THE Supreme Court yesterday did what supreme courts do: it ruled in favour of one argument and rejected another. It made a decision on what a piece of legislation actually means.
Mrs Justice Susan Denham, one of the five presiding judges who were in unanimous agreement on yesterday’s issue, described the situation thus: “this was a court of law that had been requested to make a legal decision on the construction of an article in the Constitution.”
The issue at hand was an appeal by a woman seeking to have three frozen embryos released to her so she might try to have a baby even though her estranged husband had withdrawn his permission for their embryos to be so used. Rejecting the woman’s appeal the Supreme Court used the opportunity to “express concern at the total absence of any form of statutory regulation of in vitro fertilisation in Ireland”.
In what cannot be judged as anything other than an appeal to the Oireachtas to do its job and confront these issues Mr Justice Adrian Hardiman said there was a marked reluctance on the part of the legislature to legislate on issues around assisted human reproduction.
He warned that because of the reluctance of the Oireachtas to address such issues “Ireland may, by default, become an unregulated environment for practices that may become controversial”.
Though a Supreme Court judge did not describe the situation as an unregulated free-for-all that is what he meant.
Mr Justice Fennelly supported this declaring that it was “disturbing” that four years after the publication of the Report of the Commission on Assisted Reproduction, no legislative proposal had been formulated.
As this report gathers dust — along with how many more? — our courts are replacing our legislature. Our politicians are running for cover, an option not available to the Supreme Court. They must make a ruling and in far too many cases by so doing they are forced to do what our politicians are elected to do: to decided what is permissible and what is not.
The results may be questionable on so very many fronts but most of all it is questionable because none of us ever voted to elect someone a Supreme Court judge; it is neither fair to the court nor fair to the electorate.
This sorry situation, this pattern of evasion and cowardice, was seen again last week when the same court had to rule on another landmark case where a lesbian couple sought to deny the biological father of a boy they were raising access to the child.
The ladies lost the case but had appropriate legislation been in place the case might never have reached that sorry point and a lot of hurt and trauma would have been avoided.
The consequences of this legislative silence undermined our standing for a third time in recent weeks when a challenge by three women to Ireland’s abortion laws was heard by a panel of 17 judges in the Grand Chamber at the European Court of Human Rights in Strasbourg.
The three women — one a Lithuanian national resident in Ireland — contend that their human rights were violated because they had to travel from Ireland to Britain to have abortions.
What ever way the court eventually rules it has the capacity to be extremely divisive. Though it is not hard to understand why politicians long-finger these issues the point has long passed where we should have resolved these matters through legislation.
Making decisions goes with the territory for politicians and though at this time of economic crisis it might be a bit like discussing the sharpness or texture of the Cumberland Sauce served on the Titanic but if we don’t make the decisions someone else, possibly outside of Ireland, will do so. That eventuality will certainly cause more grief for our Government than making a decision, any decision, on the issues would.
This situation is really an indictment of the ineffectiveness of our political process and our hypocrisy. It points to one of our less endearing traits: our enthusiasm for pretence and evasion. It points to deep political hypocrisy too, a charge the Greens are particularly susceptible to at the moment.
Though a ten-minute search of their website suggests that they have never heard of abortion it might not be too far off the mark to suggest that a considerable proportion of the Green demographic supports abortion, the very same demographic that wants to ban stag hunting because they deem it cruel.
Yes indeed, humanity’s capacity for double think and blind, stultifying hypocrisy is beyond comprehension.
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