Legislation must be introduced urgently

Friday, November 16, 2012

Twenty years on from the X case, the Government must act to bring certainty to abortion law, writes Jennifer Schweppe

THE submission of the report of the expert group on abortion to the minister for health coincided with the reporting of the Savita Halappanavar case.

While theoretical arguments can be made in the abstract about the distinction between life and health, and whether termination of pregnancy is ever truly medically necessary, the Halappanavar case throws these questions into stark relief. There have been several cases regarding the right of a woman to terminate her preg-nancy when her life is at risk. What is different about this case is that it asks what “life” means for the purposes of Article 40.3.3 of the Constitution.

Termination of pregnancies in Ireland is unlawful unless the circumstances of the case fall within the boundaries set out in the X case in 1992. In that case, the Supreme Court said abortion was constitutionally permissible where there is a real and substantial threat to the woman’s life. Alongside this, the Medical Council has clearly established the circumstances in which “therapeutic intervention” is justified which has the effect of terminating foetal life. This means there are certain medical conditions, the medical treatment for which has the effect of terminating a pregnancy, that are not considered an “abortion” by the council.

The Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners states that termination of a pregnancy can be required when “due to extreme immaturity of the baby, there may be little or no hope of the baby surviving”.

In one sense, this particular part of the guidelines seems reasonably well constructed. Where there is little or no hope of foetal life surviving outside the womb, termination is justifiable. In these circumstances, which the guidelines admit are “rare”, there is no requirement that the life of the woman is in danger; rather, termination is permissible where the life of the woman is in need of “protection” rather than “saving”.

The inclusion of the maternal interest here, however, seems rather puzzling. Where there is no prospect of life outside the womb, is this “life” within the meaning of Article 40.3.3? The question as to when life begins has been examined by the Supreme Court in Roche v Roche and by the Commission on Assisted Human Reproduction. However, there is still no legislative position on when life begins. The question as to when life for the purposes of the Constitution ends, or even what life means in this context, has not ever been addressed.

Both the D v Ireland case of 2004, and the Miss D case of 2007, concerned women whose pregnancies were not viable. In the former case, D was pregnant with twins, one of which had stopped developing at eight weeks, the other of which had a severe chromosomal abnormality, Edward’s syndrome, a lethal condition which would lead to the death of the child shortly after birth.

In the Miss D case, the foetus was also suffering from a fatal foetal abnormality. Both cases were decided in the absence of a judicial pronouncement on whether Article 40.3.3 applied, and thus the issue remains unresolved.

What is unique about the Halappanavar case is the fact that there was no question but that this life would not survive outside the womb.

By all accounts, she was having a miscarriage, and at 17 weeks, there was no prospect the foetus would be viable outside the womb. Is this truly a case similar to that of Mrs D and Miss D, where there was limited prospect of life outside the womb? Is the Medical Council right in equating life which has “little” prospect of survival with life that has “no” prospect of survival? The question as to viability, the meaning of life and the circumstances in which a fatal foetal abnormality can justify termination are all questions which need to be urgently addressed by the legislature.

From a constitutional perspective, this raises more profound questions. According to Article 40.3.3, unborn life is to be vindicated and protected “with due regard to the equal right to life of the mother”. Where foetal life cannot be born alive, and will not survive outside the womb, can it really be said that in these circumstances, the right to life of the unborn is “equal” to the right to life of the woman?

Women in Ireland have a constitutional right to terminate their pregnancies where their life is at risk.

Mr Justice McCarthy stated in 1992 the failure to legislate on the abortion issue was inexcusable. There are no longer any excuses: Legislation must be introduced as a matter of urgency.

* Jennifer Schweppe is a lecturer in constitutional law at University of Limerick and editor of The Unborn Child, Article 40.3.3 and Abortion in Ireland: 25 Years of Protection? Home