Legislate for where life impossible

March 2015 31

HE recent Dáil debate on a private members bill

to provide for terminations of pregnancy in fatal

foetal abnormality has raised important human

and legal concerns. The bill was opposed by Government

on the basis of the Attorney General’s advice that its text

was incompatible with the Constitution. However, at

my request the Oireachtas Committee on Health and

Children has agreed to conduct hearings later this year

into whether it would be possible to legislate on this

issue within the current Constitutional framework.

In June 2012, I was one of the group of twenty

Labour TDs, Senators and MEPs who signed a letter to

then Health Minister James Reilly stating that women

and couples facing the tragic and traumatic personal

circumstances of a diagnosis of fatal foetal abnormality

should not be forced to travel out of Ireland to terminate

their pregnancies. On an analysis of the relevant law, and

in particular the 2005 European Court of Human Rights

(ECHR) case of D v. Ireland, we argued that legislation

permitting terminations of pregnancy in cases of

fatal foetal abnormality could be drafted in a manner

compatible with Article 40.3.3 of the Constitution.

In the D case, one of the twin foetuses that D

was carrying was already dead and the other had a

diagnosed fatal foetal abnormality. D had to travel to

England to terminate her pregnancy in these terrible

circumstances. She then took her case to the ECHR,

arguing that she should have been able to terminate her

pregnancy in Ireland. However, the Irish Government

argued that D should have brought her case in the Irish

courts, as she was likely to have succeeded there.

The European Court accepted this argument,

agreeing that: “there was ‘at least a tenable’ argument

which would seriously be considered by the domestic

courts to the eﬀect that a foetus was not an ‘unborn’ for

the purposes of Article 40.3.3 or that, even if it was an

‘unborn’, its right to life was not actually engaged as it

had no prospect of life outside the womb”. (para 69).

The Court concluded that if she had initiated her case

before the Irish courts D’s case would have been “an

arguable one with suﬃcient chances of success” to mean

that a domestic legal remedy was therefore in principle

available to her, and she should have pursued her case

through the Irish courts. Accordingly her application to

the European Court was ruled out of order. The judgment

in D v. Ireland clearly envisages that terminations of

pregnancy in cases of fatal foetal abnormality would

be declared lawful in Ireland under Article 40.3.3 of the

Constitution.

Give n t hi s le ga l a n al ysi s, leg isl at ion set tin g ou t cr it er ia

for fatal foetal abnormality could be drafted so as to

be compatible with Article 40.3.3 of the Constitution,

and therefore capable of being introduced without

constitutional amendment. That

is why I am very pleased that the

Oireachtas Committee agreed

to undertake a review of the

relevant law to examine whether

it would be possible to draft

legislation, compatible with

Article 40.3.3, setting out the

criteria whereby terminations

of pregnancy might lawfully

be carried out in cases of fatal

foetal abnormality.

I accept that such legislation could only apply to those

cases where doctors were certain that there was no

prospect of the foet us being born alive. It could therefore

only provide support to a small number of those who

receive a diagnosis of fatal foetal abnormality.

The real problem is the language of Article 40.3.3.

For over thirty years, its restrictive eﬀect has caused

pain and distress to women, their doctors and families.

As Master of Holles Street Dr

Rhona Mahony recently said,

under the current Constitutional

framework, doctors are forced to

wait until a woman’s condition is

clearly life-threatening before

they may terminate pregnancy;

serious risk to health is not

enough.

Repeal of the Eighth

Amendment (Article 40.3.3) is

necessary before we can legislate

eﬀectively for terminations of

pregnancy, not just on grounds

of fatal foetal abnormality, but

also on grounds of risk to health,

rape or incest. Within the Labour

Party, we have initiated a Labour

Women Commission to develop

a policy on repeal of the Eighth

Amendment, ensure that, if

Labour is in Government after

the next election, a referendum

will be held, and secure the

introduction of sensible and compassionate legislation

on this issue.

The Protection of Life During Pregnancy Act was long

overdue and welcome. However, there is now clear public

s up p or t f or le g i sl a t io n a l l ow i n g a b or t i on on a w i d er r a n ge

of grounds. We must work towa rds holding a referendum

to remove Article 40.3.3 from the Constitution, so that

progressive legislation can be introduced to address the

real reproductive health needs of Irish women. •

Change

constitution

to allow for

termination of

pregnancies

in other cases

of foetal

abnormality and

of rape or incest

Legislate for where life impossible

IVANA BACIK

I accept

that such

legislation

could only

apply to that

small number

of cases where

doctors were

certain that

there was no

prospect of the

foetus being

born alive

“