Protection needed ‘only if foetus can survive’

A constitutional amendment is not needed to allow for the abortion of a foetus that has no chance of survival outside the womb, legal experts have argued.

On the second day of hearings ahead of the drafting of abortion laws by the Government, the Oireachtas Committee on Health and Children, was told the legislation should declare that the constitutional right to life only applies to “life that has the capacity to be born”.

But the protection does apply to a foetus that will survive, even for a short few moments, after birth and therefore a referendum would be needed to allow abortion in these cases.

Barrister and medical doctor Simon Mills said there was something “disturbingly utilitarian” about the Constitution in that “it purports an obligation to be born only to suffer and die”.

He was responding to questions from Fianna Fáil’s health spokesperson, Billy Kelleher, who said the issue was “very sensitive” in the abortion debate.

Referring to a 2009 Supreme Court ruling on the constitutional status of spare embryos created through IVF, Jennifer Schweppe, law lecturer at the University of Limerick said: “When we talk about life in the Constitution, we are talking about life which has the capacity to be born.

“I don’t think we need a constitutional amendment where — as a matter of probability — doctors are of the opinion that the foetus has no capacity to be born. That’s the legal situation.

“Perhaps, as a matter of clarity, the legislation should in a declaratory manner, state that,” she said.

Ms Schweppe said the legal difficultly arises where the doctor believes the foetus has the capacity to be born, but will only survive for a short period of time.

“Tragically, in circumstances such as that, the Constitution does not permit a termination of pregnancy and unfortunately, women in that position do currently need to travel to terminate those pregnancies.”

She said while she does not agree with that position: “I think a constitutional amendment would be required in those cases.”

Ciara Staunton of the School of Law in NUI Galway agreed that “if there is no possibility that a woman will produce a live birth, there is a right to terminate.

“Unfortunately, even if that child has a chance of being alive for even second, unfortunately a pregnant woman cannot have an abortion.”

Labour senator, Ivana Bacik said the State could potentially face a law suit from a woman who was denied an abortion in the case of fatal foetal abnormality and was forced to travel abroad. “To avoid that litigation, we should be legislating now,” she said.

Alan Brady of the Irish Council of Civil Liberties, said it was likely that such a test case could occur and, rather than waiting for that to happen, the Government should be active in legislating.

He also said Ireland could find itself in breach of the UN Convention of Human Rights on the issue.

Dr Mills said it was “simply a fact of our proximity to the United Kingdom that more cases have not come before the courts.

“If they had come before the courts, one would wonder what the courts would have decided. And then we would be talking not just about X, but about E and F and G.”

Fine Gael senator Fidelma Healy Eames said doctors “can also get it wrong” in predicting a foetus could not survive outside the womb and allowing abortions in these cases could “bring undue influence on a pregnant woman”.

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