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

Deputy Peter Mathews

The debate is resuming from one week ago. I came to the Chamber and listened to most of the contributions. It is important we get this right as a people and as a society. Sometimes, events can occur that give a disproportionate sense of emergency about something that requires reflective consideration.

Our Constitution holds the life of all citizens, from the start of life, in equal value and equal regard. Understandably and rightly, when a woman becomes pregnant and is expecting to become a mother, if her health is impaired and in danger of existence, the situation that has been upheld is that the medical team attending to the woman will do everything in its professional competence to save the woman's life. If, as a sad side effect, a baby is lost, that is one of those hard, sad facts of life. Since the determination of the X case by the Supreme Court, the delivery of medical services and medical care to the women of this country and any women visiting from abroad is as excellent as humanly possible.

As a human race, we are made up of the complementarity of two genders, male and female. Bringing life into existence requires that balance. We are all the sons or daughters of mothers. We may be the fathers of daughters and the brothers or sisters of brothers and sisters. We are a family. The context of supporting the equivalence of life of everybody, whether conceived and yet to be born or living life through to natural death, means we must as a society continue to have the constitutional framework and the application of the values of the framework in conducting our lives.

Hard cases, such as those considered in the courts, do not necessarily make good law. The law is like a map or a road system for life. Sometimes, to have the principles of conduct within society to determine what is valuable and important to uphold for the citizens of the country can be best delivered with a framework of principles rather than the exactitude, or rigidity, of a law.

There have been difficulties with regard to certain cases and those cases are being referred back to the Constitution where there may not be any certain answers, now or ever.

There are people whose vocation and professional lives are dedicated to delivering the services that look after women, not just in childbirth and pregnancy but in general. There are also paediatricians who look after children and other doctors who look after patients of both sexes. The Supreme Court delivered its judgment and particularised a situation where there was a danger to the life of a woman as a result of the threat of her suicide. It could be, given some of the valuable and expert opinions of the medical profession, that the Supreme Court, with its good intention, stepped outside its competency to particularise a condition in which someone was psychiatrically unwell, and that this posed a real or substantial threat to the life. In recent days, some experienced and wise psychiatrists have questioned the wisdom of expressly mentioning a particular condition that might be a real or substantive threat to the life of a pregnant woman. To legislation for such situations, therefore, might not be wise.

The expert group comprised 14 people, including four lawyers. I am not sure of the ages of the members of the expert group. It is interesting to know that we change our views with experience of life and further evaluation of our lives and our family life. An interesting case in this regard is that of the late Anthony Clare, who was a professor of psychiatry and was well known to most people here, in England and throughout the world, with his wife and he had six children. He had a brilliant academic mind. In the passage of time, his views on the situations in which the termination of the life of an unborn baby might be admissible changed. He moved from what could loosely be described as - and I hate these terms - a pro-choice view of the world to what could loosely be termed a more pro-life view. He was short-lived because he got cancer and died in his early 60s. It took the passage of time, the consideration of more than just the narrow spectrum of a legal or technical debate and the understanding of life through living it to come to that view.

This national assembly of legislators should be careful, and we are being careful. People will say it took 20 years to get to where we are.

The answer to that is that it is better that we make the right decision and create the right framework of principles for the lives of the citizens of the State, trusting the professionals who have delivered one of the world's service in looking after pregnant women and the delivery of babies to date, trusting them to have the values and principles we have articulated to deliver that service. We are not sure if there were any grandmothers were on the expert group or how many were parents.

A life once it begins has required two people to create it, a co-responsibility of the men and women of this country. We should take our time and not rush to legislate or regulate and we must make sure first principles are correct.

Deputy Eoghan Murphy

I have received more correspondence on this issue than any other since my election to Dáil Éireann, hundreds of postcards and letters, and thousands of e-mails. My consideration of this matter did not begin with the tragic death of an expectant mother and her child in an Irish hospital recently and I do not believe it did for any Member of this House. When deciding to enter politics, the issue of abortion is a question that immediately confronts us. We are expected to have a fixed position, to be in a camp. People immediately try to put us in a box, pro-life or pro-choice. Such labels or terms are extreme, however, and in no way do they sufficiently capture the complexity of the issue, the genuine uncertainty that people may have, the possibility that one's own thoughts can change by degree over time, or the myriad of different views that are held on the issue. It is far too simplistic.

Since I entered politics I have tried not be captured by this narrow and reductive attempt by others to frame my own views on the matter. There is a responsibility with this job to try to stand above the fray when deciding upon national issues, to remove oneself from temporal considerations of the matter at hand and consider the longer term consequences, to divest oneself of any electoral considerations, particularly on matters of conscience, and always to exercise one's own judgement as distinct from the opinions of those one represents. This is essential. Every single view possible on this issue is held within my constituency and within my party. How can I represent each view independently and coherently? I cannot; I can only use my own judgement in the matter, or else I betray them all.

There has been some talk around this issue on the necessity of having a free vote when the matter is finally decided on by Government. I support this idea, and not just on this issue. What is a vote worth if it is not free? People fear a breakdown of the whip system if we remove or relax the whip on certain issues and some argue that it undermines the party system. I do not accept these arguments. In other, older parliaments, there is such a system and I believe these parliaments and their political parties to be stronger for it.

On this issue parliamentarians should be allowed to vote based on what they actually think, and to defend that vote, rather than being forced in to a position they do not agree with. By enforcing the whip on this issue there is a risk that we could possibly end up weakening the decision that we ultimately take. Who will be served by such an outcome?

To come straight to the matter, I do not favour abortion. That is my own personal view on this issue but do I have a right to force that view on another person? Whether as a legislator or not, do I have a right to tell a woman what she must do with her body? Does the State have that right? As the State has a responsibility to all our lives, it has a responsibility to unborn life but I do not believe this responsibility to be superior to the State's responsibility to a woman's life, her mental health or her health. I believe that the State has a responsibility to provide for the lawful termination of pregnancy in certain circumstances and some of these circumstances would require a change to the Constitution.

Saying that a person can always travel if absolutely necessary is not the answer. I do not believe I have the right to tell another person what she can or cannot do when it comes to this most important of issues, and I do believe the State has a responsibility to make certain provisions in law. In so far as the report of the expert group on the judgment in A, B and C v . Ireland is concerned, I thank those involved for drafting this report. Although no explicit direction is given, it seems clear to me that the option outlined in paragraph 7.4.3 is the most suitable: legislation plus regulations.

Deputy Michael Conaghan

I well remember the 1983 referendum campaign. It was a bitter, vicious campaign. During the campaign I held a public meeting in my local electoral area. There were no more than ten people present, among them a future President of Ireland, Mary Robinson, and Dr. Paddy Leahy, the general practitioner in Ballyfermot who was a fearless advocate of women's rights throughout the campaign. Also in attendance was a Jewish doctor from Inchicore and a few women. I wonder if I held that meeting now in the aftermath of the tragedy in Galway how many would attend. I believe the hall would be overflowing. Public opinion at that time was fixed firmly against the message we were trying to get across, the message that women's health in all its dimensions must be the overriding priority. Those of us who campaigned against the constitutional amendment were shunned by a large section of society. Names were read out from the pulpit by furious priests and bishops and doors were slammed in our faces, etc.

Since the early 1980s, the debate on legislating for abortion in certain circumstances has always been drawn straight to the extremes. As someone who favours the availability of abortion in limited circumstances, I still consider myself to be pro-life. Killing babies is wrong, let there be no doubt about that. Despite some of the more extreme rhetoric on the anti-abortion side that is not what this is about. This is about achieving a balance that gives due regard to the life, health and well-being of women. Difficult situations exist and arise. Doctors are regularly faced with difficult decisions whereby the life of a mother is in danger. It happens and when it does we must choose on the side of a woman's life. Doctors must be confident that they can make the right decision in the interests of women's health within a clear legal framework free from the spectre of 150 year-old legislation that would have them treated as murderers.

At the heart of the dilemma is the failure of the Constitution and the law to adequately express how to tackle these situations. The legal position as it stands limits the choices a doctor has and, as a result, endangers women. This has been dramatically demonstrated by the case of Savita Halappanavar. Although this tragic case is still under investigation it seems to me that it was preventable; it should not have happened. An option that could have saved her life was closed off to the doctors because of the legal uncertainty.

To atone for this tragedy we must act in the Dáil and introduce the necessary and long overdue legislation. We need to make political decisions to minimise the risk. For too long we have failed to remove the obstacles to protect women's safety during pregnancy and childbirth, the most vulnerable point in their lives. There have been other tragedies many of which have never reached the pages of the national newspapers because women's health has never been properly guaranteed. Therefore, we must act to remove the risk, the burden and the dread and we must act now.

Tragedies such as the recent one in Galway manifest themselves in various forms and at various times. We cannot go back to the days of women being afraid to go to hospital for fear of their lives and instead being driven down the backstreets and into dark basements for illegal, unsafe abortions. The story of nurse Mamie Cadden, who performed abortions in Dublin in secret in the face of the law and who was sentenced to death in 1956, is an example of the desperate choices women were forced to make. Nor can we continue to rely on an English solution to an Irish problem. Abortion is available to Irish women, at least those who can afford it, in England. A total of 4,000 young Irish women avail of this every year. This is not acceptable. These women are forced to travel, often alone, without any support and, on their return, they feel they must hide their shameful secret. They endure an emotional ordeal the likes of which I can only imagine, without access to the psychiatric support etc. they need. Any framework that forces women into this position is wrong. If a women finds herself in a position where she believes she has no option but to terminate her pregnancy, she must have access to support and not be cast out on her own.

The 1983 amendment is a cul-de-sac into which we have pushed women’s lives and we have sent them into this cul-de-sac at the most critical time in their lives. For the pro-life movement, the 1983 amendment was the solution to any future challenge. It put two lives - that of the mother and that of the unborn child - on an equal footing but instead of answering any future questions, this measure has made these questions more difficult to answer. While the idea of another referendum on abortion has, to date, been propagated only by the pro-life side, I also believe such an initiative may be needed to provide further clarity.

The campaign for reproductive rights and women's rights is not new. It did not start last month, last year or even 20 years' ago. A clear legal framework in which pregnancies can be legally terminated has been a political imperative for over 30 years but successive Governments have failed repeatedly to act. I have great admiration for the work of Jim Kemmy. Thirty years ago at the helm of the Democratic Socialist Party, DSP, he charted a practical and courageous course. The DSP was a relatively small party but size did not limit its vision on abortion, Northern Ireland, Europe, workers’ rights, the patronage of schools and many more subjects. The course it laid out on abortion was not a popular one at the time but one would have to admire the courage and foresight that Jim Kemmy and the DSP demonstrated.

At that time, one church set the moral parameters of political discourse and no established party was prepared to take it on. The orthodoxy at the time was that women had to take their chances and take their lives into their own hands. Jim Kemmy publicly challenged this orthodoxy and our entire political culture, and he paid a political price for it. The position that Jim Kemmy outlined and defended in the face of widespread opposition would have prevented many of the terrible, gruesome situations which have arisen over the past 30 years. He firmly believed that an absolute prohibition on abortion could not be justified as it may be necessary in certain, limited circumstances. Had his course of action been followed, X would not have needed to go to the Supreme Court in such tragic circumstances. Twenty years later, C would not have needed to go to the European Court of Human Rights. Although all the facts are not yet clear, I believe that had Jim Kemmy’s course been followed in 1983, the circumstances of the tragic death of Savita Halappanavar may never have arisen. The following is an extract from the DSP's "Outline Policy on Women’s Rights", first published in 1982:

The woman who finds herself with an unwanted pregnancy is presented with a catch-22 situation. Does she hide herself in a maternity hostel for 6 months, in the process losing her job or missing essential schooling? Does she face the social ostracisation of neighbours and work-mates for 9 months and then go through the trauma of adoption? Does she try to keep her child and spend many years in a desperate economic struggle, all the time apologising for her child’s existence? Or does she take the boat to England and have an abortion? Thousands of Irish women are annually making the latter choice. Many of these women are pregnant as a result of the inadequacy of contraceptive facilities here. Many are extremely young and pregnant through ignorance due to the lack of adequate sex-education in schools. Some are pregnant as a result of rape. Under Irish law, they are criminals if they opt for abortion. The morality which says to these women and girls that they must suffer the consequences, and which at the same time, ostracises the unmarried or widowed woman who is pregnant, must be exposed for the hypocrisy it is. The D.S.P. while opposed to indiscriminate abortion would consider it as a solution: where a woman’s life is endangered by pregnancy; where pregnancy has resulted from rape or incest; and to the terrible problems of congenital abnormality of the foetus which makes survival outside the womb impossible. The DSP confirms its view that this is a perfectly moral position to uphold in a pluralistic Irish society.

This policy, considered barbaric by so many when it was first outlined in 1982, appears so reasonable and sensible to the majority of Irish public opinion 30 years later. A generation later, our political culture has broadened and finally caught up, and as we move forward, I suggest that this framework may well be the best guide. This sensible, moral position cost Jim Kemmy his seat in Dáil Éireann in 1982. During this campaign, he was denounced from the pulpit and pilloried by the local press, with the Limerick Leader writing "Abortionist Jim Kemmy is hitting below the belt" and "let the people decide which is the better way – the pro-life way or Kemmy's way of death".

His brave and prescient position was exploited by his political opponents and his seat was lost. This was the price he paid for his foresight and commitment to women's rights. I am very happy that 30 years later public opinion has shifted so far towards what Jim Kemmy believed. I only hope now that the Members of the House honour his memory by doing the right thing and not shirking their responsibility as legislators and take the long overdue steps needed to protect women's lives.

Deputy Deputy Derek Nolan

I commend my colleague, Deputy Conaghan, on what was a very thoughtful speech on his personal experience and engagement with the issue over the past 30 years. I also commend the late Jim Kemmy and another former Member of the House who lost his seat for taking a courageous position on the issue, namely, the President, Michael D. Higgins.

As a constituency representative of Galway West I wish to express my deep sympathy to the family of Savita Halappanavar, her husband Praveen, their relatives in India and their friends in the Indian community in Galway. They and their family were affected by a huge shocking human tragedy and inquiries are under way. I look forward to seeing these inquiries obtaining responses and clarifying the facts at the earliest opportunity.

During my short time in politics the issue of medical termination of pregnancy has been the most divisive and polarising issue with which I have had to engage. It has been around for a long time, since the 1983 amendment when people such as Jim Kemmy, Michael D. Higgins, Mary Robinson and others took the brave steps outlined by Deputy Michael Conaghan to fight for a more rational and nuanced approach recognising the vagaries of life, the grey areas which can creep into discussions and the circumstances which may require compassion and leniency rather than strict orthodoxy.

The X case resulted less than ten years later in 1992, and the Supreme Court upheld a different interpretation, stating there is a right to termination where there is a real and substantial risk to the life as distinct to the health of the mother. This decision caused uproar throughout the country in the time before I was involved in politics. It is interesting to look back now at the viciousness of the exaggerations and hyperbole involved in the discussions because the same exaggeration and hyperbole has come back into the discussion again today. Nothing dramatic has happened in the past 20 years. It is also interesting to note what happened in the aftermath of this decision. Three referendums were put to the people in which they were asked three distinct questions, namely, should a woman have a right to travel to have a termination to which the people said "Yes"; should a woman have the right to information about accessing services abroad so she can know where the services are and how to procure them to which the people also said "Yes"; and should we overturn the Supreme Court decision which stated suicide is a grounds which justifies risk to the life of the mother to which the people said "No". The people deliberately and with discernment voted "Yes" in two cases and "No" in the other.

We should not forget the details of the X case. A 14 year old girl left at home to be minded by a family friend was raped and impregnated. She was left in a terrible mental health state and suicidal. She wanted to travel to the UK to terminate the pregnancy. This is the case we are discussing. We are not speaking about a woman of majority age deciding she wanted to go for another reason. We often forget the cruel and human story behind the X case.

It is always worth keeping that in our minds.

On the judgment in A, B and C v. Ireland, we must be clear, first as legislators. We cannot distinguish ourselves from this as legislators. The European Court of Human Rights, of which we are a signatory and which is designed to uphold human rights in Europe, makes clear that we must implement the law that our country has on its books, we must make clear when a right to termination exists, we must make clear how that right is assessed and we must make clear how that service is to be provided. Let us never say anything other than that the European Court of Human Rights is telling us that our law, that has been voted on by the people, ought to be implemented. That is what it is, nothing more. We are not being told we must offer services. We are being told that our existing law, that we have voted on and that the Supreme Court has dealt with, must be implemented. We are legislators. Indeed, we are members of the community, representatives and members of families. We are, as Deputy Mathews stated, fathers, grandfathers, brothers and sons, but we are still legislators and there is a law in this country that needs to be implemented.

I note the atmosphere within which this debate can often take place. The downright viciousness of those on the extremes of the pro-life lobby cannot be underestimated. I campaigned in the past general election to legislate for the X case, this extremely specific set of circumstances that is the law in this country. There were protests outside my office. There were illegal posters put up all around my constituency stating that Labour would introduce abortion on demand and there were 200,000 abortions per year in the United Kingdom. There were leaflets handed out at churches, one of which was given to my father telling him that the position on which I was campaigning was a pro-choice abortion-on-demand service. That is what this discussion often becomes saturated with, this invidious atmosphere with vicious, uncompromising, unrealistic, unnuanced and non-factual arguments. However, I have real respect for persons of genuine belief and reasoned debate who are of a pro-life position because it is a perfectly tenable and respectable place to be, but I would argue that what we are discussing today, which is the implementation of the X case ruling, is perfectly compatible with and, indeed, should appeal to those of a pro-life position.

The X case sets two issues. The first is where there is a real and substantive risk to the life, as distinct from the health, of the mother. We are saying that a termination should be afforded where there is a risk to the life. We are not concerned here with any other reason, but about life-saving treatment. Where a termination is a life-saving treatment to the mother, it must be available. That ground, or area where that decision can be made, has not been clarified by law. There are doctors, including the highly respected Dr. Peter Boylan, former master of the National Maternity Hospital, who have stated that where the risk is clear there is no problem and it works fine, but there are grey areas. There are situations where doctors, practitioners, nurses, etc., worry about these grey areas. One such is the need to make a critical medical decision quickly and in good faith. Another is the fear of the risk that one could be reported by a colleague who holds a contrary opinion with the result that one could be prosecuted under the Offences Against the Person Act 1861. We need to give doctors legal certainty, clarity and assurance when they are acting in good faith to save the life of a mother.

The second issue which causes major problems in terms of the public discourse is the ground that a risk to the life of the mother includes the risk of self-destruction or, as we call it in more everyday language, suicide.

It is worth listening to the experts who operate in this area. One of those to whom I have listened on the radio is Dr. Anthony McCarthy, a consultant perinatal psychiatrist. Another, and with whom I have discussed this issue, is Professor Veronica O'Keane of Trinity College, Dublin. As professionals, they are very much of the view that the suicide issue is a real one that has to be taken seriously. These people of sound medical practice are a rock of sense. They say the suicide issue is serious and the assessment of it should not be a tick-the-box exercise where we simply go through the motions. At the end of the day, their duty as doctors is to the mental health of their patients. That assessment therefore should be real, not a tick-the-box exercise.

In our debate, we run the risk of talking about women's suicidal feelings as something that should be ignored or stigmatised. The cavalier manner with which the risk of suicide and mental health is dismissed by some people on the pro-life side of the argument is very worrying. We regularly have debates in this House on suicide, depression and destigmatising mental health. Yet as soon as it comes up as an issue to do with the termination of a pregnancy it is to be dismissed as fake. As one psychiatrist said - I think it was Patricia Casey - there is a book one can get which will tell one how to fake suicidal tendencies. She said that one can just read the book and have one's script ready when one goes in to the doctor. It is appalling and scandalous for someone who works in our medical services to be saying that kind of thing to the public, including women, in this country. Women in my constituency have told me that the last person they would go to see - and from whom they would refuse treatment - is that lady. I will leave it at that, a Cheann Comhairle, and I apologise for straying.

An Ceann Comhairle

Please be careful about questioning people's professionalism and mentioning names.

Deputy Derek Nolan

I agree and I withdraw that.

An Ceann Comhairle

Thank you.

Deputy Derek Nolan

The two other perinatal psychiatrists, however, said that suicide in pregnancy exists and is real. For the majority of women the last thing they would do would be to suggest or prescribe a termination. It is a mental health issue and there are ways to treat it. One treats it as one would the risk of suicide in other areas. Nonetheless there are examples, known to the medical professionals, where it is prevalent to such a degree that this approach should be taken. If only one woman per year or per decade is at such risk, that woman needs to be protected. She needs to have her rights vindicated and her right to life - for that is what we are talking about - as a mother and as a woman protected. The reality is that at the moment we send people to England and they are afraid to come forward.

When we are discussing this in future and if we get to deal with legislation, the doctors have asked for two options. One concerns how to deal with the majority of cases of women who will not require a termination. They will require medical help and counselling. The second concerns dealing with those exceptional cases that may require it. We need to be cognisant of both possibilities when we are debating and putting forward legislation.

I also wish to refer to some of the arguments that have come forward against this matter. The first one is that the Supreme Court judgment is flawed. That is a very cavalier thing to say. It was said in this House on a number of occasions that five members of the Supreme Court got it wrong, even though in two referendums the public upheld their view. Simply refusing to accept the judgment does not make it flawed.

The second argument, which we hear a lot, is that Ireland is one of the safest places in the world for women to give birth. I do not deny that but the safest country is Italy which has a much more liberal regime on these matters. Therefore it is a nonsensical argument and it should stop being cited.

The third argument is that we are going down the route taken in the UK. This is the most unfair argument of all because the UK law is based on the 1967 Act which refers not to the life of a woman but to her physical or mental health.

It refers to mental or physical abnormalities or serious disabilities. As none of those scenarios would happen in Ireland, where a constitutional protection is in place on the life of the unborn, this again is a complete red herring.

The fourth argument one hears, which is technical in nature, is that the Supreme Court did not hear medical evidence when it was making its decision. This goes back to the idea that the judgment was flawed. However, the Supreme Court never hears evidence. It is an appellate court that hears appeals from the High Court, which hears evidence. Moreover, in the instance of the X case, the risk of suicide was accepted by both sides and therefore, it never came into issue.

I thank the Ceann Comhairle for his indulgence and will conclude by noting that I am very aware that as a man, I will never be in this position. However, I do not believe this precludes me from having an opinion on the subject. I like to think that I represent women, that I represent my mother, my sister, my friends, my colleagues and people with whom I work. Members never should forget they are discussing scenarios in which a woman's life is at risk. They are discussing very limited circumstances, as I have outlined on the issue of suicide, in which it may occur. However, the broader issue of the right to life and the clarity for doctors must be clarified. Finally, I note the X case judgment is the law in Ireland and Members must legislate for it because it is the law of Ireland that has been upheld twice by the people in referendums. The grounds to which it refers, that is, a real and substantial risk to the life of the mother, are nothing short of a pro-life position and everyone should be able to subscribe to protecting that and to vindicating that right.

Minister for Children and Youth Affairs (Deputy Frances Fitzgerald)

I am pleased to have the opportunity to make a statement on the report of the expert group on the judgment of the European Court of Human Rights in the case of A, B and C v. Ireland. I first wish to put on record my appreciation for the work of the expert group and in particular, that of Mr. Justice Seán Ryan, for the commitment, sensitivity and consideration the group has given to this complex issue. Anyone who wishes to speak on this issue really ought to read the 55 pages in this report for its preface, the summary, the legal provisions, its clarity in respect of the cases that have arisen thus far and its summary of the key principles. It has been done very well.

The European Court of Human Rights accepted that Article 40.3.3° of the Irish Constitution provides it is lawful to terminate a pregnancy if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by a termination of the pregnancy. This remains the constitutional position today, unaltered by the decision of the European Court of Human Rights. The constitutional obligation also on the State is, by its laws, to respect and as far as practicable defend and vindicate the right to life of the unborn and these provisions must of course be borne in mind in the mode of the implementation of the judgment.

In the A, B and C v. Ireland ruling, the European Court of Human Rights requires us to give practical effect to our constitutional position. The report of the expert group recommends a series of options on how to implement this judgment, taking into account the constitutional, legal, medical and ethical considerations involved in the formulation of public policy, as well as the overriding need for speedy action. The report provides a range of options that must be considered carefully. In theory, Members present today should agree on at least one thing, namely, the Irish Legislature has grievously failed in its duty in respect of abortion. It should be easy to agree on that as a first principle. The European Convention for the Protection of Human Rights and Fundamental Freedoms is an international agreement that Ireland has signed and ratified and which, in consequence, is legally binding. This duty to comply with the judgments of the European Court of Human Rights is an integral part of the scheme of the convention. Although these Houses have failed to legislate on this issue for more than 20 years, the reality is that over the past two decades, few Deputies or Senators have been idle on the matter or uninterested or without conviction. Members stand today at yet another infinitely painful point in a two-decade sequence of difficult and painful cases, Irish and European case law, reports, Green Papers, deliberations by an Oireachtas constitutional committee and periods of intense public debate.

Some of my colleagues in this House are young enough not to know much about the campaigns and debates of the 1980s and 1990s but both were impassioned. It was often the level of passion which rendered problematic, if not impossible, the task of legislating.

We must now repair the gap, the lack of trust and the uncertainty that has now developed between the people, their legislators and the maternity hospitals with regard to pregnancy. We must make explicit the standards and regulations guiding the delivery of one of the best maternity services in the world. We must, in short, act as the Government pledged it would in the light of the advice of the expert group. How we act will have a powerful if indirect effect on the confidence of women, their partners and families in the consistency and high standards of care provided by Ireland's maternity services.

Let us also face another reality for Irish women. As of this year, more than 4,000 women travel annually out of Ireland for terminations. These are daughters, wives, partners, sisters, mothers, friends and work colleagues. They range in age from the very young - some 11% are teenagers - to the 37% who are aged 30 or older. They are ordinary Irish women who for many different reasons face a pregnancy they believe they cannot continue. Some have sought counselling or support before making the decision but many know that despite the support and promotion of counselling and related services, there is an underlying Irish code of "Don't tell, just go."

The people involved in such cases frequently find themselves ridden by internal contradictions. One woman told me she voted "pro-life", as she termed it, in the 1983 referendum, and she also told me her daughter had a very serious crisis pregnancy, and she had taken her for an abortion. She said, "I voted pro-life to stop irresponsible demands for abortion". That makes sense and it makes no sense, that is, just as it makes sense to say Ireland does not have abortion, it makes no sense when we know Irish women travel to have terminations in our neighbouring jurisdiction. It makes sense to be fearful of change and it makes no sense to brand women as being duplicitous and untrustworthy, likely to claim suicidal thoughts and pull the wool over the eyes of the medical profession in an effort to seek the option of an abortion.

Since when has it become permissible to make such bald and dismissive statements about women and people presenting with serious mental health problems? Since when has it become permissible to resist the idea that pregnancy might trigger or could exacerbate existing mental health conditions? Let us not go there or attribute ruthless, uncaring duplicity to women we do not know and who in the distant future may have a crisis pregnancy. We do not progress in that way.

Where we have progressed it has come through respectful responses to reality. Our attempts to reduce the levels of unplanned pregnancy and provide better support and encouragement - there is history in that regard - to women in choosing to have their babies have, I am thankful, made some progress. We have a long way to go and I certainly favour a more determined and intensive level of attention to the work of the crisis pregnancy unit of the Department of Health. That was formerly an independent agency but it is now working as part of an interdepartmental and inter-agency national action plan.

This debate has specifically been about a failure to act in the wake of the X case and in light of the cases which have arisen since. It has resulted in an unacceptably grey area in medical practice. The masters of some of our maternity hospitals and many other health professionals insist that clear law, supported by equally clear regulation, is essential.

As we move to meet this need, we must not segregate women into the selfish majority who are not to be trusted in this area and the tragic few hard cases as to do so would be irresponsible and shameful.

This Government is committed to doing what no Government has done before. We will make the necessary changes to bring clarity to this issue by regulation, legislation or a combination of both. After years of inaction, we will deliver a clear framework for medics and women in their care whose lives are at risk. We must also take some other steps. We must acknowledge in our health statistics information on Irish women who travel to other jurisdictions for terminations.

We must also acknowledge the painful reality for those expectant families who are faced with the news that their baby will not survive outside the womb. These tragic cases of fatal foetal abnormality, as the A, B and C report acknowledges, are generally considered to be outside the principle arising from the X case. I recently met a woman who experienced such circumstances; her story is representative. Sarah and her husband John were delighted to be pregnant in 2009. Scans taken at the Coombe Hospital in the 13th week showed a pregnancy that was progressing normally and later, in the 26th week, that Sarah and John were expecting a daughter. Within days, however, the position changed as a further scan showed a fatal foetal abnormality. The couple's daughter had anencephaly - she was not forming a brain - and would not survive outside Sarah's womb. Sarah suddenly knew that medical treatment which could save her baby was not available and her daughter would not live. She assumed that a Caesarian section would be scheduled because it did not occur to her that anything other than this would happen. However, she then found herself in the twilight zone the Irish health system becomes when such a crisis arises. Sarah's circumstances were not normal and the diagnosis was clear. She was informed she could travel to Britain to be induced in an English hospital. She, her father, who is from the midlands, John and his mother sought and obtained in England the care Sarah needed. Although it was clear to Sarah and her family that her doctors were unable to act in her circumstances, at least they were aware of all the options, which is not the case for everyone. What is evident from anecdotal evidence is that when such circumstances arise, there is no consistency in care, advice or practice.

Some question marks have also arisen about the accuracy of Irish statistics on maternal deaths. We must have accurate data on maternal mortality, the number of diagnoses of fatal foetal abnormalities and the care given to women in such circumstances. We must face reality by gathering statistics in these areas to understand precisely what is happening in our hospitals. We cannot have grey areas on this matter as the position is not fair on the medics and women involved. As I stated, a review is also needed of the crisis pregnancy division of the Department of Health to identify what more we can do about the continuing unacceptably high rate of crisis pregnancy in Ireland.

Whatever guidelines are developed as a result of the events of recent months, they must be enacted in the common good and respect the fact that the people who live here are of many faiths and none. No patient in a State hospital should be ever told his or her care is driven by anything other than our laws and best medical practice. Let us stop the discourse that is based on the illusion that we do not have abortion in Ireland. What we do not have are the hospital services and legislative framework and the reason the current position is sustainable is that our close neighbour provides both.

Can the legacy of recent weeks and our accumulating understanding of our flawed system lead us to holding a national debate which grasps the reality and complexity of crisis pregnancy? I sincerely hope so.

Minister of State at the Department of Finance (Deputy Brian Hayes)

I place on record my appreciation of the work done by Mr. Justice Ryan and the other members of the expert group.

They have done the State a great service, not just in terms of the way in which the report was written, but also the way in which the options were clearly set out therein. I encourage everyone to read the report. As the Minister, Deputy Fitzgerald, stated, it is written in clear language and people both inside and outside the Houses will understand the full import of its contents.

I will outline where our responsibility lies. The Houses of the Oireachtas comprise the elected representatives of the Irish people. As legislators, we have a duty under the Constitution to act when the situation demands it. We have delayed for far too long. Twenty years ago, the Supreme Court outlined what needed to be done. Over the years, many medical professionals working in this area have also called for legal clarity. Most recently, the European Court of Human Rights has demanded action.

The failure of successive Governments to act has put the lives of women at risk. Too often, we only respond when a crisis develops. This generation of legislators is now called upon to exercise its duty. We must not be afraid to do so. Legal clarity and a full, proper legislative response to the issues contained in the X case ruling of more than 20 years ago are required.

We are faced with the complex work of drafting a legal framework. Our work must be guided by the Constitution and the Supreme Court's interpretation of it. We have a duty of care to this and future generations of women. Women are not some abstract concept. They are our wives, partners, daughters, mothers, sisters and neighbours. They are the ones who must take on the joys and burdens of child bearing. I sometimes believe that, if men had the responsibility, there would be few children in the country. We must do everything possible to lessen the fear and risk for women who are pregnant or may become pregnant. In this debate on these complex issues, I will give greater weight to the opinion of women in all of its diversity.

We also have a duty to provide greater legal clarity to doctors and other health professionals. We must accept that it will never be possible to provide for each and every eventuality. In a real life risk situation, the wishes of the person carrying the risk must be given the greater weight.

We must also be guided by a thoughtful, ethical approach and by respect for human life in all of its forms. Science and medicine should inform our thinking, as should our cultural and belief systems. Science informs us that life is a continuum. Human life has its beginning during the process of fertilisation, during which each of us obtains a unique genetic heritage. However, on an ethical and philosophical level, it is important to distinguish between potential and actual. That new beginning is not yet an actual human being, but it has the potential to be so. A human being is a process of becoming, through gestation, birth and beyond into a full adult life. Article 40.3.3° on the unborn's right to life expresses the strongly held view of the people that all human life deserves respect and protection.

The abortion debate in Ireland and other countries has been characterised by extremes. At one end of the debate is the absolute right of the mother to choose irrespective of the stage of pregnancy or the development of the unborn. At the other extreme is the view that a full human being is created at fertilisation and that its life must take precedence over the health of the mother irrespective of the circumstances. Indeed, it is one of the great ironies of recent Irish history that the so-called pro-life campaign and its refusal to listen to others facilitated the introduction of abortion to Ireland.

I reject both extremes. I reject absolutes. Life is not lived in some kind of ideal world of platonic absolutes. Life is not lived in black or white. Life is lived by real people in real time. In the midst of enjoying the pleasures and happiness that life brings, we must also deal with the mess that comes from being human.

Where a pregnancy is not sustainable for medical reasons, the decision to end the pregnancy must rest with the woman in consultation with the medical team. Where a pregnancy triggers a new serious medical condition because of an existing medical condition and where those conditions pose a real and growing threat to the health and possibly to the life of the mother, decisions on termination must rest with the mother in consultation with the medical team.

The expert group is correct in its interpretation of the Constitution that where it is proposed to terminate a pregnancy, every effort must be made to save the unborn. Obviously, important and difficult clinical decisions may must be made surrounding the viability of the unborn and the associated issue of the timing of termination. The insertion of Article 40.3.3° into the Constitution had unintended consequences. It is important that the legal framework being considered is open to maximum scrutiny and debate. That is why it is right that the Government's proposals in the first instance will be discussed at the relevant Oireachtas committee and in the plenary session of this House.

Many thousands of Irish women have terminations every year, as stated by the Minister, Deputy Fitzgerald. They have them in Britain. It is estimated that perhaps 150,000 Irish women may have had terminations. We also have a duty to consider how the numbers might be reduced. Unwelcome and unwanted pregnancies are always going to happen. Women need effective and practical support in such situations.

In all the recent coverage on this issue, a letter by Canon Stephen Neill in The Irish Times on Thursday, 3 November most accurately reflected my views. He wrote in that letter the following:

The only hope for a reasonable debate and a mature and responsible approach to this issue which we have never faced up to as a nation is for the middle ground to find its voice. It is possible to be both pro-life and pro-choice. We can simultaneously respect the right to life of the unborn and the life of the mother.

That is the challenge facing us as legislators, to find that middle ground, where we can show reverence for all human life and respect the lives and difficult decisions faced by real people as they live their lives in ever-changing times.

Six weeks before Dr. Garret FitzGerald's passing, I had an opportunity to meet him for a lengthy lunch and conversation. It was a great privilege to discuss with him a range of issues that we faced at the time but also issues that arose during his time in politics. At the end of our discussion I asked Dr. FitzGerald the issues on which he made mistakes during his time in politics. He spoke honestly and eloquently about his deep regret in agreeing to the demands for a constitutional referendum on this issue in the early 1980s. The issue became, as he described, entangled in party politics and in the fervent political atmosphere of the time, where there were three general elections in 18 months.

Dreadful mistakes have been made on this issue since the early 1980s. I believe, however, that the majority of people, while opposing an abortion regime, want this issue resolved within the context of the Supreme Court ruling on the X case and the legal and regulatory certainty that follows that for women and their doctors. The Constitution is the Constitution. Under the Constitution, the Supreme Court has the sole right of interpretation. Ignoring its interpretation of more than 20 years is no longer an option for the Government and the House.

Deputy Regina Doherty

I thank Mr. Justice Sean Ryan for the work and commitment he and his team put in during their deliberations, given their terms of reference.

For me, as a new Member of the House, he produced a report that was exceptionally easy to read and understand, particularly given the difficult topic on which he had to deliberate.

We have been talking about this subject for years. It is an intimately personal issue. People say all politics is personal but this issue is particularly so. We do not think just about abortion or medical interventions. We are talking about raw emotions and uncanny feelings when discussing the lives of our loved ones, mothers, brothers and sisters. When we are confronted with emotional challenges they generate different feelings in us and in the past number of years this issue has grown to be a very raw subject for some people. I have struggled with it a great deal since Deputy Clare Daly introduced the first Bill on the subject.

I have thought a great deal about the eighth amendment, what it means to me as a human being, a Catholic and a mother and the exceptions to that amendment which we have discussed in recent months, that is, what they are, how we can deal with them and how to be compassionate and not considered cold feeling. I have done a great deal of soul searching in the past couple of months and what I keep coming back to is how much I cherish life - I refer not just to my own life but all life, the lives of the people I love and the lives of the people in our community - and how much respect each of us has for the gift of life. Many people will not feel the same as me but I believe life is a gift and something to be cherished and respected. It must be thoughtfully considered when discussing abortion.

Human beings inserted the eighth amendment into the Constitution in 1983 because they are full of kindness and understanding. That is the way we must approach the current issue presented to us. One would have to be the most unfeeling and uncaring person not to appreciate the pain and tragedy of the loss of Savita Halappanavar a number of weeks ago. Notwithstanding that, however, we must look at the medical treatment and interventions that happen each day for women in this country and stop saying the reason we must deal with this issue is that there is a question mark or some uncertainty in that regard. The uncertainty for many of us stems from the issue of including suicide in legislating for the X case. It is difficult for somebody who has a genuine fear that once the door is open it will not be capable of being closed. Deliberating on this in the Oireachtas committee in the next few weeks will provide us, hopefully, with some type of mechanism or architecture for allaying the genuine fears that exist, particularly for me and some of my Fine Gael colleagues.

At the end of this process I want to find myself in a situation where I can support legislation that will provide for the best medical practice and interventions. The journey I am on at present is to try to understand and appreciate how we can provide in legislation for something which, for me, is as abstract as the ruling which states that where it is a matter of probability there is a real and substantial risk to the life, as distinct from the health, of the mother it can be avoided only by the termination of pregnancy. I have real difficulty with that. I cannot genuinely understand how that could be a treatment for or resolve any issues for people who are suffering from mental health issues or severe depression. That will be my difficulty over the next few months. However, I am very open minded and willing to sit through the Oireachtas committee hearings on 8, 9 and 10 January and the deliberations and debates in the House thereafter. I look forward to it.

One thing that upsets me in this debate, however, is talk about the differences in when some people believe life genuinely starts. I heard a quote yesterday which sums up the issue for me. It is that we do not grow into human beings, we grow as human beings. I genuinely believe that life begins at conception and that is why this debate and the treatment of this issue must be so respectful. Life is there from the moment of conception and we must tread exceptionally carefully.

Minister of State at the Department of Health (Deputy Kathleen Lynch)

I thank all the Deputies for their thoughtful and considered contributions to this discussion. We have heard many differing views and they will be useful in informing tomorrow's Government decision on the option to be pursued to implement the judgment of the European Court of Human Rights in the A, B and C v. Ireland case. To conclude this discussion, I restate the Government's commitment to implement this judgment and to bring the required legal clarity to the issue of lawful abortion in Ireland. The decision by the Government will be within the confines of Article 40.3.3° of the Constitution and its interpretation by the Supreme Court. The joint committee on health and children, as was mentioned by Deputy Regina Doherty, will commence its public hearings on the implementation of the options chosen by the Government before the resumption of the Dáil in January. We all look forward to that.

It is important to restate the position. I listened to the contributions and I would not disagree with the majority of them. When the Government decides to legislate or to legislate with regulations and I believe it will be a mixture of both - it is no longer an option to do nothing - it will not meet the expectation of the majority of Irish people. The eighth amendment to the Constitution and the Supreme Court's decision leave us in a position that all we can do is legislate or regulate in such a restrictive manner that there will be another case that will demand our attention in the future. People expect that when the Government acts in this case its action will be encompassing and deal with the issues that face women every day of the week, but that is not the case. What we will be able to do will be so limited that there will be another case.

When are we going to mature? My position is very like that of the Minister, Deputy Frances Fitzgerald. I am not on one side or the other. Indeed, as the Minister of State, Deputy Brian Hayes, correctly said, the middle ground needs to find its voice, and I am very much on that ground. When will we give doctors and the people who treat women certainty in terms of health? We all know that women have completed a pregnancy despite medical advice that it would cause serious impairment of their health for the rest of their lives. It is very difficult to know when one's health deteriorates to such an extent that it will result in one's life being lost. That is the difficulty. When will we allow women, in consultation with their medical teams, to make decisions for themselves?

The key to all of this debate is the issue of trust. Do we trust our mother, sister, aunt, friend, wife or partner or are we putting women in a position that they will have to feign insanity to do what they believe is the right thing? Nobody wants termination of pregnancy as a contraceptive. However, trust is central to this argument. We will now either legislate or legislate with regulations. Mark my words, however, there will be another incident, and we will have to return and confront this issue again. What we are about to do is far too narrow.

I genuinely appreciate everybody's point of view on this issue, but more tolerance and debate will be necessary because it is not over yet.

Dáil Éireann díospóireacht -
Monday, 17 Dec 2012