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Submission
to the
Joint Committee on Health and Children
Public Hearings on the Implementation of the
Government Decision following the publication of the
Expert Group Report into matters relating to
A, B and C v Ireland
from
Jennifer Schweppe
Lecturer in Law
University of Limerick
2
Table of Contents
Biography ..................................................................................................................................................................3
Opening Presentation ..........................................................................................................................................4
Executive Summary ..............................................................................................................................................6
Written Submission ..............................................................................................................................................8
Introduction ........................................................................................................................................................8
Recommended Issues to be Considered by the Joint Committee ..............................................8
Issue 1: What is a ‘constitutionally permissible abortion’? ..........................................................9
Issue 2: Issues of Conscience .................................................................................................................... 13
Issue 3: What is ‘Life’ for the purposes of Article 40.3.3°? ......................................................... 15
Medical Council Guidelines .................................................................................................................. 16
No prospect of life outside the womb ............................................................................................. 16
Little prospect of life outside the womb ........................................................................................ 18
Issue 4: Time Limits ...................................................................................................................................... 19
Issue 5: Consent and Young Women and Minors ........................................................................... 20
Consent to Medical Treatment by Young Persons and Minors ........................................... 20
Young women and minors in the care of the HSE ..................................................................... 25
Issue 6: Language ........................................................................................................................................... 27
Issue 7: Miscellaneous Recommendations ........................................................................................ 27
Conclusion ......................................................................................................................................................... 28
3
Biography
Jennifer Schweppe is a Lecturer in Law at the University of Limerick, and has published extensively on the issue of abortion law in Ireland. Having graduated with a BCL from University College Dublin, she was awarded an Open Post Graduate Scholarship while completing her LLM by research. As part of this LLM, she examined the scope of Article 40.3.3° with particular emphasis on in utero drug exposure and third party foetal assault. Prior to taking up her current position, she worked as an intern with the Federal Defender Programme in Chicago, a legal researcher in the Office of the Attorney General and as a legal researcher for the Law Reform Commission. Her research interests lie in the areas of abortion law, hate crimes, miscarriages of justice and legal education, and she has published widely in these areas. She completed a Graduate Diploma in Academic Practice at the University of Limerick, and is currently undertaking a PhD at Trinity College Dublin under the supervision of Professor Ivana Bacik entitled, ‘Contextualising Hate Crimes: Punishing Emotions and Uncovering Motivation in the Criminal Law’. She was the President of the Irish Association of Law Teachers for 2009-2010 and won the Small Group Teaching Award at the University of Limerick in 2010. She was awarded a National Award for Excellence in Teaching by the National Academy for the Integration of Research, Teaching and Learning (NAIRTL) in 2011 and was a finalist for the European Award for Excellence in Teaching in the Humanities and Social Sciences in 2012. Jennifer teaches Constitutional Law and Criminal Procedure to undergraduate students and Criminal Justice Processes and Sentencing to postgraduate students. Relevant Publications include: Book The Unborn Child, Article 40.3.3° and Abortion in Ireland: 25 Years of Protection? (The Liffey Press 2008) (Editor)
Journal Articles and Book Chapters ‘Taking Responsibility for the “Abortion Issue”: Thoughts on Legislative Reform in the Aftermath of A, B and C’ (2011) 14(2) Irish Journal of Family Law 50
‘“A Constitutionally Permissible Abortion?” The Right to Travel, the Role of the Medical Profession and the Duty of the HSE’ in Jennifer Schwepe (ed), The Unborn Child, Article 40.3.3° and Abortion in Ireland: 25 Years of Protection? (The Liffey Press 2008)
‘Revisiting Article 40.3.3°: Part Two: Pregnant Women and Unborn Children: An Irreconcilable Conflict?’ (2006) 1 Irish Journal of Family Law 19
‘Revisiting Article 40.3.3°: Part One: Third Party Foetal Assault’ (2005) 4 Irish Journal of Family Law 19
‘Mothers, Fathers, Children and the Unborn: The Twenty-Fifth Amendment to the Constitution Bill’ [2001] Irish Student Law Review 136
4
Opening Presentation
1. I would like to thank the Chairman and the Committee for the invitation to
present my opinion on the form of the forthcoming legislation.
2. I would submit that there are six substantive issues which should be addressed
by legislation on this issue. In my written submission, I have also included some
ancillary issues which should be addressed, some which relate to existing issues, such as
travel and information, and some which concern issues which have not yet come before
the Courts.
3. I am basing my submission, as I have based all my academic writing, on the
assumption that we are legislating for Article 40.3.3° as it currently stands. In this
submission, I am not making any comment on the adequacy or suitability of the
constitutional provision as this question is, as I see it, outside the competency of the
Joint Committee. Further, I base my submission on the law as it is established and the
Constitution as interpreted by the courts. Thus, I will not question the findings of the
Supreme Court in the X case1 nor in any other case. However, I will highlight lacunae in
the law, or inconsistencies in judicial pronouncements where appropriate. Similarly, I
will not spend time deliberating on what issues should be contained in primary or
secondary legislation. That said, it is critical that the principles and policies of the issues
be set out clearly in the parent Act so as to ensure the legislation is constitutionally
robust.
4. I will make a brief comment on each of the issues I have identified, and am happy
to answer any questions on the contents of my statement and submission.
5. The first issue I have raised is that which is key to the decision in A, B and C v
Ireland,2 that is, how it is to be established if a ‘real and substantial risk’ to the life of a
pregnant woman exists. I argue that this decision should be left to medical practitioners.
Where the pregnant woman disagrees with the outcome, she should have an automatic
right of referral to an independent practitioner.
1 Attorney General v X [1992] IESC 1; [1992] 1 IR 1. 2 A, B and C v Ireland App No 25579/05 (ECHR, 16 December 2010).
5
6. The second issue relates to matters of conscience, and where a doctor
conscientiously objects to treating a woman. This position should be respected in line
with the Medical Council Guidelines. Further, the right of a woman to refuse a life-saving
termination should also be respected.
7. The third issue relates to foetal viability. Where medical professionals agree that,
as a matter of probability, there is no prospect of life outside the womb, termination of
pregnancy should be permissible.
8. The capacity of a young person – that is, someone under the age of 18 – and of a
minor – that is, someone under the age of 16 – to consent to medical treatment in the
absence of parental knowledge or consent needs to be addressed in legislation. The
position of those in the care of the Health Services Executive, no matter what their age
also requires clarification. The Law Reform Commission has recently published a Report
on this issue which I suggest should be followed.
9. I would also strongly urge the Joint Committee to use value-neutral and
constitutionally appropriate language at all stages of the proceedings. The term ‘mother’
is a loaded one, as is the term ‘baby’. I would argue that the terms ‘pregnant woman’ or
‘woman’, and ‘unborn’ be used.
10. Finally, I would suggest that the Committee take this opportunity to consider
more broadly the impact and scope of Article 40.3.3° and legislate for some ancillary
issues I have set out. Of immediate importance is the need to implement the
recommendations of the Committee on Assisted Human Reproduction, though there are
other issues which I have highlighted.
11. Thank you for your time, and once again thank you for this opportunity. I am
happy to answer any questions you might have.
6
Executive Summary
Recommendations (1) and (2)
In order to assess whether a termination of pregnancy is permissible, legislation should
require two medical practitioners to have an honestly held and reasonable belief that
termination of pregnancy is required due an underlying medical condition which, as a
matter of probability, is causing a real and substantial risk to her life. Where the
underlying medical condition is suicidal ideation, at least one of the medical
practitioners should have a speciality in mental health.
Legislation should also provide for a process of referral to an independent medical
professional or independent medical professionals nominated by the woman or her
treating physician where she disagrees with the initial conclusion.
Recommendation (3)
Generally speaking, doctors should not let their personal moral beliefs impact on their
decision to treat. However, legislation should provide that where a doctor for reasons of
conscience, does not wish to treat or advise a woman, they must explain this to the
woman and refer her to another practitioner. Where a woman’s life is in immediate
danger, the doctor must act in a manner which saves her life.
Recommendation (4)
Where medical professionals agree that, as a matter of probability, there is no prospect
of the life of the unborn surviving independently outside of the womb, termination is
permissible, and legislation should provide for this.
Recommendation (5)
Where the life of the woman is at risk due to the pregnancy, no time-limits should be
placed on the availability of the termination. As a matter of practice, once the pregnancy
progresses beyond the stage of viability, every effort should be made to safely deliver
the child, unless to do so would place the woman’s life at risk.
Recommendation (6)
The circumstances in which a young person or minor can consent to or refuse medical
treatment should be clearly set out in legislation in a manner which implements the
7
proposals of the Law Reform Commission in its Report Children and the Law: Medical
Treatment.
Recommendation (7)
Where a young person seeks to travel to terminate a pregnancy, where that termination
would not be constitutional, legislation should clearly provide that there is no
constitutional impediment to travel to terminate a pregnancy where the young woman
or minor is in the care of the HSE. The recommendations of the Law Reform
Commission in its Report Children and the Law: Medical Treatment regarding consent to
medical treatment generally should apply in relation to the termination, and the Child
Care Act 1991 should be amended accordingly.
Recommendation (8)
Value neutral and constitutionally appropriate language should be used in legislation.
Recommendation (9)
The Committee should consider legislating for ancillary issues which, while not directly
related to either the X case nor the decision in A, B and C v Ireland, are relevant to the
issue of protecting the unborn and the pregnant woman.
8
Written Submission
Introduction
1. I would like to thank the Chairperson and the Joint Committee for the
opportunity to make a presentation on the implementation of the Government decision
following the publication of the Report of the Expert Group regarding the decision of the
European Court of Human Rights in A, B and C v Ireland.3
2. I have written extensively on the issue of abortion law and the scope of Article
40.3.3° since 2001 in both academic and media contexts. In 2008, I published an edited
collection of articles on the topic entitled, The Unborn Child, Article 40.3.3° and
Abortion in Ireland: Twenty-Five Years of Protection (The Liffey Press 2008). Along
with Dr Catherine O’Sullivan (UCC) and Dr Eimear Spain (UL), I am editing a Special
Edition of the Irish Journal of Legal Studies on the implementation of the decision in A, B
and C v Ireland4 to be published in Spring 2013 with contributions from a number of
legal experts in the field of abortion law and practice. This Special Edition will be based
upon a ‘blog carnival’ on the website Human Rights in Ireland (www.humanrights.ie)
which will appear on 15 January 2013.
3. This written submission is based on some of my earlier publications, along with
some other observations on the issues in question. I am happy to answer any questions
on the contents of this submission, or clarify any issues raised therein, at any time.
Recommended Issues to be Considered by the Joint Committee
4. There are six key areas that I would ask the Committee to consider assessing in
the context of forthcoming legislation. All of these need to be carefully considered in
order for the legislation to be robust and capable of withstanding constitutional
challenge. It goes without saying that if a constitutional challenge to the legislation were
to succeed, this would have a devastating impact on those individuals who had acted in
reliance on it, such as doctors, midwives and the women themselves.
3 Ibid. 4 Ibid.
9
5. For each issue, I have first set out the current legal position and the position of
the Medical Council where appropriate. Some options for reform are then discussed,
with my own personal recommendations set out.
Issue 1: What is a ‘constitutionally permissible abortion’?
Current Legal Position
6. The first question is that which is at the heart of the European Court of Human
Rights (ECtHR) case in A, B and C v Ireland.5 It is accepted that the Constitution
envisages circumstances in which termination of a viable pregnancy is permitted. The
Supreme Court in Attorney General v X6 clarified the test that is to be utilised when
determining whether a termination of pregnancy is lawful. There, the Court stated that
it is constitutionally permissible for a pregnancy to be terminated where it can be
established as a ‘matter of probability’ that there is a ‘real and substantial risk’ to the
life, as opposed to the health of the woman.7 Further, where that risk emanates from the
woman herself, that is, where there is a ‘real and substantial risk to the life of the
mother by self-destruction which can only be avoided by termination of her pregnancy’,
termination of pregnancy is also constitutionally permitted.8 In relation to the risk,
there is no requirement of certainty that such a risk exists: rather, it must be established
as a ‘matter of probability’: a lower standard, and one which can and should be
replicated in legislation. Legislation is required to determine the manner in which the
threat to life or ‘risk’ is to be assessed, and how it is to be determined if termination is
constitutionally permissible in the individual circumstances.
7. Further, in order to comply with the current constitutional position as set out in
the X case,9 the test must include self-destruction as a ground for terminating
pregnancy. Importantly, the suicidal tendencies here must be linked to the pregnancy:
thus, termination is a medical treatment for an underlying medical condition, that is,
suicidal ideation. Without this link between the pregnancy and the psychiatric
condition, termination will not be lawful according to the decision in the X case.10
5 Ibid. 6 [1992] 1 IR 1. 7 Ibid 53-54. 8 Ibid 55. 9 Attorney General v X [1992] IESC 1; [1992] 1 IR 1. 10 Ibid.
10
Perspective from the Medical Profession
8. There are certain procedures which are routinely carried out on pregnant
woman which have the effect of terminating their pregnancies which are not, according
to the medical profession, considered ‘abortions’. The Chairman of the Institute of
Obstetricians and Gynaecologists in his oral comments to the All-Party Oireachtas
Committee on the Constitution11 stated that four conditions will justify what he referred
to as ‘therapeutic intervention’ which would have the result of terminating the
pregnancy of the woman: pre-eclampsia; cancer of the cervix; ectopic pregnancy; and
where there is little or no prospect of life outside the womb which could result in the
death of both the woman and the unborn.12 Terminating pregnancies in these situations,
is not, he stated, considered ‘abortion’ by the medical profession, but rather treatment
for the underlying condition.13 This is known as the doctrine of double-effect and is a
doctrine well-known to medical professionals.
9. The Medical Council Guide to Professional Conduct and Ethics for Registered
Medical Practitioners14 sets out the current legal position on abortion and offers little in
the way of advice on how to establish if a ‘real and substantial risk’ exists, other than to
refer practitioners to clinical research:
Abortion is illegal in Ireland except where there is a real and substantial risk to
the life (as distinct from the health) of the mother. Under current legal precedent,
this exception includes where there is a clear and substantial risk to the life of
the mother arising from a threat of suicide. You should undertake a full
assessment of any such risk in light of the clinical research on this issue.15
11 All Party Oireachtas Committee on the Constitution Fifth Progress Report: Abortion (Stationery Office 2000). 12 Ibid 45. 13 Ibid. 14 Irish Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners (2009). 15 Ibid 21.
11
Legislative Options
10. The first legislative option is to list medical conditions and circumstances in
secondary legislation which would have the effect of justifying a termination where
those conditions exist during pregnancy. However, I would argue that this approach
would be almost doomed to fail, as it would be very difficult to set out an exhaustive list
of medical conditions, particularly as no two women will present to their doctor in
exactly the same circumstances and with exactly the same condition.
11. A second approach is to allow each Hospital Ethics Committee to determine
whether a termination is permissible, as it appears has happened in Ireland already.16
Again, I would argue that this approach is not advisable. The decision to be made here is
a medical, not an ethical one, and should be made by medical professionals rather than
ethicists, chaplains and lay people who, along with members of the medical profession
from areas other than obstetrics and gynaecology, generally make up such Committees.
12. The third, and my recommended approach is to leave the decision as to whether
there is a ‘real and substantial risk’ to the life of the woman to medical professionals,
who are more than capable of determining such issues. As with other forms of
contentious treatment,17 before a termination is carried out, two medical professionals
at consultant level should agree that termination is required, given the medical
condition of the woman. Where the risk to life is one of self-destruction, it may be useful
to require that one of the examining consultants be either a psychiatrist or psychologist,
as was set out in the Medical Treatment (Termination of Pregnancy In Case of Risk to Life
of Pregnant Woman) Bill 2012.
13. Regarding the test to be applied to determine if such treatment is necessary, the
Twenty-Fifth Amendment to the Constitution (Protection of Human Life in Pregnancy)
Bill 2002 used the standard of reasonableness, providing:
16 As occurred in the case concerning a terminally ill woman in Cork University Hospital. See, ‘Woman with cancer tells of her abortion ordeal’ The Irish Times (Dublin, 21 December 2010). 17 See, for example, section 59 of the Mental Health Act 2001 in the context of the administration of electro-convulsive therapy to patients unwilling or unable to consent to such treatment. Section 58 of the Act deals with the even more contentious issue of psycho-surgery. Here, prior to such treatment being carried out, the Commission must refer the issue to a Tribunal to determine if the treatment is to be approved.
12
abortion does not include the carrying out of a medical procedure by a medical
practitioner at an approved place in the course of which or as a result of which
unborn human life is ended where that procedure is, in the reasonable opinion of
the practitioner, necessary to prevent a real and substantial risk of loss of the
woman’s life other than by self-destruction.
A similar requirement was set out in the Medical Treatment (Termination of Pregnancy
In Case of Risk to Life of Pregnant Woman) Bill 2012 which could usefully be adapted,
where the standard is one which requires a belief that the pregnancy causes a real and
substantial risk to the woman to be ‘honestly held and reasonable’. Again, there is no
requirement that the medical professional be certain that there is a real and substantial
risk to the life of the mother, but rather they must believe that to be the case as a matter
of probability.
Seeking a Second Opinion
14. It may be that the medical practitioners differ in opinion on whether termination
is required, or agree that termination is not required contrary to the wishes of the
pregnant woman. If this occurs, and the pregnant woman wishes to appeal that
conclusion, legislation should provide that she be entitled to seek a second opinion on
the issue. There are two avenues which could be utilised here: first, for the woman to be
referred on her own nomination or on the nomination of her treating physician to a
different consultant or consultants; or second, to a tribunal convened by the Medical
Council. For purposes of expediency and expertise, it is suggested that the former
approach be utilised. Again, where the risk to life is one of self-destruction, it may be
useful to require that one of the examining consultants be either a psychiatrist or
psychologist.
Recommendations (1) and (2)
15. In order to assess whether a termination of pregnancy is permissible, legislation
should require two medical practitioners to have an honestly held and reasonable belief
that termination of pregnancy is required due an underlying medical condition which,
as a matter of probability, is causing a real and substantial risk to her life. Where the
13
underlying medical condition is suicidal ideation, at least one of the medical
practitioners should have a speciality in mental health.
16. Legislation should provide for a process of referral to an independent medical
professional or independent medical professionals nominated by the woman or her
treating physician where she disagrees with the initial conclusion.
Issue 2: Issues of Conscience
17. It may be the case that, for personal moral or ethical reasons, a medical
practitioner will not wish to give advice on termination of pregnancy, facilitate
termination, or carry out such a termination. There is no clear legal position on these
issues, but the Medical Council Guidelines18 are clear. The Guidelines state that doctors
cannot allow their ‘personal moral standards’ to influence their treatment of patients.19
18. However, if the doctor does have a ‘conscientious objection’ to a particular
course of treatment, the Guidelines state that the doctor must explain this to the patient,
‘and make the names of other doctors available to them.’20 Thus, if a doctor has such a
strong personal position, they should be required to automatically refer the woman to a
physician who is capable and willing to offer impartial medical advice on the issue.
19. The one exception to this position is where the life of the woman is in immediate
danger, in which case they are under an obligation to act to save the life of the woman.
This position is in line with the Medical Council Guidelines,21 and was followed in
section 5 of the Medical Treatment (Termination of Pregnancy In Case of Risk to Life of
Pregnant Woman) Bill 2012. A similar provision should be included in the forthcoming
legislation.
20. It may also be the case that a woman who is offered a life-saving termination of
pregnancy refuses a life-saving termination of pregnancy on the basis of her own
18 Irish Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners (2009). 19 Ibid 16. 20 Ibid. 21 Ibid.
14
personal moral, ethical or religious beliefs. Generally speaking, where an adult of sound
mind refuses treatment, this decision must be respected by the treating practitioner.22
The only exception to this was set out in Fitzpatrick v FK (No 2).23 Here, a functional
capacity test was utilised by Laffoy J. She stated that there is a presumption that an
adult has the capacity to refuse medical treatment, but that that presumption can be
rebutted. She went on to discuss the factors to be taken into account when considering
if the presumption has been rebutted.24 It might be useful to place these on a statutory
footing, though where the issue is one of conscience rather than ability the decision of
the woman should be determinative.
22 The question as to whether those under the age of 18 can similarly refuse life-saving treatment is discussed below, at 46. 23 [2006] IEHC 392, [2007] 2 IR 406. 24 She stated: (1) There is a presumption that an adult patient has the capacity, that is to say, the cognitive ability, to make a decision to refuse medical treatment, but that presumption can be rebutted. (2) In determining whether a patient is deprived of capacity to make a decision to refuse medical treatment whether –
(a) by reason of permanent cognitive impairment, or (b) temporary factors ... the test is whether the patient’s cognitive ability has been impaired to the extent that he or she does not sufficiently understand the nature, purpose and effect of the proffered treatment and the consequences of accepting or rejecting it in the context of the choices available (including any alternative treatment) at the time the decision is made.
(3) ... The patient’s cognitive ability will have been impaired to the extent that he or she is incapable of making the decision to refuse the proffered treatment if the patient–
(a) has not comprehended and retained the treatment information and, in particular, has not assimilated the information as to the consequences likely to ensue from not accepting the treatment, (b) has not believed the treatment information and, in particular, if it is the case that not accepting the treatment is likely to result in the patient’s death, has not believed that outcome is likely, and (c) has not weighed the treatment information, in particular, the alternative choices and the likely outcomes, in the balance in arriving at the decision.
(4) The treatment information by reference to which the patient’s capacity is to be assessed is the information which the clinician is under a duty to impart – information as to what is the appropriate treatment, that is to say, what treatment is medically indicated, at the time of the decision and the risks and consequences likely to flow from the choices available to the patient in making the decision. (5) In assessing capacity it is necessary to distinguish between misunderstanding or misperception of the treatment information in the decision-making process (which may sometimes be referred to colloquially as irrationality), on the one hand, and an irrational decision or a decision made for irrational reasons, on the other hand. The former may be evidence of lack of capacity. The latter is irrelevant to the assessment. (6) In assessing capacity, whether at the bedside in a high dependency unit or in court, the assessment must have regard to the gravity of the decision, in terms of the consequences which are likely to ensue from the acceptance or rejection of the proffered treatment. In the private law context this means that, in applying the civil law standard of proof, the weight to be attached to the evidence should have regard to the gravity of the decision, whether that is characterised as the necessity for “clear and convincing proof” or an enjoinder that the court “should not draw its conclusions lightly”.
15
Recommendation (3)
21. Generally speaking, doctors should not let their personal moral beliefs impact on
their decision to treat. However, legislation should provide that where a doctor for
reasons of conscience, does not wish to treat or advise a woman, they must explain this
to the woman and refer her to another practitioner. Where a woman’s life is in
immediate danger, the doctor must act in a manner which saves her life.
Issue 3: What is ‘Life’ for the purposes of Article 40.3.3°?
22. The second issue asks whether the Constitution permits the termination of
pregnancy in circumstances where the foetus is unviable or suffers from what is called a
‘fatal foetal abnormality’. Two separate circumstances are envisaged here: first, where
foetal life is not compatible with human life; and second, where, once born, the baby will
survive only a few hours or days due to what is commonly called a ‘fatal foetal
abnormality’.
23. This is a separate legal issue to that which was addressed in the X case25 and by
the ECtHR in A, B and C v Ireland,26 which focused on balancing the life of the unborn
with the life of the mother where there was a real and substantial threat to the life of the
mother. In these circumstances no such threat arises. However, the broad principles set
down by the ECtHR in that case are equally relevant in these circumstances.
24. The ECtHR held that the failure of the authorities to provide any implementing
legislation or regulatory regime which would have allowed C to establish if she was
entitled to a lawful abortion under Art 40.3.3 amounted to a violation of Article 8 of the
ECHR.27 While it has yet to be conclusively established whether a termination is
permissible where a foetus will not survive outside the womb or will survive for a very
short period, it is certainly arguable that this is the case and if the Constitution is
interpreted as permitting a termination in these circumstances then legislation should
be introduced to provide clarity around the issue. I would now like to introduce you to
current position adopted by the Medical Council and some of the legal authorities on
this area, including arguments made by the Irish Government itself before the ECtHR
25 Attorney General v X [1992] IESC 1; [1992] 1 IR 1. 26 A, B and C v Ireland App No 25579/05 (ECHR, 16 December 2010). 27 Ibid [267]
16
that Art 40.3.3 could be interpreted so as to permit a termination where the unborn had
no prospect of life outside the womb.28
Medical Council Guidelines
25. The Medical Council’s Guide to Professional Conduct and Ethics for Registered
Medical Practitioners29 currently states that termination of a pregnancy can be
necessary ‘to protect the life of the mother’ when ‘due to extreme immaturity of the
baby, there may be little or no hope of the baby surviving.’30 Thus, the Guidelines
currently equate the two circumstances I envisage, while requiring that the life of the
woman be in need of ‘protection’ before termination will be permissible.
26. I would argue that where the issue is one of foetal viability, the question as to
whether there is a risk to the life of the mother, or whether her life needs ‘protecting’ is
irrelevant. The question to be considered here is whether the foetus is to be considered
an ‘unborn’ worthy of protection for the purposes of Article 40.3.3°. Further, it is
suggested that those set of circumstances where the unborn has no prospect of life
outside the womb should be considered separately from those where it has ‘little’
prospect of life outside the womb.
No prospect of life outside the womb
27. The question as to when life begins has been examined by the Supreme Court in
Roche v Roche.31 Here, the Court found that ‘life’ for the purposes of the Constitution
means life within the womb. In this context, Denham J stated, ‘The concept of unborn
envisages a state of being born, the potential to be born, the capacity to be born...’ While
this statement concerns the beginning of life, it is relevant here: life, for the purposes of
the Constitution, constitutes viable life: that is, life which has the capacity to exist
independently of the woman if brought to term.
28 D v Ireland App No 26499/02 (ECHR 28 June 2006)., discussed in more detail below at para [30] –[32]. 29 Irish Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners (2009) 30 Importantly, in these circumstances, there is no requirement that of a ‘real and substantial risk’ to the life of the woman, as in the case in the context of a medically or psychiatrically imposed threat to the life of the woman; rather, termination is permissible where the life of the woman is in need of ‘protection’. This seems a lower standard, though the difference between protection and risk is not clarified anywhere in the Guidelines. 31 [2009] IESC 82, [2010] 2 IR 321.
17
28. 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 in Ireland. When the baby
is born and has an independent existence from its mother, it then acquires all the rights
afforded to human persons.32 Between implantation and birth, however, the definition
of what life means is entirely unclear.
29. 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, I would argue that this is not ‘unborn’ life
within the meaning of Article 40.3.3°. To interpret it as such would require unviable
foetal life to be ‘equal’ to the right to life of the woman.
30. The ECtHR decision in D v Ireland33 is relevant here. In this case, D was pregnant
with twins, one of which had stopped developing at eight weeks gestation, 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. She terminated her
pregnancy and brought an application to the ECtHR seeking a declaration that Irish law
was incompatible with the Convention due to the restrictive nature of Irish abortion law.
31. The Irish Government argued in the case that it was ‘an open question’ as to
whether Article 40.3.3° could have allowed a lawful abortion in Ireland given the
circumstances of the woman.34 Noting that the decision in the X case35 showed that the
courts have expanded and interpreted the meaning of the constitutional provision, the
Government argued, ‘there might be an issue as to the extent to which the State was
required to guarantee the right to life of a foetus which suffered from a legal genetic
abnormality.’36 Referring to arguments of counsel, the Court stated that it was argued that
the Courts were unlikely to interpret the provision with ‘remorseless logic’ in exceptional
cases, and if it had been established that there was no realistic prospect of the foetus
being born alive:
32 For an examination of the ‘born alive’ rule, see Jennifer Schweppe, ‘Revisiting Article 40.3.3°: Part One: Third Party Foetal Assault’ (2005) 4 Irish Journal of Family Law 19. 33 D v Ireland App No 26499/02 (ECHR 28 June 2006). 34 Ibid [69]. 35 Attorney General v X [1992] IESC 1; [1992] 1 IR 1. 36 D v Ireland App No 26499/02 (ECHR 28 June 2006) [69].
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there was ‘at least a tenable’ argument which would be seriously considered by
the domestic courts to the effect that the 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. (emphasis added)37
32. This argument was accepted by the Court in deciding that the case was
inadmissible due to the fact that the applicant had not exhausted all domestic remedies.
It particularly stated:
There is … a feasible argument to be made that the constitutionally enshrined
balance between the right to life of the mother and of the foetus could have
shifted in favour of the mother when the ‘unborn’ suffered from an abnormality
incompatible with life.38
33. I would submit there where medical professionals agree that there is no prospect
of the life of the unborn surviving independently outside of the womb, termination is
permissible, and legislation should provide for this.
Little prospect of life outside the womb
34. On this issue, both D v Ireland39 and D v Brennan and Ors40 (the ‘Miss D’ case) are
relevant. In the Miss D case, the young woman was in care, and her foetus was suffering
from a fatal foetal abnormality, in this case, anencephaly. With the approval of her
mother, she decided to travel to terminate her unviable pregnancy. Due to the fact that
she was in care, the HSE believed that this medical treatment needed the approval of a
District Court Judge. This approval was not forthcoming, and the appeal was heard by
McKechnie J. According to newspaper reports published at the time of the case,
37 Ibid. 38 Ibid [90]. 39 D v Ireland App No 26499/02 (ECHR 28 June 2006). 40 HC 9 May 2007.
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McKechnie J was of the opinion that it was unnecessary to decide whether the foetus
was an ‘unborn child’ within the meaning of the Constitution.41
35. The ECtHR decision in D v Ireland42 is also relevant in this set of circumstances.
The decision of the Court as discussed above is framed in language which considers only
those circumstances in which the unborn suffers from an ‘abnormality incompatible
with life’. I would suggest that once the unborn is capable of being brought to term,
delivered and capable of having a life independent from its mother, even if that life is for
only a few days or weeks, that this presents a different set of circumstances to that
where there is no possibility of life outside the womb.
36. The framers of the legislation must determine whether termination of pregnancy
is permitted in these circumstances. From a legal perspective, where there is prospect
of life outside the womb, however limited in time, this is life which has, as Denham J put
it, ‘the capacity to be born’ and thus has constitutional protection under Article 40.3.3°.
The only exception to this is where the X case43 test applies: that is, where the fatal
foetal abnormality, and thus the pregnancy, poses a threat to the life of the woman.
Recommendation (4)
37. Where medical professionals agree that, as a matter of probability, there is no
prospect of the life of the unborn surviving independently outside of the womb,
termination is permissible, and legislation should provide for this.
Issue 4: Time Limits
38. The question of placing a time-limit on the availability of such terminations has
also been mooted.44 However, one could argue that where a termination is
constitutionally permissible, that is, where the life of the woman is at risk due to the
pregnancy, no time-limits can be placed on the availability of the termination, as to do
so would not protect the ‘equal right to life of the mother.’ That said, as a matter of
41 The case was ‘about the right to travel’, he believed, not about abortion or a decision to terminate the existence of a healthy foetus or a disabled child. ‘High Court rules that girl can travel for abortion’ The Irish Times (Dublin, 10 May 2007). 42 D v Ireland App No 26499/02 (ECHR 28 June 2006). 43 Attorney General v X [1992] IESC 1; [1992] 1 IR 1. 44 Constitution Review Group, Report of the Constitution Review Group (Stationery Office, 1996); Siobhán Drislane, ‘Abortion and the Medical Profession in Ireland’ (2009) 15(1) MLJI 35.
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practice, once the pregnancy progresses beyond the stage of viability, every effort
should be made to safely deliver the child, unless to do so would place the woman’s life
at risk.
Recommendation (5)
39. Where the life of the woman is at risk due to the pregnancy, no time-limits
should be placed on the availability of the termination. As a matter of practice, once the
pregnancy progresses beyond the stage of viability, every effort should be made to
safely deliver the child, unless to do so would place the woman’s life at risk.
Issue 5: Consent and Young Women and Minors
40. Where a young person (aged 16-17) or a minor (those under the age of 16) seeks
medical treatment which involves the termination of her pregnancy, a number of legal
issues arise involving the medical practitioner, the young woman or minor’s parents
and the young woman or minor herself. Where she is in the care of the Health Services
Executive, further issues arise.
Consent to Medical Treatment by Young Persons and Minors
Current Legal Position
41. Section 23 of the Non-Fatal Offences Against the Person Act 1997 governs the
law concerning the medical treatment of young people and provides:
(1) The consent of a minor who has attained the age of 16 years to any surgical,
medical or dental treatment which, in the absence of consent, would
constitute a trespass to his or her person, shall be as effective as it would be
if he or she were of full age; and where a minor has by virtue of this section
given an effective consent to any treatment it shall not be necessary to obtain
any consent for it from his or her parent or guardian.
(2) In this section, ‘surgical, medical or dental treatment’ includes any procedure
undertaken for the purposes of diagnosis, and this section applies to any
procedure (including, in particular, the administration of an anaesthetic)
which is ancillary to any treatment as it applies to that treatment.
(3) Nothing in this section shall be construed as making ineffective any consent
which would have been effective if this section had not been enacted.
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42. The question is whether section 23 confers an absolute right to consent on 16
and 17 year olds in the absence of parental consent or knowledge which would allow
young women to terminate their pregnancies in the absence of parental knowledge or
consent. It was arguable that the right to consent is limited in some way by Articles 41
and 42 of the Constitution, which confer rights on parents until, it is presumed, the age
of majority, though this position may have been altered by the insertion of Article 42A.45
A further question then arises in relation to young woman under the age of 16, and
whether it is lawful to treat or give abortion information to her in the absence of
parental consent or knowledge.
43. The Law Reform Commission in its Report Children and the Law: Medical
Treatment46 outlined the issues succinctly:
[W]hile the decisions in the McK case and the D case are at least consistent with
the view that 16 and 17 year olds often have the capacity to make significant
health care decisions, and that the concept of a ‘mature minor’ is also consistent
with this approach, there is no definitive legal framework that clarifies the
respective rights and responsibilities of those under 18, their parents and
guardians, still less the health care professionals who come into contact with
them.47
Medical Council Guidelines
44. The Medical Council’s Guide to Professional Conduct and Ethics for Registered
Medical Practitioners48 state:
45 See, for example, Eoin Quill, Torts in Ireland (3rd edn, Gill and Macmillan 2009) 210; Mary Donnelly, Consent: Bridging the Gap Between Doctor and Patient (Cork University Press 2002); D McMahon, C Darker, B O'Shea, M Taaffe, T O'Dowd, ‘The Prescribing of Contraception and Emergency Contraception to Girls Aged Less Than 16—What are the Views and Beliefs of GPs and of Parents?’ (2010) 16(2) Medico-Legal Journal of Ireland 91. 46 Law Reform Commission, Children and the Law: Medical Treatment (LRC 103—2011). 47 Ibid 51. 48 Irish Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners (2009).
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43.1 Children and young people should be involved as much as possible in
discussions about their healthcare. When you are talking to a child or young
person, it is important to give them information in an age-appropriate manner,
listen to their views and treat them with respect.
43.2 Patients aged 16 years and over are entitled by law to give their own
consent to surgical, medical or dental treatment. This entitlement does not apply
to other areas such as organ or tissue donation or participation in medical
research.
43.3 A refusal of treatment by a patient between 16 and 18 years, which is
against medical advice and parental wishes, is of uncertain legal validity. In this
event, you should consider seeking legal advice before acting on such a decision.
43.4 Where the patient is under the age of 16 years, it is usual that the parents
will be asked to give their consent to medical treatment on the patient’s behalf.
43.5 In exceptional circumstances, a patient under 16 might seek to make a
healthcare decision on their own without the knowledge or consent of their
parents. In such cases you should encourage the patient to involve their parents
in the decision, bearing in mind your paramount responsibility to act in the
patient’s best interests.
43.6 When treating children and young people, you should remember your
duties of confidentiality as provided in [The Freedom of Information Act 1997],
subject to parental rights of access to medical records which may arise by law.
You should tell these young patients that you cannot give an absolute guarantee
of confidentiality.
45. According to section 23 of the 1997 Act, where a young person is in the care of
her parents, a doctor cannot be held criminally liable for providing medical treatment to
her in the absence of parental knowledge or consent. For those under the age of 16, as
23
the Law Reform Commission notes, ‘the “usual” position is that parents should be asked
for their consent, but that in “exceptional circumstances” the doctor would “encourage”
the under 16 year old to involve their parents, bearing in mind the doctor’s “paramount
responsibility” to act in the patient’s best interests.’49
Refusal of Medical Treatment
46. The Law Reform Commission also considers whether a young person or minor
has the capacity to refuse medical treatment generally and more particularly, life-saving
medical treatment.50 It suggests that in general, a young person should have the ability
to refuse medical treatment in the same way that an adult can. However, where life-
saving treatment is refused, it recommends that an application should be made to the
High Court to adjudicate on the refusal. This issue is particularly relevant in the context
of the forthcoming legislation, and should be taken into consideration by the Joint
Committee.
Options for Legislative Reform
47. It is unclear whether it is legally and constitutionally permissible for a medical
practitioner to treat a pregnant young woman or minor in the absence of parental
knowledge or consent, and it is vital that the legislation is clear on this issue.
48. There are two options here. The first is to define ‘woman’ as ‘a female person’ in
the legislation, which would have the effect of permitting a doctor to treat any pregnant
teenager regardless of age in the absence of parental consent. However, this would
potentially be unconstitutional in light of Article 41 and 42. In Re Article 26 and the
Regulation of Information (Services Outside the State for the Termination of Pregnancies)
Bill 199551 it was argued that the Bill was unconstitutional because the term ‘woman’
was not defined in the Act, a young person could seek abortion information without the
knowledge or consent of her parents. Hamilton CJ stated in response to this argument
that where information is provided, it should be done so in accordance with the
‘principles of constitutional justice’. These principles were not defined or described, but
it is presumed that the Chief Justice had Articles 41 and 42 in mind. Whether the
49 Law Reform Commission, Children and the Law: Medical Treatment (LRC 103—2011) 54. 50 Law Reform Commission, Children and the Law: Medical Treatment (LRC 103—2011). 51 [1995] IR 1.
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Medical Council Guidelines and the interpretation of the Law Reform Commission of
section 23 amount to a protection of these principles is also unclear.
49. I would argue that the preferable option is to legislate in accordance with the
proposals of the Law Reform Commission in its 2011 Report,52 which set out clearly the
circumstances in which medical treatment can be given to, and refused by, young people
and minors. The Commission’s proposals place the best interest of the young person at
the heart of any consideration,53 and states that due weight be given to the views of the
child given its age and maturity.54 In relation to those aged 16 and 17, the Bill states
quite simply, ‘The capacity of a person who is 16 or 17 years of age is as effective as it
would be if he or she were of full age, that is, 18 years of age’ though this is a rebuttable
presumption.55
Section 8 of the proposed Bill provides that where a person under the age of 18 refuses
life-sustaining medical treatment, ‘an application may be made to the High Court to
determine the validity of the refusal.’ The High Court may order that such life-saving
treatment be administered, where it is in the best interests of the person involved.
In the context of minors (ie, those under the age of 16), the Commission proposes that
while there is no presumption of capacity, that where the minor proves sufficiently
mature and has the understanding to appreciate the nature and consequences of the
treatment in question, that minor may consent to or refuse medical treatment.56 In
these circumstances, it shall also be presumed that parents or guardians are involved in
the decision-making process, though in exceptional circumstances, treatment may be
administered in the absence of parental knowledge or consent.57
Recommendation (6)
50. The circumstances in which a young person or minor can consent to or refuse
medical treatment should be clearly set out in legislation in a manner which implements
52 Law Reform Commission, Children and the Law: Medical Treatment (LRC 103—2011). 53 Section 4 of the Commission’s Draft Health (Children and Consent to Health Care Treatment) Bill 2011. 54 Ibid section 5. 55 Ibid section 7. 56 Ibid section 10. 57 Ibid.
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the proposals of the Law Reform Commission in its Report Children and teh Law:
Medical Treatment.
Young women and minors in the care of the HSE
51. Depending on the type of care order made under the Child Care Act 1991, either
the District Court Judge (in the case of emergency care orders, interim care orders and
interim special care orders) or the HSE (in the case of care orders and special care
orders) can consent on behalf of the young person or minor, or give directions in
relation to their treatment. Generally speaking, these provisions will apply where the
medical treatment in question is a life-saving termination of pregnancy.
Current Legal Position
52. A and B v C (the C case),58 concerned a young woman in the care of the HSE
whose parents opposed the decision to terminate the pregnancy, Geoghegan J was of the
opinion that, rather than conferring a right of abortion outside of the jurisdiction, the
travel amendment “merely prevents injunctions against travelling for that purpose.”59
This case did not involve an injunction; rather, the case concerned the question of
whether the Health Board could facilitate this girl travelling under the terms of the Child
Care Act 1991. Geoghegan J was of the opinion that the court could not permit the
young woman to travel if the termination proposed was one which was not allowed
under Irish law.60
53. On the basis of this ruling, it was thought that while parents could lawfully bring
their children to another jurisdiction to terminate the pregnancy of that child, where the
child was not in the care of her parents, the situation was different. In these
circumstances, where consent of the court was required in order to medically treat a
child, or for them to travel, such as children in the care of the Health Board, wards of
court and certain children detained under the Mental Health Acts, unless the
58 A and B v Eastern Health Board and C [1998] 1 ILRM 464. 59 Ibid 478. 60 He stated, ‘… the fact that there may be different views as to the importance of the constitutional right to travel does not in my view affect the issue of whether the District Court under the Child Care Act 1991 can actually exercise a jurisdiction authoring travel for a particular purpose, namely, for an abortion in circumstances where the proposed abortion would not be allowed under Irish law. I think that the court would be prevented from doing so by the terms of the right to life of the unborn expressed in the Constitution.’ Ibid 479 (emphasis added)
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termination was a constitutionally permissible one, the court could not sanction the
treatment and the young person would be forced to bring her pregnancy to term.61
54. However, the situation was interpreted differently in the case of D v Brennan and
Ors62 (the ‘Miss D’ case) which concerned a 17 year old girl in the care of the HSE. The
HSE refused to give her permission to travel, and attempted to prevent her from
obtaining a passport. Miss D took an action seeking to prevent the HSE from restraining
her from travelling to the UK for the abortion. Considering the question of whether the
HSE were correct in seeking District Court approval for Miss D to travel to the UK to
termination her pregnancy, McKechnie J stated:
… there was no law or provision of the Child Care Act which restrained a child in
care from travelling for an abortion or which would support the HSE's claim that
District Court permission was required for travel. Miss D's right to travel for an
abortion was unaffected by Article 40.3.3° of the Constitution.63
Due to her ‘courage, integrity and maturity’, McKechnie J held that there was ‘no
impediment to the applicant exercising her right to travel to England’.64
55. Thus, McKechnie J held that Miss D’s right to travel took precedence over the
right to life of the unborn. There was a shift from Geoghegan J’s position, where he
believed that the State, and the courts, were under an obligation to protect the right to
life of the unborn to the point that the court could not positively sanction travel for an
unconstitutional abortion, to McKechnie J’s decision, where the right to travel was
paramount, trumping the right to life of the unborn. It could be argued that Miss D was
decided on the basis of capacity to consent to treatment, rather than Article 40.3.3°, but
this issue requires resolution.
61 Arguably, the same position could apply where the father of the unborn sought an injunction preventing his wife from travelling to terminate her pregnancy. 62 HC 9 May 2007. 63 ‘High Court rules that girl can travel for abortion’, The Irish Times, (Dublin, May 10 2007). 64 Law Reform Commission, Children and the Law: Medical Treatment (LRC 103—2011) 49.
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Recommendation (7)
56. Where a young person seeks to travel to terminate a pregnancy, where that
termination would not be constitutional, legislation should clearly provide that there is
no constitutional impediment to travel to terminate a pregnancy where the young
woman or minor is in the care of the HSE. The recommendations of the Law Reform
Commission regarding consent to medical treatment generally should apply in relation
to the termination, and the Child Care Act 1991 should be amended accordingly.
Issue 6: Language
57. The language used in primary and secondary legislation, and in any documents
produced by the HSE or related bodies on this issue should be value neutral and
unemotive. It is thus recommended that the term ‘pregnant woman’ or ‘woman’ should
be used in place of ‘mother’. Similarly, the term ‘baby’ should not be used: the
constitutional term ‘unborn’ should be used in its stead.
Recommendation (8)
58. Value neutral and constitutionally appropriate language should be used in
legislation.
Issue 7: Miscellaneous Recommendations
59. While not required by the ruling in A, B and C v Ireland,65 it is suggested that the
Joint Committee take the opportunity to consider legislating for ancillary issues which
impact on the interpretation and application of Article 40.3.3°.
60. First, legislation is urgently required in line with recommendations by the
Commission on Assisted Human Reproduction66 regarding embryonic life outside the
womb. The absence of legislation in this area was noted by Hardiman J in the decision
in Roche v Roche67 and is needed as a matter of urgency.
61. A number of issues arise in the context of travel and information. First, it is not
clear whether the married father has any rights in relation to his unborn where the
65 A, B and C v Ireland App No 25579/05 (ECHR, 16 December 2010). 66 Commission on Assisted Human Reproduction, Report of the Commission on Assisted Human Reproduction (Stationery Office 2005) 67 Roche v Roche [2009] IESC 82, [2010] 2 IR 321.
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woman seeks to travel to terminate her pregnancy, or seeks information in this
regard.68 Second, the Regulation of Information (Services outside the State for
Termination of Pregnancies) Act 1995 should be amended to allow for information to be
provided in relation to constitutionally permissible terminations, and provision should
be made for follow-on care and access to medical records for woman seeking to travel
to terminate their pregnancies. Finally, asylum seekers should be positively facilitated
in legislation where they wish to travel to terminate pregnancies.
62. Third, issues regarding the potential scope of the constitutional provision in the
context of in utero drug exposure and third party foetal assault also need careful
consideration.69 For example, women in other jurisdictions have been convicted of
homicide for ingesting drugs while pregnant: it must be clarified that this will never
occur in Ireland.70 It is currently not a crime to kill a child in the process of being
born,71 and the issue of third party foetal assault is not clear.72
Recommendation (9)
63. The Committee should consider legislating for ancillary issues which, while not
directly related to either the X case nor the decision in A, B and C v Ireland, are relevant
to the issue of protecting the unborn and the pregnant woman.
Conclusion
64. The Courts have repeatedly stated that the absence of legislation implementing
Article 40.3.3 is inexcusable, and the Government is to be commended for acting upon
this issue. In order to act appropriately at this stage, we must now implement the
decision of the Supreme Court in the X case and accept that, where there is a real and
substantial risk to the life of a woman, the constitutional right to life of that woman
68 See, James Kingston, Anthony Whelan and Ivana Bacik, Abortion and the Law (Round Hall Sweet and Maxwell 1997) 213-217. 69 See Gerard Casey, ‘Pregnant Woman and Unborn Child: Legal Adversaries?’ (2002) 8 Medico-Legal Journal of Ireland 75; Jennifer Schweppe, The Unborn Child, Article 40.3.3° and Abortion in Ireland: 25 Years of Protection (The Liffey Press 2008) Chapters 4-7. 70 See, for example, State v McKnight 576 SE 2d 168 (2003); Jennifer Schweppe, ‘’Revisiting Article 40.3.3°: Part Two: Pregnant Women and Unborn Children: An Irreconcilable Conflict?’ (2006) 1 Irish Journal of Family Law 19. 71 See, Peter Charlton, ‘Judicial Discretion in Abortion: The Irish Perspective’ (1992) 6 International Journal of Law and the Family 349. See the response in England and Wales to this issue in the Infant Life Preservation Act 1929. 72 Jennifer Schweppe, ‘Revisiting Art. 40.3.3. Part 1: Third Party Foetal Assault’ (2005) 4 Irish Journal of Family Law 19.
29
should prevail over that of the unborn, no matter if the risk is a physical or a
psychological one. Further, we must assess exactly what unborn life is for the purposes
of the Constitution.
