord continues feeding them but they will "100%" die during or after birth. She wrote that such babies "are severely deformed, where the back of the head doesn't form and the brain grows on the outside, no fluid around them and almost always have organ failure". She continues, "I went full term and had to have the baby because it was five months when we found out about the problem - too late to terminate". She then had a few more pregnancies but:

...with the fourth pregnancy we found out it had happened again and had to find out about a termination all on our own as the doctors wouldn't even talk or give advice to us on this subject. It was so taboo that they would not say anything to us that might cost them their jobs. We ended up going over to an appalling clinic where we were treated like dogs and pushed out the door, 15 minutes after the termination. There were do-gooders outside throwing holy water on us and praying for us. So drowsy and sore. We then had to go to the airport for our flight back home and all in all it cost us €2,000.

I am deeply ashamed that that happened to that woman and I do not care what the consequences are-----

An Cathaoirleach

The Senator is way over time.

Senator David Norris

I do not care what kind of unpleasant letters are sent to me anymore. It does not bother me at all. I want to nail my colours to the mast and say this - I believe a woman has the right to choose, not just in the circumstances indicated in the major case but also in the circumstance where there is severe foetal abnormality and the foetus has no capacity to live or where there is incest or rape. Providing for abortion in those three instances, in addition, is the most humane way to respond to this most terribly difficult human situation. I am a man and we ought to listen very carefully to the voices of women before we presume in this area.

Senator Cáit Keane

The debate we are having today is very sensitive. I acknowledge the work of the expert group, under the expert chairmanship of Mr. Justice Seán Ryan. I also acknowledge the work of the late Trevor West, a former Senator, who worked alongside former Senators Mary Robinson and John Horgan in presenting a Bill on contraception to this House in the 1970s, which was not accepted. The Supreme Court ruled on contraception in 1973 but it was more than 11 years later before legislation permitting the sale of contraceptives without a prescription was passed. Here again we find ourselves dealing with a court ruling on a matter of social policy and we as legislators are keeping up the rear on it. I wanted to make reference to the three former Senators who worked on the contraception issue because earlier today we paid tribute to Trevor West, who died recently.

As Senators have said, abortion is a very sensitive issue. The 1861 Offences against the Person Act is the law under which doctors are operating. On December 16 2010, the European Court of Human Rights noted "a striking discordance between the theoretical right to a lawful abortion in Ireland on the grounds of a relevant risk to a woman's life and the reality of its practical implementation". The court ruled that "no criteria or procedures have been subsequently laid down in Irish law, whether in legislation, case law or otherwise, by which that risk is to be measured or determined, leading to uncertainty as to its precise application". This is where we as legislators find ourselves today - surrounded by uncertainty. As legislators, we cannot allow this uncertainty to continue. It is our duty, whether we like it and regardless of our personal views, to remove the legal uncertainty. It is almost 30 years since the 1983 abortion referendum and 20 years since the X case ruling.

We are still influenced and governed by 19th century law, namely, sections 58 and 59 of the Offences against the Person Act. We await the outcome of an investigation into the very sad death of Ms Savita Halappanavar and I will not comment further on that except to say we do not know the facts of that case yet. It is not strictly relevant to this debate however because this issue was on the table for the Government long before she died. It was included in the programme for Government, which makes explicit reference to the expert group. Sad as the case of Ms Halappanavar is, we must await the report from Galway.

It is important to bear in mind that the Government has consistently stated its commitment to implement the judgment of the European Court of Human Rights. The expert group's report commented on the option of guidelines versus legislation in its final chapter. The four options were referred to earlier by the Minister and others and these are being considered by the Government. The report also noted that guidelines alone would be subject to legal challenge and that "only the implementation of a statutory framework, compliance with which would provide a defence from criminal prosecution, would provide legal protection to medical practitioners. It would also counteract the effect of the 1861 Act, were this to remain in force". The expert group also noted that the legislative route alone might be too rigid an approach and that is where the issue of guidelines comes in. We do not want to tie any doctor's hands when he or she is making a life or death decision about a mother or a child by the rigid application of a law. We are not experts in the fields of medicine or psychiatry. Sometimes we think we are experts on social policy but we are not. We think we are experts on politics but we see that we can be wrong.

I know we are not expert in psychiatry and we must not be too rigid in our approach. These issues must be considered carefully by the Government before making any decision.

The expert group has done its job and presented its report but the decisions must now be made by the Government and the Minister has committed to this. The A, B and C v. Ireland cases have been mentioned and dwelt on long enough. However, Senator O'Donnell also referred to the D case. As far as I know, Mr. Justice McKechnie gave the ruling on the case but it was not about abortion but the right to travel and that is why it was not considered by the expert working group. The judge was ruling on the right to travel and it was not argued on abortion grounds. The HSE lost the case because it was ruled that the girl had a right to travel. That girl wanted to have her baby. She said in court that she had bought the nappies and everything else and she wanted to have her baby, but because the child was suffering from anencephaly, a brain disorder where half of the head is missing, she found that she had no choice. She was in the care of the HSE because her mother was an alcoholic. That is why the case was taken. It is important that this is stated. It is also important that the Minister researches the case and the particulars of the right to travel. It is not an open-ended case. We cannot legislate for every sad case in the country that arises. This is a tight legislative proposal from the expert working group.

An Cathaoirleach

The Senator is over time.

Senator Cáit Keane

Our poet from Templeogue, Austin Clarke, who died in 1974, wrote a very nice poem that was published in a medical journal in 1970 on the issue of contraception. I do not have time to read it-----

An Cathaoirleach

We will not have a recitation today.

Senator Cáit Keane

There will be no recitation.

Senator David Cullinane

I was quite taken by the contributions from all the female Senators who spoke compassionately and eloquently about the issue of abortion. We could all hear the emotion in Senator Power's voice earlier when she read out the powerful e-mail she received from a constituent, who had found herself in a difficult place like many women do. The reason women are best able to express this issue is because they fully understand what women go through when they find themselves in these circumstances. This is why I was also taken aback by some of the commentary by people who describe themselves as pro-life. I agree with all the other speakers who have a similar position to me on this issue. We are all pro-life, regardless of where we stand or sit on this issue.

The issue of suicide was raised by at least one Senator, if not more, and by many people outside the House. It is deeply insulting to women to suggest they would use the issue of suicide simply to get an abortion. The creation of a perception that women would go shopping around general practitioners trying to get them to sign forms to have an abortion is absolutely wrong and it is deeply insulting to those who are our mothers, sisters, wives, girlfriends, family members and so on. It is deeply insulting to the women of Ireland and elsewhere.

Mention was also made of the Supreme Court judgment, which some people have called into question. They are entitled to disagree with the court's findings but they should not spread misinformation about the Supreme Court ruling. These people peddle the lie and spread misinformation despite the fact that it is corrected ad nauseam. The Supreme Court did not hear medical evidence. These people know and we know that the Supreme Court is an appellant court and it does not hear medical evidence. The medical evidence was heard by the High Court. The job of the Supreme Court was to analyse that information and to ensure that it made a correct interpretation of the evidence before the High Court. Essentially, its purpose was to re-evaluate the evidence and information of the High Court. That is a fact but of course we have had misinformation from people who want to use this issue for their own reasons and that is wrong.

I struggle with the issue of abortion because I am not someone who believes. I believe the term “abortion on demand” is ugly. I am not in favour of liberal abortion regimes and do not believe people should have an abortion for any reason at any time. However, I fully accept that there are circumstances in which a termination is necessary and fully agree with the consistency of my party’s approach, that is, in instances where a woman's life is in danger, including those relating to mental health but also in cases of rape and incest a termination should be allowed and that the final choice should rest with the woman.

We all know of the tragic case in Galway and we can all sympathise with Ms Halappanavar's family. We know about the A, B, C and X cases. These are not simply figures in an alphabet. These are women who found themselves in very difficult circumstances and were compelled to bring the State to court. Sometimes their claims were upheld and sometimes they were not. However, a consistent feature in all these cases was that they showed up that we have failed as legislators. We need to correct this position. We have a clear role as legislators to ensure that we protect the health of women. This is what the issue is about; it is not simply about abortion. One could argue that it is not about abortion at all but ensuring that the health of women is protected.

I refer to the issue of suicide. The Minister of State was in the Chamber for several of the debates. I took part in the debates on suicide as well. One thing we all agree on is the need to de-stigmatise the issue of suicide. Where does this fit when people use the issue of pregnant women as they do to create a perception that they will use the issue of suicide to have an abortion? I find this offensive and cannot under any circumstances accept the notion as put forward.

The Minister of State is aware that my party tabled a Private Members' Bill some weeks ago. She is aware that we supported Deputy Clare Daly's Bill when it was tabled in the Dáil and she knows that if the Government brings forward legislation in line with the X case, my party will fully support it. We want to Minister of State to do so as quickly as possible.

The other issues of rape and incest will not simply go away. We will come back to this issue. I fully accept that we can have legislation in line with the Constitution on this issue, but I hope we will consider the issues that we cannot deal with now in a legislative sense. Perhaps sometime in the future we might hold a referendum on these issues in order that we can ensure we protect vulnerable women when they find themselves in these circumstances.

Senator Jim Walsh

Many Members have referred to the referendum in 1983 and the X case in 1992 and the European Court of Human Rights judgment. That is what has brought us to this point. Obviously, there is disagreement on the issue but there are also areas of agreement. Certainly, where there is a real and substantial risk to the life of the mother, pro-choice and pro-life people agree that the mother should be entitled to every medical treatment and intervention without inhibition in order to save her life. This applies even in circumstances in which it is known that by treating the mother and giving her necessary treatment it would lead to the loss of life of her baby.

An ethical and moral distinction needs to be made. There is a difference between offering the mother every available treatment, on the one hand, as a consequence of which the baby dies, and, on the other, adopting a position from the start where the life of the unborn baby is targeted. This distinction needs to be recognised.

The House debated the issue of embryonic stem cell research a number of years ago. In preparation for that debate I read an article by Professor William Reville, associate professor of bio-ethics in UCC. He comes from New Ross. He was a very bright student and a number of classes ahead of me in school. He wrote about the continuum of life, that life began at conception and ended at natural death. He argued that if that life was interrupted at any point along the continuum, whether it be in middle age, childhood or in the unborn state, the effect was the same. He said this was an arbitrary decision for anyone to take. I can circulate his article to those who may be interested in reading it.

I will not challenge the decision made in the X case, but it must be recognised that no expert psychiatric medical advice was tendered during the High Court case or in the subsequent Supreme Court hearing. To the best of my knowledge, no doctor has been prosecuted in the interim. I am conscious that a number of psychiatrists, including the late Dr. Anthony Clare, said that suicide and mental health had become a wedge in other jurisdictions for the introduction of abortion. Dr. Clare changed his view from being pro-choice in 1992 to being pro-life in 2002. I refer to the 1973 Roe v. Wade case which changed the attitude in the United States to abortion. Norma McCorvey was the woman who took the case and she subsequently became a strong pro-life advocate.

What concerns me about the suicide issue is that suicide cannot be diagnosed. In Britain one in every four or five pregnancies ends in abortion. Approximately 600 abortions a day are carried out in Britain where since 1967 approximately 7 million of the unborn have been aborted. Only 143 were undertaken for the reason that the mother's life was at risk. Abortion has become so routine that 48,000 women have had more than one abortion, with some having as many as eight. I recently spoke to a doctor in Dublin who told me about a patient who was about to undergo her fifth or sixth abortion. It is regarded as a form of contraception. These statistics need to be factored into our deliberations.

I do not doubt the best intentions of Mr. David Steel when he introduced abortion legislation in Britain in order to deal with the hard cases. He has subsequently acknowledged that he never envisaged a situation where the Act would lead to almost 200,000 abortions a year. He said, "I don't think we expected anything like those numbers." We need to consider what has happened in other jurisdictions.

I have spoken to many psychiatrists and have yet to meet one who regards abortion as a treatment for suicidal ideation. I refer to the guidelines for reporting instances of suicide and self-harm produced by the Irish Association of Suicidology and Samaritans. I refer to an esteemed Member of the Oireachtas who has dedicated a large part of his public life to dealing with the issue of suicide. He has said we should avoid simplistic explanations for suicide. Although a catalyst may appear to be obvious, suicide is never the result of a single factor or event and is likely to have several inter-related causes. People do not decide to take their own lives in response to a single event, however painful it may be. Social conditions alone cannot explain suicide. The reasons an individual takes his or her life are manifold and suicide should not be portrayed as the inevitable outcome of serious personal problems. We have evidence from other jurisdictions. Psychiatrists say it is very difficult to diagnose a possible suicide. Even pro-choice psychiatrists agree that in some instances abortion can worsen the mental health of the mother and may aggravate her situation. Once a principle is conceded that abortion is all right in certain circumstances, as Dr. Clare said, it will be used as a wedge to make future legislation more liberal. We must guard against such a view. There are probably 300,000 or 400,000 people alive in Ireland today who would not be if our abortion regime had been more liberal in the past 30 years.

I acknowledge that many women find themselves in a bad place with a crisis or unwanted pregnancy. This is primarily a woman's issue, but I do not accept that it is not one for society also. I refer to cases of fatal foetal abnormality which have been cited. These are very challenging cases. I met representatives of the National Women's Council. However, I also met the One Day More group. These women had carried a foetus to birth and it had subsequently died. However, they received some solace from being able to hold the baby. Rape is a heinous crime which is probably not dealt with as harshly as it should be. At the recent pro-life rally I met a grandfather, a son and a grandchild. The grandfather acknowledged that he was the result of a rape. I refer to my point about the continuum of life. When the life of the unborn is terminated, an entire lineage is destroyed. In advance of the budget all parties were anxious to acknowledge that we had a duty of care to protect the most vulnerable in society.

Acting Chairman (Senator Susan O'Keeffe)

The Senator must conclude as he is well over time.

Senator Jim Walsh

We want to protect the elderly, the sick, the disadvantaged and the disabled. I suggest the unborn qualify as part of that vulnerable group. Taking the legislative route may not achieve this protection for the unborn. We should, therefore, examine four options, of which guidelines might be the most preferable. I thank the Acting Chairman for her indulgence.

Senator Brian Ó Domhnaill

We all acknowledge that there are many personal and moral opinions on this issues and it is only right that we should express these views in our own Parliament. I will state why the 1992 decision in the X case is a flawed basis for law in this area.

In its majority opinion, the Supreme Court has held that a woman has a right to an abortion under Article 40.3.3° if there is "a real and substantial risk" to her life. There is this right if there is a risk to her life but not her health. It is there, however, if the risk relates to the possibility of suicide. Under Article 40.3.3° of the Constitution: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right". Ireland's laws state abortion is only allowed where continuation of pregnancy would put a woman's life - not merely her health or other interests - at risk.

The Supreme Court ruled in the X case that the right to life of the mother is superior to the right to life of the unborn, which was labelled as "contingent". This departure from the unambiguous constitutional position and the two-patient model it inspires resulted in the legal outcome that if a mother threatens to commit suicide, the Supreme Court holds that she has the right to an abortion. Unfortunately - I share Senator Walsh's concerns in this regard - the Supreme Court reached this conclusion without hearing expert psychiatric evidence. In addition, the huge volume of medical research which has emerged in the interim shows that abortion is not a treatment for suicide, that it may actually increase the risk of suicide or that, at its height, is neutral in affecting the risk of further mental illness. In the X case, there were no time limits placed on the right to abortion in circumstances where there is a threat of suicide. Legislating in respect of the X case may, therefore, entail legislating or regulating for an extremely liberal position on abortion. Such a position would allow all women who establish that they are at risk of committing suicide to have abortions at a late stage. Any attempt to put in place time limits may have the effect of rendering the proposed legislation contrary to the decision in the X case.

This issue has resurfaced as a result of the decision handed down by the European Court of Human Rights in the A, B and C v. Ireland case. It is important to note that the European Court of Human Rights ruled that there is no right to abortion under Article 8 of the European Convention, and - affirming its ruling in Vo v. France in 2007 - holds that contracting states are entitled under the convention "to choose to consider the unborn to be a person and to aim to protect that life". The court also held that "Article 8 cannot ... be interpreted as conferring a right to abortion". The situation for the woman known as "C" arose because it was uncertain and unclear whether she could have access to abortion in a situation where she believed that her pregnancy was life-threatening. Rather than information being unavailable, the problem was that there was nowhere C could go in order to secure a legally authoritative determination of her rights. All other complaints were dismissed as well as C's additional argument that Article 2, which relates to the right to life, were violated were dismissed by the European Court of Human Rights as "manifestly ill founded". Thus, Ireland has a broad margin of appreciation to maintain its existing laws where they are sufficiently clear. Where they are not clear, the State can provide further clarity. It is not, therefore, required to legislate on the basis of the X case.

The European Court of Human Rights holds that there is no right to abortion under the convention and that Ireland is entitled to protect the right to life of the unborn child. Since the case of A, B and C v. Ireland did not relate to suicidal ideation, and because the X case does more to obscure rather than to clarify the legal position, the most reasonable, proportionate, and effective way of responding to the judgment handed down by the European Court of Human Rights - in order to afford clarity to those in the position of applicant C - would be to regulate for the two-patient model, which is current best practice in Irish hospitals and internationally celebrated.

In addressing the report of the expert group, I am conscious of the attitudes of the medical profession. Regardless of whatever action the Oireachtas takes in respect of this matter, the medical profession must have its own input. The guidelines the Irish Medical Council has laid down for doctors to follow in this regard - these were updated in 2009 - clearly state, in section 21.1:

Abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother. Under current legal precedent, this exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide. You should undertake a full assessment of any such risk in light of the clinical research on this issue.

These guidelines could provide the basis for bringing certainty and clarity to Ireland's response to the judgment of the European Court of Human Rights.

I do not believe that Senators and Deputies have the right to legislate on this matter without first asking every citizen in the country who is over 18 and eligible to vote for his or her opinion. This could only be done by means of a referendum. I met a constituent recently - the gentleman in question is an accountant - who would not be alive today if abortion had been available to his mother, who gave birth to him out of wedlock. The intention behind the legislation introduced by Lord Steele in 1967 was very different to the outcome to which it has given rise. Some 36,000 abortions took place in Britain in 1968. Last year, there were 190,000. A total of 95% of these were granted on the basis of mental difficulties being experience by the mothers involved.

If we were to legislate on the grounds of suicide, what has happened in Britain in respect of the unborn would - in proportionate terms - occur here. There is a need to provide constitutional protection for the unborn.

Acting Chairman (Senator Susan O'Keeffe)

The Senator must conclude.

Senator Brian Ó Domhnaill

If we, as parliamentarians, cannot do that, I do not know what is to be done.

Senator Colm Burke

On a point of order, it is important to clarify that the Supreme Court heard expert evidence when it was deliberating on the X case.

Senator Jim Walsh

If the Acting Chairman allows that point of order, I want to respond to it. What Senator Colm Burke has said is incorrect. The Supreme Court heard evidence from a psychologist, not a psychiatrist.

Acting Chairman (Senator Susan O'Keeffe)

I am not allowing it. We are not having that argument at this time.

Senator Jim Walsh

There is a big difference between psychologists and psychiatrists.

Acting Chairman (Senator Susan O'Keeffe)

This is not the place for that argument.

Senator Colm Burke

Incorrect information is being furnished.

Acting Chairman (Senator Susan O'Keeffe)

Both Senators are out of order.

Senator Paul Bradford

The little clash which has just taken place illustrates, in very clear terms, the confusion and uncertainty relating to this matter. It is also highlights the fact that a significant debate will be required before substantial decisions are taken.

I welcome this debate which, I hope, will mark the beginning of a process of detailed consideration on how we should respond to the report on the judgment handed down in case of A, B and C v. Ireland and on how this Parliament and society in general should deal with this sensitive, substantive and fundamental issue. How the various political parties, this Parliament and society respond to this matter will define both that for which we stand and our aspirations for this country, for families and for children. We must think long and hard before we make any decision.

There are some issues in respect of which clarification is required. Thankfully, it has not been put forward to any great degree during this debate but argument to the effect that - on foot of the ruling handed down by the European Court of Human Rights - particular measures are being demanded of us and that we must make provision in respect of terminations has gained some currency. The fact is that we must make provision for legal certainty. It is the responsibility of the Government and the Parliament to decide the form that legal certainty should take and to then negotiate with Europe in respect of the position we adopt.

I find it a little disturbing when the point is made that the people have voted on this issue time and again and that no further consideration by the people is required. The Minister of State may have been a candidate, as I was, for election to the Dáil in November 1992. She will recall on that occasion in November 1992 when the Irish political parties were fighting a general election the public simultaneously voted on the infamous three abortion referenda. It must be conceded by all sides that on that occasion 99.9% of the political debate was about the general election and not about the abortion issue. There was no referendum commission and no obligation on the political parties or the Government to give information on one or other side of the issue to the public. Three referenda took place but the outcome of them could not be defined as being definitive.

We then had the X case judgment and a decade ago in 2002 we had another referendum in which there was not a singular question about one part of the debate. It was a broader debate and a broader proposal was put before the Irish people on that occasion. Perhaps it could only happen in Ireland that on the "Yes" side and on the "No" side of the question in the referendum in 2002 there were people who termed themselves pro-life and pro-choice. Again, it was a very confused question that was debated by the public. While another referendum has been ruled out politically, I believe it may well be necessary for the Oireachtas to recommend that another one be held. While people would shudder at the thought of another referendum, why should we be so fearful of consulting the public? What is wrong with asking the public a "Yes" or "No" question on a specific point? That specific point, which may be necessary to put before the public, relates to the second part of the question, as I would term it, the suicide ground - the mental health ground.

The first half of what we are asked to determine is relatively straightforward. Every Member of these Houses and every member of society, without exception, wants to put in place whatever legal certainty and clarity is required to ensure that in all cases where the health and life of the mother are physically threatened or there is a concern in that regard, whatever treatment is required will be provided. I know Members of the Houses can come together quickly and effectively to resolve that issue. It is not fair to say that it would be kicking to touch to separate the other issue which is the sensitive one of suicide. I know we are supposed to use careful and temperate language but I have to refer to it as the suicide element of the equation.

The Minister in his closing speech, which was thoughtful and in tandem with his contribution on this matter in the Dáil, spoke about Ireland having to bring forward legislation and that it would not mean abortion on demand. If people check the parliamentary records of Westminster in the late 1960s or those of the congressional debates in the United States in the early 1970s, they would note that when abortion legislation was introduced it was always expected to deal with a tiny number of cases. It was not to be abortion on demand but that is what transpired. That is why we must be extremely careful that the results of our deliberations do not produce abortion on demand.

I want to see at the earliest possible date progress on legislation to cater for the medical difficulties and uncertainties that could arise and which some would say have arisen. However, we need a much more substantive debate on the issue of suicide because, tragically, we can look across the world and note that in virtually every country where that ground was allowed as a reason for abortion it opened the flood gates. I ask the Minister of State to name one country where that was not the case and I will rest my argument, but I do not believe any example can be given in that regard. We need time and consideration in this respect. I thank the Minister of State and look forward to an ongoing debate on this matter.

Minister of State at the Department of Children and Youth Affairs (Deputy Kathleen Lynch)

I genuinely appreciate the views of all the contributors to the debate, although I do not agree with all of them and I will be straightforward in saying that. In terms of allowing sufficient time for further debate, we have had 20 years and more. The current hiatus in the body politic is a result of a very particular incident. I am not certain that legislation when it is produced will even address that particular incident. The legislation which the Government will produce will be extremely limited. As long as we have the eighth amendment to the Constitution in place, it will continue to be very limited. We can prescribe the circumstances in which women can have control of their own bodies all we like and we can talk about rape, incest and a threat to the life of the mother, but I note very few people have spoken about the threat to the health of the mother, which is the significant issue.

I know women who having completed a pregnancy have found their health was very seriously impaired for the rest of their lives. We all know women like that. We are not discussing that issue. The difficulty with it is that if we are to legislate strictly in line with the eighth amendment, we cannot include those issues. Our difficulty is that the expectation of the public, including those for and against, is that we will resolve this issue. It is my personal belief, having examined it in great detail, that we will not be able to be able to resolve this issue as long as the eighth amendment to the Constitution remains in place. That is a personal opinion but it is clearly backed up by all the legal opinion I have seen.

It worries me greatly that we still talk about women who become pregnant and if somehow we have to protect children from them. None of us would be here but for the fact that our mothers became pregnant and safely delivered healthy babies. Do we trust those women? Do we trust our mothers and our sisters? What about our aunts and our friends? Do we trust them because that is what this is about? It is about trusting women and ensuring they have the right to make legitimate choices about their own health and well-being. I do not know any woman who makes choices in terms of a termination of pregnancy with any great joy. We have to place that trust.

Some of the notes I made as I listened to the debate are about a book I was recommended to read by Joe McHugh. He is dead now and, therefore, I can mention him; it seems one can say whatever one likes about the dead in the country, which is something else with which I disagree. Joe McHugh was the city manager in Cork and he was an incredible man. He once said to me that if I wanted to talk about the control of women I should read Eunuchs for the Kingdom of Heaven. I suggest people read it. It is still the go-to piece of literature in terms of sexuality for the Catholic Church. I am a practising Catholic; I am not anti-church and never have been. That book refers to Aquinas and his description of women, which is something people should read. They are described as imbeciles and feeble-minded and that children should be taken from them. This is very clearly about control and about the legislation which will be produced in this instance which will be so limited that we will not fulfil the expectations of anyone. I firmly agree and completely appreciate the worries there are about people using termination of pregnancy as a contraceptive. I completely understand that argument and completely agree with it.

However, I do not agree with the type of restriction we are, once again, beginning to place on women and the choices they must make. It is not always a case of rape, incest or foetal abnormality. There are other circumstances we must consider in which women find themselves and with which they must deal. That women do not talk about them in public or that they are not the subject of conversation around the dinner table or in the pub means they take these decisions very seriously. The issue affects them deeply. Are we now to say to them that, unless they are declared mentally unstable, they cannot have a termination of a pregnancy?

Senator Jim Walsh

I hope we are not going to do that.

Deputy Kathleen Lynch

I very much appreciate the Senator's contribution because his is a side of the argument we must hear. Equally, however, we must be compassionate, logical and tolerant of the decisions others make. The legislation we will be able to produce on foot of the eighth amendment and the restriction in places on us will not satisfy anyone. There are more than two sides to this argument. Fundamentally, however, it is a question of trust, tolerance and ensuring women have a right to make decisions for themselves without termination being seen as a form of contraception; I agree with that completely. I trust women. That we are all here today means that women we know, grew up with and with whom we are close are deserving of that trust.

The debate was excellent. I have always believed the considered contributions made in this House are excellent. Clearly, there are two sides to this argument. However, while we can disagree, we cannot allow our personal views, no matter how narrow or far reaching they are on the legislation, to dictate the outcome. My job is to legislate. I legislate every day of the week, sometimes for things with which I do not agree, but legislating is my job. We can argue in advance of the legislation or argue the toss while legislating, but where the Constitution does not allow us to legislate, we need to have the relevant argument. Perhaps that is where we need to concentrate our efforts. The legislation, when produced, will be very limited. It will in no way and in no circumstances come close to what obtains in other countries or allowing abortion on demand. Anyone who says so in the course of this debate is deliberately being misleading. We need to have this debate and ensure women’s lives and health are protected. We all know women who, as a consequence of completing a pregnancy, have had their health impaired for life.

I thank Members for their contributions. I genuinely appreciate and have listened very carefully to them.

Seanad Éireann debate - Thursday, 6 Dec 2012

Report of the Expert Group on the Judgment in the A, B and C v. Ireland Case: Statements

Seanad Éireann debate -
Thursday, 6 Dec 2012