Joint Committee on the Eighth Amendment of the Constitution díospóireacht

Eighth Amendment of the Constitution: Constitutional Issues Arising from the Citizens Assembly Recommendations

Chairman

I welcome members and viewers who may be watching our proceedings on Oireachtas TV. This is our third public session of the Oireachtas Joint Committee on the Eighth Amendment of the Constitution. Under the terms of reference of the joint committee, it is obliged to report to the Dáil and the Seanad within three months of its first public meeting.

Before I introduce our witnesses today, at the request of the broadcasting and recording services, members and visitors in the Public Gallery are requested to ensure that for the duration of the meeting their mobile phones are turned off completely or switched to airplane mode.

I now extend, on behalf of the committee, a warm welcome to our witnesses from the Irish Human Rights and Equality Commission, IHREC, Ms Emily Logan, chief commissioner; Professor Siobhán Mullally, a member of the commission; and Ms Ruth Gallagher, head of policy at the commission, who is seated behind the witnesses. They are all very welcome to this afternoon's meeting.

Before we commence formal proceedings I must first begin with some formalities and advise our witnesses on the matter of privilege. I wish to advise the witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to this committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I now call on Ms Logan to make her presentation. She and Professor Mullally will share speaking time in their opening presentation.

Ms Emily Logan

Thank you very much, Chair. I also thank the members of the committee. On behalf of the Irish Human Rights and Equality Commission, I thank the committee for the opportunity to meet in this module of its deliberations. I would like to briefly outline the institutional structure and legislative basis of the commission for members of the committee and members of the public who may be less acquainted with our work. The commission is Ireland's independent national human rights and equality institution. It was established in primary legislation in the Irish Human Rights and Equality Commission Act 2014 following the merger of the precursor bodies of the Equality Authority and the Human Rights Commission and it has been in operation since November 2014.

Professor Siobhán Mullally and I are two of 15 members of the commission, appointed by the Head of State, the President, following an open competition and resolution by both Houses of the Oireachtas. We have no reporting relationship to Government and account directly to the Oireachtas for our statutory functions. We appear today to represent the views of the commission, which, for the record, are contained in our recent policy statement on a new legal and regulatory framework on abortion in Ireland, in light of its international human rights obligations. The statement was submitted to the committee on Monday. It will come as no surprise to the committee that we do not have consensus at the commission on this matter but, procedurally, section 16 of the Act facilitates majority decision-making. In practice, that means that when we meet in plenary we take a vote on matters that are contested, and this matter has been put to the commission on ten occasions since its inception in 2014. What we bring before the committee today represents the views of 13 out of 15 members of the commission. Two members of the commission do not support the document in its entirety. The commission's independence has been recognised internationally and we have been awarded A status accreditation at the United Nations, under the UN Paris Principles. Those principles set out the necessary guarantees required to ensure that a national human rights institution can carry out its functions in full independence, free from any form of political or other pressure. Through a range of legal powers determined by the Oireachtas, we are mandated to promote and protect human rights and equality in the State.

Of most relevance to today's discussion is section 10(2) of the 2014 Act, which is to "keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality". Under section 10 of the Act the commission is also mandated "to consult with such national, European Union or international bodies or agencies having a knowledge or expertise in the field of human rights or equality as it sees fit". Ireland has ratified six of the nine core UN human rights treaties and is bound by those obligations as a matter of international law. For each treaty, there is an expert independent monitoring committee that oversees compliance. Ireland's compliance with the treaties is examined on a periodic basis and under our legislative mandate, the commission formally participates as the national independent monitor of human rights in this process and monitors the State's compliance with the recommendations.

UN treaty monitoring committees have regularly raised concerns regarding the current legal position in Ireland in respect of abortion. Most notably, in 2016 and 2017 the UN Human Rights Committee found that Ireland had violated a number of rights of the International Covenant on Civil and Political Rights, following complaints taken by Amanda Mellet and Siobhán Whelan, both of whom experienced pregnancies with fatal foetal abnormalities. I use that term as it is well understood. I know it offends some but it is important that we all know what we are talking about. In Amanda Mellet's case the UN Human Rights Committee found a violation of Article 7, namely, the prohibition on cruel, inhuman and degrading treatment. The committee took the view that many of the negative experiences could have been avoided if Ms Mellet had not been prohibited from terminating her pregnancy in the familiar environment of her own country and under the care of the health professionals whom she knew and trusted.

The committee also found a violation of Article 17, namely, protecting the right to privacy, stating that "the interference in [Ms Mellet]'s decision as to how best to cope with her non-viable pregnancy was unreasonable and arbitrary". The committee also found a violation of Article 26, namely, equality before the law, taking into account the financial cost of travelling to the UK. The facts of the 2017 Siobhán Whelan case were similar to those in the Mellet communication and. relying on the same reasoning, the committee also found a violation of Articles 7, 17 and 26, namely, the prohibition against cruel, inhuman or degrading treatment, protecting the right to privacy and equality before the law.

The State’s response to the UN Human Rights Committee’s views in the Mellet case, which included an acknowledgment by the Minister for Health, Deputy Simon Harris, of its views, an ex gratia sum of €30,000 and a detailed itemisation of the steps being taken by the State on foot of the case, further demonstrate the significance of Ireland’s international legal obligations for domestic law and policy.

UN treaty monitoring bodies are the pre-eminent interpreter of Ireland’s binding obligations in international law under the human rights treaties it has ratified. Their views on Ireland are, therefore, authoritative and have a significant role in the interpretation, application and development of Irish law.

Professor Siobhán Mullally

It is the view of the Irish Human Rights and Equality Commission that the State should approach reforms on access to abortion in Ireland primarily as a matter of health care policy. To do so would be in keeping with its obligations under international human rights law.

As the committee is aware, the Protection of Life During Pregnancy Act 2013 allows for terminations of pregnancy where there is a real and substantial risk to the life of the mother. This limited access does not meet the requirements of international human rights law. Concerns about the barriers placed by the existing legal framework on women’s right to the highest attainable standard of health, the right to privacy, to equality before the law, to non-discrimination and to freedom from inhuman and degrading treatment, as well as the State’s special obligations towards minors, in particular the girl child, have been raised by several international human rights bodies.

The position taken by UN human rights treaty bodies differs from the position taken by the European Court of Human Rights. In the case of A, B and C v. Ireland, the court concluded that abortion law in Ireland struck a fair balance between the competing interests presented. The court relied in particular on the right to travel abroad for abortion as being significant in applying the fair balance test and in assessing the proportionality of the interference with a woman’s right to private life. A wide margin of appreciation was applied by the court. Ultimately, the court concluded that the constitutional prohibition on abortion in situations where a woman’s health or well-being was at risk pursued the legitimate aim of the protection of morals, and reflected the profound moral values of the Irish people. The court did not accept that sufficient evidence had been presented of a change in those values since the adoption of the eighth amendment. I would be happy to expand on this judgment and subsequent case law from the court in our discussion.

The UN Committee on Economic, Social and Cultural Rights has made clear the “realisation of women’s right to health requires the removal of all barriers interfering with access to health services ... including in the area of sexual and reproductive health”. It has identified the criminalisation of abortion and restrictive abortion laws as among these barriers. The committee has also specifically expressed its concern about the discriminatory impact on women who cannot afford to travel abroad to access abortion services or access the necessary information.

These concerns were reiterated in the views of the UN Human Rights Committee. In her concurring opinion in the Mellet case, Professor Cleveland stated “the committee’s finding of a violation of Article 26 in the author’s case ... is fully justified on grounds of discrimination arising from gender stereotyping”.

The Irish Human Rights and Equality Commission is of the view that the key areas that require attention by this committee include the development of a legislative and regulatory framework that provides for access to abortion for reasons of risk to life and health; socio-economic or family circumstances; pregnancy as a result of rape or incest; and fatal foetal abnormality.

The commission has in the past raised concerns about the number of examinations a girl or woman may be subjected to where she seeks treatment under the current legislation, as well as the effect this may have on a woman’s right to respect for her private and family life. The commission has also raised concerns about the barriers that assessment and certification requirements place before women with restricted access to medical practitioners or health information, such as women from poorer socio-economic backgrounds, from ethnic minority groups, or with intellectual disabilities.

A reformed framework for access to abortion services under a wider set of circumstances should avoid the creation of new processes where vulnerable women and girls may be subject to trauma, re-victimisation, delays in treatment or other harms. The commission is of the view that a new framework for access to abortion should place the decision-making process primarily in the hands of the pregnant woman in consultation with her physician. The commission stresses the importance of ensuring that constitutional reform avoids replicating the barriers to human rights and equality that are in place.

Given these considerations, the commission recommends the referendum announced should allow for the development of a framework governing access to abortion that has a basis in primary legislation and regulation.

As has been highlighted at the Citizens’ Assembly and in other fora, the criminalisation of abortion constitutes a potentially serious chilling factor for women seeking medical care, as well as for health care staff providing such care. The commission, therefore, is of the view that, notwithstanding limitations that may be placed on access to abortion by legislation and regulation, the State should decriminalise abortion in all circumstances, as required by the UN Committee on the Rights of the Child in its concluding observations on Ireland adopted in 2016.

The commission and others have highlighted serious shortcomings in Ireland’s sexual and reproductive health education system. In parallel to a reformed legislative and regulatory framework for access to abortion, it is crucial the State develop a comprehensive, scientifically objective sexual and reproductive health education policy.

I thank the committee for its attention and we welcome questions and further discussion.

Chairman

Thank you, Professor Mullally. I call on Senator Gavan.

I wish to add to that comment in terms of clarity around the threshold of "life". I wish to make it clear that we are suggesting that threshold be lowered to "health" rather than "life".

Chairman

Our next questioner is Deputy Rabbitte. The Deputy has ten minutes in total to use as she wishes.

Sex education is dealt with on page 30 of the policy statement. This issue is also covered by the ancillary recommendations of the Citizens' Assembly. What interactions does the commission have with the relevant Government bodies on the implementation of these recommendations?

Ms Emily Logan

While a lot of the focus in the public debate has been on abortion, for a long time in Ireland we have had a fairly poor history of educating girls about sexual health. The child safety and protection policy was only placed on a mandatory footing in 2011 despite the fact that it was introduced as a public policy in the 1990s. As such, we have been very slow to recognise the importance of educating girls. Ultimately, we are saying that we should look at prevention. While we are looking at the hard edge of abortion here, we must also wake up to the fact that we need to properly educate young people, not just girls, who may be sexually active, however uncomfortable that may be for some people. We must move into the 21st century on sexual health for young people.

Chairman

I thank Deputy Rabbitte and the witnesses and call Deputy Peter Fitzpatrick.

Deputy Peter Fitzpatrick

I thank the witnesses for their submissions. There is no doubt that this is an emotive topic which divides opinion in all areas of society. Indeed, opinion is divided in many households. Both sides of the debate have very different views and it is important to listen to all views before we make a decision. Not only that, we must respect each other's views and opinions. Personally, I am against abortion on demand. My fear is that if abortion on demand is introduced, it could become another form of contraception. We all know that it is not simply a case of either introducing abortion or not introducing it. My personal view is that we need to look at cases where a pregnancy is the result of incest or rape, where it could place the life of the mother at risk or where it could result in fatal foetal abnormalities. I have specific questions for the witnesses and I address them also to all members.

We all know friends and family who have family members with Down's syndrome. Statistics show that 90% of babies diagnosed with Down's syndrome have their lives terminated by abortion. Even more alarming is the fact that 100% of babies diagnosed with Down's syndrome in Iceland are aborted. I would be very interested to hear people's views on this and on whether they accept that we could have the same situation here should abortion on demand be introduced.

I listened very closely to each of the opening statements and was shocked that no one mentioned the rights of the unborn. I would be very interested to hear people's views on the rights of the unborn and whether they believe they have any. What measures can we take to ensure that the rights of the unborn, along with those of the mother, are protected? I said last week here that a baby's heart beats 21 days after conception. Facial features start to form at week 4, internal lungs begin to form at week 6, the nervous system is responsive at week 8, babies are swallowing, yawning and sucking at week 9 and the baby stretches and jumps at week 11.

Professor Mullally stated that the commission is of the view that a new framework on access to abortion in Ireland should place the decision-making process primarily in the hands of the pregnant woman in consultation with a doctor. What would happen if both parties had a different view? For example, what if the woman wanted to terminate the pregnancy but her doctor was against it?

Ms Emily Logan

I thank Deputy Fitzpatrick. I will start with his opening comments on deeply held views. What I tried to capture in my opening statement was that - no more than in this committee or in Irish society - I am very well aware that people have very strong and deeply held opinions on this. This does not mean that we do not listen to those opinions. In less than three years, the commission has had ten very serious submissions whereby it has commented on this issue. That has meant we have had to listen to everybody's views. It is contested but that does not mean we can set aside our respect for each other as human beings. As such, we do our level best to try to do it within the commission. I respect, of course, that the Deputy does not share our views. I respect him as an individual human being who holds his views very strongly.

The Deputy mentioned rape and incest. One of the things that was called for in the past was a review of the SAVI report of 2002, which looked at sexual violence in Ireland. The survey has never been repeated but while the data is old, it indicates that 22% of people experience familial abuse or violence in the home. That is something we should not ignore. I think Deputy Fitzpatrick had a specific question for Professor Mullally.

Professor Siobhán Mullally

Where the views of a pregnant woman differed from those of her physician, our position, which we have set out, is that the legislative and regulatory framework should provide for the circumstances in which there is a right to access to abortion. In that context, there would be an obligation to ensure that health care services were organised in such a way as to provide effective access to abortion in accordance with that legislative and regulatory framework. It should be possible to ensure that decisions are made in a timely way and that access is not theoretical but is practical and available to all without discrimination on grounds of socioeconomic circumstance or location. Going back to the question on socioeconomic circumstances, we have quoted from the UN Committee on Economic, Social and Cultural Rights on ensuring universal access to health care and the right to the highest attainable standard of health as part of that reform.

Deputy Peter Fitzpatrick

I have reservations. I am afraid that if we go the way we are going, abortion will be available on demand. I would not like people to use it as a contraceptive and I would not like to think that it would facilitate a person who discovered from a scan that the baby was a boy, but they wanted a girl, or vice versa. That is my biggest fear of all. I am conscious of it and I have set out my reservations. The last thing I want to happen in this country is for abortion to be available on demand. In America, over 55 million abortions have been carried out. As I said in my statement, there are 100,000 people alive in Ireland today because of the eighth amendment. I have come here and I am trying to be honest in expressing my opinion. While I accept the witnesses' opinions, I am very disappointed. We had a meeting here beforehand to discuss whether we will have a referendum now or in May or June. The bottom line is that nothing should be done until everything is finalised. I am here, I am open-minded and I have expressed my concerns. However, I am a little bit afraid that things have been done before we have even had a chance to speak up. I am really worried that we are going to make a major mistake and have abortion on demand in this country.

Chairman

We will move on to questioners. They will have three minutes approximately to pose questions and there will be three minutes for the responses. The first person to indicate was Deputy Jan O'Sullivan.

Deputy Jan O'Sullivan

I want to comment briefly on the previous speaker's comments. While we all want to respect each other's views, the statement that abortion will be used as a method of contraception needs to be counteracted. I do not believe that is true. We are not really here to express opinions, we are here to ask questions.

I want to follow up with Ms Logan on her statement to the effect that the Minister for Health provided an ex gratia payment on behalf of the State in the Mellet case. Does that mean the State has accepted responsibility for the harm experienced by Amanda Mellet and Ms Whelan and must, therefore, take steps to reform law, policy and practice accordingly?

Would that be Ms Logan's view?

Assuming that there will be a referendum, and that will be something to discuss in the future with regard to our own position, does Ms Logan have a view on whether we should propose the removal of Article 40.3.3° or replace it with other wording, with the possibility of legislation or medical regulation?

Ms Emily Logan

I will start with the Deputy's first question about the Minister for Health's response to the Amanda Mellet case. There are two parts to that question, the first being the possible challenge to the UN's competence. That is not uncommon in jurisdictions. Certainly in the past 14 years I have been involved a lot with and been in front of UN bodies. I know it is a political response, so it is not uncommon that politically a government may seek to undermine the competence of the UN Human Rights Committee. The committee has said that it is well aware of this and recognises it. The UN Human Rights Committee prints what are called general comments that are thematic elaborations on its thinking on things. The committee has said in individual communications that it recognises that while it is not a judicial body, it arrives at its decisions in a judicial spirit, which undermines the principles of impartiality and independence. The second part of that question relates to the legal basis for those decisions, which speaks to the Deputy's question about the response of the Minister, Deputy Harris. In linking this with the international law principles of the Vienna Convention, there is something called the "good faith principle". If a government ratifies a treaty, it creates a legitimate expectation that it is going to comply with the terms of that treaty. I would say that the Minister for Health's actions indicated a good faith response to the views of the UN Human Rights Committee in the Mellet case.

Will the Deputy please repeat the second question?

Deputy Jan O'Sullivan

Should Article 40.3.3° be replaced or deleted?

Ms Emily Logan

The simplest answer is that it should be provided for in legislation and regulation and, essentially, the current provision should be removed or deleted from the Constitution.

Deputy Mattie McGrath

I will take Ms Logan up on the offer to discuss it further.

Deputy Clare Daly

I believe the module is really important because it deals with the impact of Ireland's international legal obligations in terms of our domestic law. In that respect, some people might present international law as a sort of optional extra. Will the witnesses give a little bit more detail and explain why Ireland is bound by these obligations when we talk of violation and the State being sued? Will the witnesses explain this a little bit more?

Last week at this committee there was a lot of discussion around the issue of legal uncertainty in the context of the constitutional dimensions of abortion law. Have international bodies been concerned by the uncertainty in Ireland's current abortion law? Could this topic be teased out a little bit?

Decriminalisation is not covered in the report of the Citizens' Assembly, despite the fact that many citizens asked that it would be. We raised this with Ms Justice Laffoy who seemed to be of the opinion that it did not really need to be included in the report because if the law is changed, it will automatically follow. Will the witnesses please expand on this? They are very clearly saying that from an international human rights legal perspective, abortion must be decriminalised in all circumstances, regardless of what legislation might follow a referendum.

I turn now to the commission's view that we need to develop a health care approach to this matter.

Traditionally, in this State, Irish maternity care was dominated by the Catholic hospitals, with Catholic doctors developing the medical ethics that exist. Will the witnesses explain how international human rights law requires us to balance women's rights against institutional and personal religious freedom, and how that is balanced in other states?

Ms Emily Logan

Professor Mullally will deal with that.

Professor Siobhán Mullally

I thank Deputy Daly for the questions. First, with regard to our international legal obligations and the status of international law, which is the core of the question, when Ireland ratifies an international treaty it accepts a legal obligation in good faith to implement that treaty, so it is a sovereign decision taken by the State to ratify a treaty and thereby to comply with it and give effect to it. That is part of international treaty law. We have a good faith obligation - that is the terminology used - to give effect to our obligations under international treaties and to ensure effective remedies in any case of a violation of those treaties.

With regard to the decisions of a UN human rights treaty body, as in Mellet or Whelan, those are authoritative interpretations of the bodies that are competent as a matter of law under the relevant treaty, such as the International Covenant on Civil and Political Rights, to interpret those. Not only have we ratified the International Covenant on Civil and Political Rights, but we have also recognised the competence of treaty bodies to receive and consider decisions and to give their views on these. That was an additional step we took in ratifying the first optional protocol to the International Covenant on Civil and Political Rights. As a State, we have accepted those obligations as a matter of law.

The second question was with regard to uncertainty. As was also said last week, while it is not possible, as a matter of law, to achieve absolute certainty with any legal text, the protections that are afforded should ensure that a woman has effective access to a lawful abortion, that timely decisions are made and that procedures are accessible. That was precisely the problem in the A, B and C case with regard to the third applicant, C, where there was a finding of a violation of Article 8 of the European Convention on Human Rights where, the court found, there had been no access to an abortion that was lawful. This has also come up in the cases before the European Court of Human Rights in regard to Poland. Again, there was such a lack of clarity that women and girls had been subject to humiliating situations, and moved around from one place to another, because of the absence of timely and effective access to lawful abortions. That level of uncertainty has been referred to as a chilling factor both for medical practitioners and for women and girls with regard to their lawful rights to abortion.

On the third question in regard to criminalisation and decriminalisation, we referred in the policy document and also in our statement specifically to the views of the UN Committee on the Rights of the Child in 2016, where it called for decriminalisation in all circumstances. Again, this goes directly to the point around access to a safe and legal abortion being part of the right to the highest attainable standard of health and the need to ensure that the criminal law does not act as barrier to access to health services.

The final question was in regard to conscientious objection and religious freedom. In the extended policy document and in the submission we had made earlier to the Citizens' Assembly, we referred to the relevant provisions of international European human rights law and, with regard to the Polish decisions from the European Court of Human Rights, to the collective complaint from the European social rights committee on how health care services are organised. While there must be recognition of the right to conscientious objection, health services must be organised in such a way that there is effective access so that a health service provider, a medical practitioner, must ensure onward referral to a non-objecting practitioner, and any right to conscientious objection, of course, should not impede the right to life of a woman and to their lawful rights under an abortion regime. Therefore, there is an obligation of onward referral. Reference has also been made in the Polish context to decisions being given in writing to be justified to a greater level of transparency and clarity to avoid that kind of confusion and uncertainty for any woman or girl seeking access to a lawful abortion.

Deputy Kate O'Connell

I thank the witnesses for attending. The terminology "abortion on demand" has been used here today a couple of times. I want to tease that out a bit from the perspective of the Irish Human Rights and Equality Commission. When it is spoken about, as it has been here today, I suppose the question is: on demand by whom? I would see it as being the woman who may potentially be "demanding" the abortion. Would the witnesses have an issue with that sort of terminology in the sense of it then being a question of who has a right to block that woman's right? Do they understand where I am coming from? If we are using terminology which suggests a woman can demand an abortion if she feels like it, has the Irish Human Rights and Equality Commission any view on who might be the judge and jury in such a situation? While I may not be explaining myself well, the witnesses might be able to give me some answer on how they feel about that.

Another point raised here today is that the eighth amendment has saved so many lives. If somebody is prohibited from travelling for either financial or other reasons to another country, would the Irish Human Rights and Equality Commission see it as a good thing that women are prevented from travelling abroad to seek abortion and, therefore, we have all these children who, allegedly, are alive as a result?

The witnesses referred to the question of health versus life. I know neither of the witnesses are medical professionals, or perhaps they are, but they are not here in that capacity. Have they heard any evidence, when coming up with their documents, about what sort of health issues we are talking about? What springs to my mind is high blood pressure, pre-eclampsia, the risk of stroke and the risk, therefore, of permanent disability to the woman as opposed to death. Perhaps the witnesses could elaborate on that sort of terminology.

Finally, to give my own view, and I do not expect the witnesses to agree or disagree, as public representatives in a public forum such as this, we have to be very careful of listing out the gestational progression of the foetus within the womb. Untruths have been put out here today, things that are not factually correct. I am very concerned about the public looking on and putting a certain weight or gravity to comments of elected members who are just putting out lies. It is very serious for this committee's work. Reference was also made to these botched abortions which I hear being spoken about. Again, there is evidence to suggest this. I know Deputy McGrath has left the room. I think it is very concerning and not helpful to the committee's work if people are somehow, wherever they are getting this information from, not checking it before they put it into the public domain. I would like to put that on the record today.

Ms Emily Logan

I thank Deputy O'Connell. On her first question about the term "abortion on demand", we suggest the most appropriate term is a woman "requesting health care". With due respect, we certainly do not ever hear men demanding health care so why that term should be applied to women, I do not know.

In regard to the eighth amendment and saving lives, and whether we think it is a good thing that women cannot travel, no, we do not. We believe the existing system is a two-tier system whereby women who cannot afford to travel are put in a situation where their autonomy is diminished and their ability to make their own decisions about their own health care has been limited by the State, so we do not see that as a good thing.

It is probably better that the health matter be referred elsewhere, as we might be stepping beyond our level of competence. I suggest that it be left to a medical practitioner. The committee may be hearing from some medical practitioners, so if the Deputy does not mind, I do not feel that we have the-----

Deputy Kate O'Connell

It was mentioned in Ms Logan's presentation, which is why I raised it.

Ms Emily Logan

Yes. It is more health than life. The threshold of life is so high and we believe that it should be lowered to health, but that is a decision that is determined by a woman in consultation with her medical physician.

Deputy Kate O'Connell

I thank Ms Logan.

Chairman

Does Professor Mullally wish to add to that?

Professor Siobhán Mullally

There was a point on who should be making the decision. In our statement, the expanded policy document and previous submissions, we have expressed concern that barriers to accessing health care services might be put in place because of onerous certification procedures and requirements. We also expressed that concern with the 2013 legislation. Therefore, we recommend that any legislative or regulatory framework that may be put in place not repeat those barriers, which can cause unnecessary delays, trauma and, potentially, revictimisation for a woman or girl seeking access to abortion services. Therefore, it is essential that there be clarity in any legislative and regulatory framework regarding the decision-making process without the imposition of those onerous barriers.

Chairman

I thank Professor Mullally.

Deputy Ruth Coppinger

I also believe that this is a public Dáil committee. Therefore, if comments are made at this committee, people should be entitled, and have a responsibility, to comment.

This links with the point that was made about the lack of sexual and reproductive health education in Ireland. Regarding the comment "a baby's heart beats at 21 days", an embryo does not even have a four-chamber heart at 21 days. People are throwing these claims out, so they should be commented on and challenged.

Do the witnesses agree that the opposite of abortion on demand is forced pregnancy? Is that not the alternative? If we put restrictions in the way of someone who is seeking an abortion, we are forcing her to stay pregnant.

The witnesses might comment on a point that was made about the idea of abortion being another form of contraception. It is highly insulting. Abortion involves pain, expense - no matter what way it is procured - and a significant amount of difficulty, particularly for someone in Ireland, so it is belittling to suggest that. Do the facts from various countries that the witnesses have put forward not speak to Ireland's abortion rate being no less than any other country's where abortion is available? The idea about saving lives seems to be a myth.

Regarding sexual health, or the lack of it, Professor Mullally called for a scientifically objective policy. This committee should use scientifically objective terms. Last week and this, a number of members used the word "child". The scientific terms are "morula", "blastocyst", "zygote", "embryo" and "foetus". There are stages, and most people see the difference between them. It is not the case that everyone in Ireland is undivided on this. A minority of people may believe that the stages are equal, but most see the difference. I just wanted to challenge some points.

Do the witnesses agree that it is significant that a State-sponsored body such as the IHREC has proposed at a public forum like the Citizens' Assembly the idea that there needs to be abortion provision for socioeconomic reasons if people's human rights are to be upheld?

On the issue of rape, the witnesses stated that they opposed intrusive medical examinations for pregnant women. Do they agree that, if a rape provision is included in any abortion legislation, it would run counter to that, given that there would have to be some element of examination or the person would have to meet a certain threshold?

Professor Mullally stated: "The commission is of the view that a new framework for access to abortion should place the decision-making process primarily in the hands of the pregnant woman in consultation with her physician." Does she agree that the Citizens' Assembly's recommendation of abortion on request or without restriction up to 12 weeks would fit in with the idea of a pregnant woman being able to attend her own general practitioner, GP, and being prescribed the abortion pill, which is used in many abortions in Europe, or surgical abortion?

Chairman

The Deputy spoke for approximately four minutes, so she might let the witnesses respond, if that is okay.

Ms Emily Logan

If Deputy Coppinger does not mind, I will answer some of her questions in reverse order. She referred to the gestational term. I am conscious that we are not giving personal views - we are representing the view of the commission. In our policy statement, we have pointed out how gestational term limits in other jurisdictions are applied. The commission has not gone so far in our paper as to give the committee an answer on what that should be, but we have stated that any gestational term limit included in a reformed framework for access to abortion service should be devised in keeping with best medical practice and with the health of the pregnant woman as the primary focus. It should be necessary and proportionate and have due regard to a woman's right to bodily autonomy and her right to the highest attainable standard of physical and mental health.

We agree with the Deputy's comment on sexual education. Some of the terminology used about one of the reasons for an abortion being contraception is probably an unhelpful narrative. Sexual education has been an important part of our considerations and it should not be forgotten about in the broader consideration of sexual health and health rights for girls and women.

Professor Siobhán Mullally

As was heard at the Citizens' Assembly and elsewhere, a situation can arise where rape as a specific indication or ground can impose an onerous burden on a woman or girl, given the additional procedures or requirements and questions as to who makes that decision, on whom does the burden of proof lie and at what point can the decision be made. In any framework that is developed, we are concerned to ensure that there should not be any revictimisation - any repeat of trauma - for a woman or girl and there should be effective access to a timely procedure. It can take up to two years for rape proceedings to come to court, which needs to be borne in mind in the context of reflecting on the legislative and regulatory framework that may be put in place.

Deputy Bernard J. Durkan

I thank the witnesses for appearing before us. I will mention in passing that not all countries have equal provisions on the availability of abortion, as we heard during the assembly's discussions. Regarding the acceptability to our society, we would be foolish to reach a conclusion just because there has been general acceptance so far and the Citizens' Assembly discovered A, B and C in the various responses to it. There were many indications ahead of previous referenda that they would receive considerable support until the time came and they did not. We must operate on the basis at all times that, whatever we do and say, nothing is as clear as it may appear at this stage.

I would be of the opinion - perhaps I am naïve in this - that it would be absolutely essential for a rape victim to seek medical assistance immediately. There are no circumstances in which that should be avoided, including for general health reasons. This has come to my attention in cases where young children who were the victims of rape were frightened, unsure of what to do and were afraid to tell their parents or guardians. In those circumstances there is a serious void in what the witnesses have correctly drawn attention to in terms of the quality and availability of sex education in schools, but there is also a serious void in terms of what parents should know about what happens to their children. It is hugely important that the situation would be clarified. Regardless of the debate we are having in this situation, that is of fundamental importance to the rights of the child, who is the victim.

I have gotten myself into difficulty in the past by suggesting that in rape situations there should be a quick intervention. The counter-argument has been that the child who is not yet born is an innocent victim as well and that is a reason to allow the pregnancy to continue. I do not accept that. Apart altogether from the legal procedures taken against the perpetrator of a violent criminal act, there needs also to be a recognition that to allow the victim to become a victim again, as it were, and to have to continue to live with that, is unfair, unjustified and to my mind illegal in terms of an act against the person going unchallenged in that regard, apart from the-----

Chairman

Deputy Durkan is now over three minutes. Does he have a question to ask?

Sometimes it is important to qualify what the purpose of the question is, for everyone's sake.

Chairman

Within reason. I call Deputy Catherine Murphy. She has six minutes.

Deputy Catherine Murphy

I will be briefer than that, because Deputy Clare Daly has asked the question I intended to ask about decriminalisation. Last week we had Mary O'Toole, SC, before the committee and she reminded us that the Supreme Court had set the bar regarding the balance of rights and there was an equal right to life and that was only called into question in the case of a real and substantial risk to the life of the woman. The Protection of Life During Pregnancy legislation followed on to give effect to that. She made it very clear that it did not include the right to health. I picked up on the point Professor Mullally made, namely: "The commission is of the view that a new framework for access to abortion in Ireland should place the decision-making process primarily in the hands of the pregnant woman in consultation with her physician." I completely agree with that. In arriving at the decision on how to frame it - presumably there was consultation within the organisation - were there examples of other countries where she saw such an approach was in practical use?

Ms Emily Logan

We have included some information and I should preface my comments by saying they are not necessarily endorsements or recommendations but in the policy statement we look briefly at five other jurisdictions. There are other jurisdictions where that happens but we have not gone so far as to say that we are endorsing or making that recommendation; it is just a consideration for members, as legislators, but it does exist in other jurisdictions. Perhaps Professor Mullally wishes to add to that.

Professor Siobhán Mullally

The European Court of Human Rights at the time of the ABC judgment noted that 40 contracting states to the European Convention on Human Rights allowed for access to abortion on health grounds. That was part of what it was looking at. In terms of our mandate to look at international human rights law, that has been repeatedly found to be a part of the right to health to ensure that there is access to a lawful abortion on health grounds. In the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Discrimination against Women this is part of the development of international human rights law. That is what we are drawing on in terms of the nature of our mandate as a national human rights institution. In terms of what was described as being the European position at the time of the ABC judgment, the court noted that 40 contracting states to the European Convention on Human Rights at that time allowed for access to a lawful abortion on health grounds.

Senator Lynn Ruane

I thank both witnesses for their presentations today which I found very informative and useful. I join with my colleagues in commenting on some of the language that has been used here today. One comment in particular I found very offensive as a woman and as a mother; it was to make the assertion that a woman would practically arrive for her 20-week scan, find out the gender and say: "Ah no, it's a girl. I wanted a boy." It is a ridiculous and absurd view to have of women. I found it very offensive. I would just like to put that on the record. Members should research and come in here educated on the reasons women have abortions before they make comments like that.

I have two questions. One of them is based on the conversations today about rights of the unborn and of the child. Could the witnesses make a distinction and provide a little background on the right to life of a foetus, if there is any, and how they do or do not equate to a woman as a holder of human rights?

We may as a society place value on the foetus, and place value on access to foetal development, care and health if a woman is to proceed with a pregnancy, but that does not translate into human rights and equate to the same rights as the woman's. Perhaps the witnesses will elaborate on that.

Professor Mullally said the committee needs to include the development of a legislative and regulatory framework that provides for access to abortion for a list of reasons but, in practice, we are all aware of the many practical issues that arise when trying to allow for abortion in certain limited circumstances. How would she respond to the assertion that the only way for Ireland to fulfil its international obligations in this respect is to allow for terminations in early pregnancy on request? To meet our obligations, we would have to allow not only for these circumstances, but for abortion up to 12 weeks on request.

Professor Siobhán Mullally

The first question relates to the scope of the right to life. We have said previously that nothing prohibits protections of prenatal life and, in fact, the commission, in various submissions to UN bodies, has spoken about the importance of the State strengthening prenatal care, maternal health policy, and providing better supports for pregnant women. That has been part of various policy documents we have produced and submissions we have made to UN bodies. The position under international human rights law is that a woman's rights under, for example, the International Covenant on Civil and Political Rights to be free from inhuman and degrading treatment, her own right to life, right to privacy and right to non-discrimination cannot be undermined by priority given to the protection of prenatal life. That has been the position of the UN Human Rights Committee, for example. It is limited and a woman's rights must also be respected. The European Court of Human Rights in the RR and P & S cases involving Poland made findings of violations of both Article 8 on the right to private life and Article 3, in particular, on the prohibition on inhuman and degrading treatment. The court was clear that, although there was no European consensus in its view on the moment when human life began, the court had an obligation in respect of supervision, and states had obligations to comply with the requirements of the European Convention on Human Rights.

What was the second question?

Senator Lynn Ruane

It was about access to abortion up to 12 weeks without restriction.

Professor Siobhán Mullally

In our submission, we set out the legislative and regulatory framework we believe should be put in place and that a number of areas that should be addressed, including life, health, socio-economic circumstances and family circumstances. It is up to the Legislature then to deliberate further and arrive at a decision with regard to gestational limits, and we have set out approaches taken in different jurisdiction, how those have developed and the consideration that should be taken into account. The certification requirements should not put in place further barriers to women and girls having access to abortions and should not put in place conditions or situations where decisions cannot be made in a timely way, and there must be effective access to abortion services. It is within that context.

Deputy Jonathan O'Brien

I have one question relating to the terminology and the revised legislative framework and the definition of "serious risk" or "substantial risk". I presume that will be left in the hands of the medical practitioner. Do any UN conventions or other international laws define "serious risk" or "substantial risk"?

Ms Emily Logan

To my knowledge, they do not. The assessment of that risk is left to a medical practitioner and, obviously, individual cases are different.

Professor Siobhán Mullally

The term "real and substantial risk" comes from Irish law. It has been said in many contexts that this can create serious difficulties for medical practitioners in providing health care in a timely way and assessing whether there is a risk to life when complying with the requirements of the 2013 legislation.

With regard to international human rights law, the language used by UN treaty bodies is "risk".

That concludes this session of today's meeting. I thank Ms Logan, Professor Mullally and Ms Gallagher for their attendance and for their very helpful contributions to this afternoon's discussion. We will take a short break to allow our next witnesses to take their seats.

Sitting suspended at 3.33 p.m. and resumed at 3.45 p.m.

Chairman

I thank Ms Zampas and Professor Binchy for attending the first session, during which they heard my comments on privilege and defamation which, therefore, I will not repeat. Members are very glad to have the witnesses here to assist us with our work.

Ms Christina Zampas

I thank members and offer my congratulations on the important work they are embarking upon and the transparent and open process through which they are deliberating on the challenging and important issue of abortion law reform. I am an international human rights lawyer with almost 20 years’ experience of working on sexual and reproductive rights issues. I have done consultancy work for UN agencies such as the World Health Organization and the Office of the High Commissioner for Human Rights and have worked for international NGOs. I am here in my capacity as legal fellow in the faculty of law at the University of Toronto. My first job involved working for a Senator from New Jersey in the US Senate and I have also worked with parliamentary organisations since then and, therefore, have first-hand experience of the work of parliamentarians and its challenges and the very important contribution they make to the realisation of human rights in their countries. My presentation will primarily focus on human rights standards in respect of abortion and state obligations in that regard, which is what the committee has asked me to present upon. I hope it can be helpful to members as they address the recommendations of the Citizens' Assembly.

States create international human rights law and it is based on humankind’s common understanding of the inherent dignity and rights of every human being, which is a notion shared across religious and non-religious ethical frameworks. Ireland has been an important player in the development of the human rights system through helping to create binding treaties and voluntarily ratifying them and by nominating and electing members to UN treaty bodies, which are comprised of independent experts that monitor state compliance with such treaties. Ireland has also sat on the Human Rights Council, which is the UN’s most important intergovernmental body on human rights. Ireland has time and again respected its human rights obligations in many ways. It has done so not just because those treaties are legally binding under international law but because they provide guidance on how to address complex and sometimes competing interests in light of what people are experiencing.

Reproductive rights have long been recognised as human rights and are enshrined in international treaty provisions. International human rights bodies have long recognised that a wide range of human rights guarantees are undermined when women and girls do not have access to safe abortion services, particularly if abortion is restricted and-or criminalised. Those rights include the rights to life, health and privacy and the right to be free from discrimination, torture and other ill-treatment and gender-based violence. The right to health requires states to take legal and policy measures to prevent unintended pregnancies and unsafe abortions. Such measures include respecting the right of women to make autonomous decisions about their sexual and reproductive health and also the liberalisation of restrictive abortion laws to guarantee women and girls access to safe abortion services and quality post-abortion care.

Human rights bodies have considered such failures to ensure women's and girls' access to abortion to be forms of discrimination and inequality in the enjoyment of rights. The UN Committee on the Elimination of Discrimination against Women, CEDAW, has confirmed that measures to eliminate discrimination against women and girls are inappropriate if a health care system lacks services to prevent, detect and treat health concerns specific to women and girls, noting that it is "discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women".

The urgency of the human rights concerns in Ireland is reflected in serious human rights violations amounting to cruel, inhuman and degrading treatment, as found in the Mellet and Whelan cases. The UN Human Rights Committee held in these two cases that prohibiting and criminalising abortion in situations of fatal foetal impairment subjected these women to conditions of intense physical and mental suffering, and that no justification could be invoked nor were there extenuating circumstances to excuse such harm.

Human rights bodies have also held that a woman's decision to continue or terminate a pregnancy falls within the sphere of private life, which includes bodily integrity, holding that restrictive laws and practices interfere with a woman's decision, violating this right. Human rights bodies have long stated that to comply with human rights obligations, states should decriminalise abortion, liberalise restrictive laws and remove barriers that hinder access to legal abortion. While they have noted that states must ensure access at a minimum in cases of threat to the woman's life or health, in cases of rape or incest and in cases of severe or fatal foetal impairment, they have also called on states which allow abortion only on such minimum grounds to liberalise their laws. This is because human rights bodies are recognising the problem of narrow laws framed around minimum grounds in that, first, they do not guarantee effective access to lawful abortion and, second, women and adolescent girls seek abortions for various reasons, many of which do not fall under these grounds, and that there are harms and human rights implications in these cases as well, especially for marginalised women. Last year four UN experts issued a joint global statement recommending the good practice found in many countries that provide women access to safe abortion services on request during the first trimester.

UN human rights treaty bodies have also recognised this reality by directing states to address abortion in a more general manner without delineating grounds. For example, the UN Committee on the Rights of the Child recommends that states should ensure access to safe abortion and post-abortion care. It also recently made this recommendation to Ireland. Another expert body, the UN Working Group on Discrimination against Women recommends that states should recognise women's right to be free from unwanted pregnancies, noting that many countries where women have the right to abortion on request supported by affordable and effective family planning measures have the lowest abortion rates in the world, and that states should allow women to terminate a pregnancy on request during the first trimester or later, on minimum grounds.

The World Health Organization also recognises that restrictive legal grounds for abortion and other legal, regulatory and administrative barriers contribute to unsafe abortion because they deter women from seeking care, cause delay in access to services which may result in denial of services due to gestational limits on the legal grounds, and create complex and burdensome administrative procedures. The Citizens' Assembly recommendation on access to abortion without restriction as to reason is in line with these human rights and health standards.

Although a wide range of laws and policies ultimately determine whether women's and girls' equality and right to be free from discrimination are a priority for states, trusting women and adolescents to make autonomous decisions about their sexuality and reproduction is central, including deciding whether to carry a pregnancy to term. The UN Committee on Economic, Social and Cultural Rights has explicitly articulated increased access to abortion, as well as other sexual and reproductive health services, within states' obligation to respect the right of women to make autonomous decisions about their health.

The UN Committee on the Rights of the Child has called on countries, including Ireland, to ensure that the views of the pregnant girl are always heard and respected in abortion decisions. The Committee on the Elimination of Discrimination against Women has expressed concerns about one country's convoluted abortion law, which makes women dependent on the benevolent interpretation of a rule which nullifies their autonomy, and noted that the state party should review the abortion law and practice with a view to simplifying it and to ensuring women's autonomy to choose.

Having respect for women's and girl's decision-making agency reflected in the law is a key indicator of the degree to which women's equality is respected. The achievement of substantive equality requires states to understand how women, and subgroups of women, are disadvantaged in practice by laws, policies and institutions. Laws which do not place women at the centre of care and do not respect their decision-making, wherever those laws are, undoubtedly cause harm to all women, but particularly to marginalised women.

I have observed in my almost two decades of work on this issue that undoubtedly in every country with a restrictive law, the most impacted are vulnerable populations, such as women migrants, women with low economic status, women with disabilities, and adolescents. Ireland is no exception. The United Nations human rights bodies have time and again, including in findings against Ireland, recognised the discriminatory effects of restrictive and criminal regulation on women's access to lawful abortion on the basis of sex, age, geographical location and income. The World Health Organization has underlined that restricting legal access to abortion leads to illegal and often unsafe abortions, and to social inequities, including because of the burden of travel. It does not result in fewer abortions or in significant increases in birth rates.

Women and girls encounter many barriers to abortion, one of which is its criminalisation. Human rights bodies have called on states to decriminalise abortion, which means that abortion is no longer regulated by criminal legislation and is not a criminal offence. The Children's Rights Committee has urged states, including Ireland, to decriminalise abortion in all circumstances. CEDAW has also stated that criminalisation, as well as denial or the delay of safe abortion and post-abortion care, are forms of gender-based violence that may amount to torture or cruel, inhuman or degrading treatment and that countries should repeal criminal legislation.

Human rights bodies recognise that criminalisation of abortion contributes to stigmatisation and creates a chilling effect on access to lawful services. In the Mellet case, the UN Human Rights Committee recognised how the criminalisation of abortion degraded and stigmatised Ms Mellet through separating her from the standard way of treating patients and forcing her to travel, and that the shame and stigma associated with the criminalisation of abortion had exacerbated her suffering.

Human rights bodies have also recognised the chilling effect of criminal law on the exercise of professional judgment in providing women and girls with care and have called on states to alleviate its effects. In A, B and C v. Ireland, the European Court of Human Rights noted that it "considered it evident that the criminal provisions of the 1861 Act would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act".

Criminal provisions present barriers not only in the context of abortion, but also to other reproductive health services, impacting the quality of care that women receive in pregnancy and childbirth, including in the context of miscarriage. Some national courts understand that the criminal law, as well as other ways of restricting abortion, cause harm and are not a proportionate means to achieve a state's objective to protect prenatal life. For example, European constitutional court decisions across Europe have upheld abortion-on-request laws when faced with challenges due to claims of constitutional protection for prenatal life. While these courts acknowledge that the state has a legitimate interest in protecting prenatal life, the select means of protecting it must be consistent with women's rights. In doing so, these courts have referenced their countries' respective obligations under international human rights treaties.

Placing women at the centre of care does not mean that states should ignore foetal interests. The objective of protecting prenatal life is legitimate but this can be achieved in ways that are consistent with women's rights and which support women. In addition, the evidence is clear that criminal abortion laws are not effective in meeting the state's objective of protecting prenatal life. They do not affect the overall incidence of abortion; they just make it unsafe and burdensome.

This approach is in line with international and European regional human rights norms. No international or European human rights treaty or treaty monitoring body or court has provided that right-to-life treaty provisions apply before birth. This was confirmed by the Council of Europe Commissioner for Human Rights in his report on his visit to Ireland last year. That report states, "The Commissioner stresses that the Eighth Amendment of the Irish Constitution [...] departs from the position consistently held by human rights bodies that the right to life, as enshrined in relevant international treaties, does not apply to prenatal life." In addition, in a landmark case against Peru in which a sexually assaulted child was not provided with an abortion, in part because of state measures to protect prenatal life, the UN Committee on the Elimination of Discrimination against Women found violations of the convention, confirming that foetal interests cannot trump the human rights of women and girls.

Human rights bodies have long referenced achieving reductions in the rate of abortion, not through restrictive abortion laws or mandating recognition of "the right to life of the unborn" but by means of increased access to family planning services and comprehensive sexuality education, to safe motherhood services and prenatal assistance, including to reduce spontaneous miscarriage, and to social and economic protection to ease the burdens of having children. Human rights bodies have also recognised that any procedural or other barriers to abortion can impact the ability to access legal services in practice. Human rights require that "in cases where abortion procedures may lawfully be performed, all obstacles to obtaining them should be removed".

Human rights bodies have recommended that states remove barriers such as mandatory parental consent requirements and financial barriers to abortion services. They have also specified that where, under domestic law, health practitioners are allowed to refuse to provide abortion services on grounds of conscience, states must adopt regulatory frameworks that guarantee access to abortion is not hindered by such practices. They have never mandated a state to recognise conscientious objection in the context of provision of abortion services. They have also raised concerns over judicial or prosecutorial authorisation prior to obtaining an abortion on grounds of rape, and multiple provider authorisation requirements, including in recommendations to Ireland regarding the Protection of Life During Pregnancy Act. They have also urged states to eliminate and refrain from adopting mandatory counselling and medically unnecessary waiting periods prior to abortion and to "[e]nsure that health care professionals provide medically accurate and non-stigmatizing information on abortion". The World Health Organization has also confirmed these as "barriers [to] abortion [that] should be removed".

Access to information is critical to the realisation of all human rights. In the context of health care, including sexual and reproductive health care, states have an obligation not to censor, withhold, misrepresent or criminalise information to the public in general or to individuals. The European Court of Human Rights, in two cases concerning lack of access to lawful abortion, found Poland in violation of the European Convention on Human Rights for lack of proper counselling and information on abortion. Human rights bodies have criticised Ireland's Regulation of Information (Services Outside the State For Termination of Pregnancies) Act 1995 as not being compliant with human rights. The World Health Organization also emphasises that the information given to women seeking abortion services must be unbiased, non-directive and provided only on the basis of informed consent.

These human rights standards show that narrow exceptions to abortion bans are inadequate to eliminate the harms that such laws impose on women and girls. The Protection of Life During Pregnancy Act is an unfortunate testament to how grounds-based laws can hinder women's and girls' rights and harm their health. The urgency of the problem is reflected in the recent decisions of the UN Human Rights Committee against Ireland. Well-functioning abortion laws are guided by and directed at protecting women's and girls' health and human rights. The human rights framework and its obligations provide a common-sense, evidence-based, practical approach, not only to permit expanded access to abortion but also to ensure the delivery and availability of quality abortion services. Combined with guidance from the public health field, including the World Health Organization, human rights enable states to help realise women's equality, regardless of their age, income or background.

Chairman

I thank Ms Zampas for her presentation. I now ask Professor Binchy to make his presentation.

Professor William Binchy

I am very grateful and honoured to have been invited to appear before this very important committee. It is doing excellent work for Ireland, for the good of Ireland and for the people who live in Ireland. I have prepared an opening statement but I will not inflict it upon the committee. I thought it might be useful, in light of the good, long, two-hour discussion the committee had with the members of the Irish Human Rights and Equality Commission earlier this afternoon, to telegraph the debate a little in discussion. I wish to make three substantive points to the committee in my opening remarks.

Before doing so, I will state my value position, which is one that is at the core of human rights philosophy. We are not simply talking about rules and regulations here; what we are talking about is an insight, a value judgment, as to the human condition. What human rights philosophy is about is a very simple value. One may accept it or reject it - some people do reject it - but the value is the equal, inherent worth of every human being - his or her equal value. That is it. Whether rich or poor, old or young, early developmental stage or late developmental stage, no matter his or her mental capacity - you name it - it does not matter. That value says all human beings, by virtue of their humanity, are entitled to protection and respect. They have inherent dignity. It is not given to them by human rights committees, by members of this committee, as legislators, or by courts; neither is it taken away from them by courts or by legislators. It is their inherent value by virtue of being human beings. Can I prove that statement to the committee? Can anyone who subscribes to this essential core philosophy of human rights prove that statement to the committee? Absolutely not. It is not provable empirically, but one either accepts or rejects it. If one accepts the principle of equal human rights, it has implications in the area the committee is dealing with, namely, the protection of unborn human beings. We can describe them scientifically as blastocysts, foetuses and embryos and then, when we get to the post-birth stage, we can describe that little entity, which is utterly limited in its relational capacity and absolutely dependent on other human beings, as a neonate but, frankly, that is not very human language. Young little babies who have recently been born are human beings and small unborn children are human beings. My essential argument presented to the committee is this: let us stay real, let us keep our eyes open and let us recognise the genuine humanity and equal worth of every human being. That is the premise on which my remarks are based. That is my value position.

As I said, I wish to talk about three matters: the Citizens' Assembly's recommendations to the committee, which are totally familiar and which form the subject matter of the committee's establishment; human rights treaties and monitoring bodies; and the recommendations of the Irish Human Rights and Equality Commission. I will speak briefly; I do not believe I will speak for longer than the ten minutes allocated.

The committee is so familiar with the first matter, the recommendations of the Citizens' Assembly, that we can shorten that discussion. I think members will agree that it is notable that the Citizens' Assembly recommends, among a range of other measures, that abortion should be available for no stated reason, on request, and on grounds of disability. The recommendations do not use the word "disability", but that is how it translates in any meaningful sense if we stay real. When one talks about foetal anomaly, one is talking about disability. Let us think about both of these grounds. The first is abortion in wide-ranging circumstances, without control.

We have the discussion about the expression, "abortion on demand". I do not particularly want to use it necessarily to stigmatise the phenomenon but merely to describe it. Let us take another expression which is used by those who are enthusiastic for legalised abortion, which is "abortion based on the right to choose". I have always been struck, and perhaps the committee has too, that nobody ever finishes the sentence, "the right to choose". If the sentence is finished, it becomes not so self-evidently obvious but highly disturbing to any person of humane sensibility: "the right to choose to take the life of another person". As a general proposition in our understanding of ethical relationships between human beings, do we accept that anyone has the right to choose to hurt another person or take the life of another person? It is a proposition which is absolutely contentious, yet in the context of abortion, the half sentence, "the right to choose", is articulated as though it were a self-evident, obvious good.

It is worth probing this a little and examining precisely what this means. I say that because the Citizens' Assembly's clearly is a right-to-choose proposal, the right to choose to have abortion on request. If one goes back to the basic premise of the humanity of every human being and the equal right to life of every human being, I would respectfully say this is an unacceptable proposition. The assembly also recommended abortion for disability. If one is in favour of the right to choose, why would one be against abortion for disability? What are the moral, justice and human rights objections to it if one embraces the principle that one can have abortion for any reason unstated and not even mention the reason? Clearly, an unmentioned reason might in some circumstances be abortion for disability. Regarding those who say they are against abortion for disability but are in favour of the right to choose, frankly, further reflection has to be given in this area. If the committee thinks about the right to abortion based on disability, I was a member of the UN Human Rights Commission for 11 years and I was in New York deputising for Professor Gerard Quinn, who is the Irish world expert in the area of the rights of human beings with disability. It was interesting to listen to the discussion on the formulation of the UN Convention on the Rights of Persons with Disabilities and especially the area of the right to life of persons with disabilities. Article 10 of the convention says essentially that state parties recognise the right to life of every human being and guarantee to protect that right without discrimination on the basis of disability. If the committee is going to address the question of human rights, it is important for it to address that consideration of recognising the rights of every human being without discrimination and specifically without discrimination on the basis of disability. Manifestly, the Citizens' Assembly violates that human rights protection.

I refer to international human rights treaties and their monitoring bodies. States can agree or not agree to ratify a convention. They are perfectly free not to. They are involved in the UN in the formulation of treaty negotiations in this area. As chief commissioner Logan correctly said, most of those treaties, if not all, when it comes to the area of the right to life and dealing with areas which could impact on the area of protection of unborn children or abortion, have been discreet in the sense of banning abortion because to do so would mean many countries would not, and could not, ratify the convention. They leave it open, as she said, in order that each state can make its own mind up to ratify the convention on the basis of its interpretation of what that particular provision means. Let us assume Ireland is against the idea of abortion. Ireland can ratify all those various conventions and covenants and has done so. Another state with wide-ranging abortion can equally do so on the basis that its interpretation will not ultimately yield an outcome which says that what it is doing is contrary to the convention in question. Its support and ratification is solicited specifically on that basis. Ireland ratified many of these conventions and covenants before and after 1983. This is a consistent State policy of Ireland at all stages, and nobody has suggested, nor could they suggest, for a second that Ireland, in doing so, was agreeing to undertake to change its Constitution to introduce abortion. That is clearly contrary to the good faith basis on which its support and ratification were sought. None of those treaties provides for a right to abortion. I outline that proposition with full certainty.

We then move to the monitoring committees. Each of the treaties has a monitoring committee to police and support its implementation in individual countries, and they do excellent work as a general proposition in encouraging states to adhere to their human rights obligations, which they have undertaken by ratifying the treaties in question, but let us stay real. I implore committee members that if they stay real, they will have to accept the value system, in the past decade or so especially, of the monitoring body members, some of whom are judges and lawyers and very many of whom are enthusiastic proponents of what might be called a right-to-choose philosophy. That is their value system, they are perfectly entitled to it, they hold it conscientiously and those are their views. The monitoring bodies do not articulate law, judgments or obligations that are based on the treaty, which incorporate a treaty obligation. The relationship between states in international law and the relationship between international law and domestic law is a subtle system, but given the manner in which it is structured, the treaty is the obligation. The monitoring committees have certain functions with certain implications, but it does not matter what they say. Ireland is not required to act in a manner which is contrary to the obligations it took on when it ratified the relevant treaties in question. If one stays real, one will say, if one is speaking as a legal analyst and not a partisan, the manner in which the monitoring committees have simply wiped off the stage any consideration of the right to life or, indeed, any rights of the unborn child is striking. If members read the various decisions they have taken and recommendations they have made, the unborn child just is not there. That is a striking critique that can be made. One Irish commentator has suggested that the manner in which the committees have operated is so manifestly at variance with what is sound international law that their findings in this area should be regarded as ultra vires. That is the situation about the monitoring committees. I greatly respect Ms Zampas. I have had an opportunity to chat with her and I like her very much. We disagree on this particular issue. She has articulated in her very coherent paper many findings of monitoring committees. These findings represent the values of those committees, do not penetrate domestic law, and are inconsistent with the values which Ireland understood it was importing when it ratified the conventions in question.

I refer to the Irish Human Rights and Equality Commission, IHREC, recommendations. The committee has had a long discussion about those recommendations, but if it was contemplating adhering to the commission's proposals, I will spell out in more real terms what they mean. They mean a right-to-choose philosophy or abortion on demand. It does not matter how it is described, it means essentially abortion without any meaningful restrictions. Abortion based on the test of well-being, which is proposed by the commission, would not be a ground that would constitute a limited ground, and I think the committee would agree. Abortion based on socio-economic or familial status or circumstance equally would not constitute a limiting ground. The commission says that the scrutinising process whereby these grounds would be implemented should be as minimalist as possible. The committee and the commission had some discussion about late-term abortions and there is some discussion about that in the commission's submission, but there is no indication whatsoever on the part of the commission that it had any concern with late-term abortions from a human rights perspective.

From a human rights perspective, the commission did not think it appropriate to mention any human rights concerns about an unborn child in the seventh month of a pregnancy. It talked about the issue but it did not talk about it from a value perspective in regard to the protection of the unborn child. If one goes through the text of the paper, as with so many of those decisions and recommendations by the monitoring committee of the various treaties and covenants, one will be searching almost in vain for a reference to the unborn child, foetus, blastocyst or embryo - let us not worry about the terminology. One will search in vain for a reference to that flesh-and-blood human being who constitutes a human being whose life is worthy of protection. I think the committee has caught my drift and I hope I have not overstated it.

If the committee believes, which it may not, that every human being has an inherent worth and dignity and is worthy of respect, the idea it would contemplate the Citizens' Assembly recommendations to the effect there should be wide-ranging abortion or that it should contemplate implementing the proposals by the Irish Human Rights and Equality Commission, which are effectively wide-ranging abortion, then I strongly recommend it not to take that course of action.

I will say one last thing, which might seem to be a slight tangent but which nonetheless might be important for future discussion, about the European Convention on Human Rights, which is a regional convention as opposed to global ones from the UN, and the European Court of Human Rights. My invitation to the committee is to get real and stay real. The European Court of Human Rights has a problem - I think the committee will agree - and always had a problem with the right to life provision in Article 2 of the European Convention, which recognises the right to life. How will it, as a political body that has to maintain the support of countries throughout Europe, deal with the right to life? It is one thing to create a treaty such as the Convention on the Rights of the Child or the International Covenant on Civil and Political Rights and let each state ratify it with its own interpretation of rights holders and the right to life. It is another thing when there is a European convention that actually has teeth, real sanctions and practical political implications.

What the European Court of Human Rights has done will come as no surprise. It is not a criticism of it but a comment and I defy anybody to say otherwise. Over the past 30 years, the court has adopted a political interpretation of Article 2 and a strategy of margin of appreciation by not saying Article 2 has any particular meaning. Each state has the entitlement to interpret it as it wishes in terms of how it understands rights holders under Article 2. That is just about okay from a political-pragmatic point of view. When one then throws in a consensus doctrine, which is the idea that when a number of states move in a particular direction, the court follows them once they have reached a certain critical mass, then human rights have been moved into the area of majoritarian head-counting. That is the way the court operates. It has not done so yet in the context of abortion but there are apprehensions and concerns that it might do so in the medium future. If a human right depends on whether 30 or 40 countries have adopted a particular strategy, I think the committee will agree it is a form of positivist law. We have moved well away from the value that there is respect attributable to a human being by virtue of their very humanity.

The European Court of Human Rights is a political animal. It operates in a political context and will behave in a manner which it sees as politically, pragmatically appropriate. In the medium term, that presents challenges to Ireland. What the committee and Ireland should not do is simply roll over and wait for the consensus doctrine to apply in Europe or simply say we will go along with the "right to choose" philosophy of the individual members of so many of the monitoring committees. If Ireland believes the unborn child is worthy of protection, it should absolutely assert that right. When we do get a referendum, as we most likely will next year, that will be the issue. It will be whether we recognise that unborn children are entitled to respect for their dignity and worth or not. It is a stark issue.

Having promised to finish, I will now finish and say I think it was clear from the discussion that lasted two hours with the Irish Human Rights and Equality Commission that it is a stark choice. Those so-called halfway-house grounds are not in practice or intended to be limiting grounds; rather they are grounds that open the door to wide-ranging access to abortion. They are intended by those who propose them to be so. That is not in any sense to make a bad faith accusation - they are actually intended to be wide-ranging grounds. The choice is a stark one however it is described in language. It is a choice on one side between protection of unborn children based on their equality, equal respect for their mother, the right to life of the mother and absolute assurance in those circumstances that the mother's life is not imperilled in any way and, on the other side, wide-ranging abortion. I do not believe there is a halfway house in practice, if we stay real.

Chairman

I thank Professor Binchy and Ms Zampas for their presentations. We will now move on to the question and answer part of the debate. There are two speakers left. Deputy Daly opted to have ten minutes in this session. Senator Gavan has given his remaining five minutes to Deputy O'Reilly.

Deputy Louise O'Reilly

I thank the Chair and the witnesses for their presentations. I am struggling with the presentation. I do not mean this to be in any way disrespectful to Professor Binchy. The purpose of this committee is to discuss the potential legal implications of the recommendations of the Citizens' Assembly. We sought information and evidence from those who presented to us. Regrettably what we have received from Professor Binchy is opinion and the use of what I would describe as highly emotive language. I do not think it adds much to our debate or is in any way helpful. Perhaps we did not make it clear that we sought evidence. When we hear various decisions but no quotes it does not in any way help us to arrive at conclusions. The statement Professor Binchy gave us contained a reference to his own personal experience. That is opinion; it is neither evidence nor information, which is what we sought.

We asked previous presenters to detail for us the grades of risk in terms of health and whether it is possible to define in law terms such as "serious risk" and "grave risk". Will Ms Zampas address that? I understand it is difficult but she might be able to give us some information in that regard from her experience. For the benefit of the committee, will she comment on Professor Binchy's statement that the monitoring bodies have a particular value system and that it somehow influences the decisions they come to or that in some way they are biased? There was no evidence given as to what the value system is or to how it manifests itself. Will Ms Zampas give us her view on what that is?

Chairman

I call on Professor Binchy to respond first.

Professor William Binchy

I thought it was a criticism rather than a question.

Deputy Louise O'Reilly

I did not ask Professor Binchy a question.

Professor William Binchy

The Deputy is perfectly entitled to her view but I think there was legal analysis in my presentation. This session is on human rights. From a human rights point of view - if I summarise without imposing all that material on the committee again - the point I am making is there is a stark choice for the committee, because in practice when the proposed shopping list of grounds are analysed, they amount in intent and effect to wide-ranging abortion. That is a legal point, not an opinion. It may be right or wrong but it is a legal point. The point that monitoring committees have a certain function but that the treaty obligations of the State are somewhat distinct is also a legal point which may be right or wrong. There was legal analysis buried in the presentation.

Ms Christina Zampas

On the question as to whether human rights bodies have defined what "risk to health" is, they have not done so precisely because they are human rights bodies. They are not medical institutions with medical knowledge. In Europe, in countries where a health exception extends beyond the time limits for abortion on request, the laws do not define it because it really depends on the woman's individual situation. That assessment is best made in a clinical setting as opposed to by the legislature or, worse yet, in a courtroom. I think the treaty bodies have viewed it in the same way.

Deputy Louise O'Reilly

Does the World Health Organization, WHO, have a definition that might be used?

Ms Christina Zampas

I am not sure but I think someone from the WHO is coming before the committee. It might be best to ask him.

There was a question on the value systems and a suggestion that they are biased. I mentioned this briefly in my opening statement. When Ireland ratifies treaties, for example the International Convention on Civil and Political Rights, ICCPR, the Human Rights Committee monitors Ireland's adherence to the treaty. That is the committee that issued the decision in the Whelan and Mellet cases. Article 2 of the ICCPR clearly states that the State will fulfil its obligations under the provisions of the treaty to all persons within its territory without discrimination. One of the treaty's provisions actually creates the human rights body that monitors State compliance. When Ireland ratified that, it ratified itself to come before a committee that has an interpretive mandate. By way of example, on its own the right to privacy means nothing - it is just a phrase. There must be interpretive bodies to define what it means. Ireland has ratified the treaty which creates this interpretive body and also the optional protocol which Ms Mellet and Ms Whelan used when they filed cases against Ireland. Ireland agreed to provide that individuals within its territory can file individual complaints against Ireland. If Ireland were to ignore that, it would ignore the essence of ratification of the optional protocol to begin with.

Chairman

I will move on to Deputy Clare Daly, who has ten minutes in total.

Deputy Clare Daly

I thank both contributors. I will direct more of my questions to Ms Zampas because I think her contribution was very evidence-based. We are dealing with changing our laws here. Professor Binchy is obviously entitled to his opinion. He explained very well how that opinion may be at odds with practically every human rights body on the planet, including with our own Irish Human Rights and Equality Commission, and indeed that he is at variance with the Citizens' Assembly. I do think he should correct his assertion that the Citizens' Assembly recommended abortion for disability. That is not in any of the recommendations. He may need to read them again.

Professor Binchy has repeatedly referred to the fact that abortion is a violation of the unborn's right to life. If that was the case, why does he think that no international or regional human rights body has ever found a country to be in violation of human rights by providing broad abortion?

Professor William Binchy

I think the reason is the one I gave already, which is that these treaties are inherently political. They are negotiated politically in New York or in Europe as the case may be, or in whatever region we are talking about, and they have this conscious diplomatic, ambiguous language which is used. It is precisely to allow for ratification by states that have had wide-ranging abortion going back many years and states that are against legalised abortion and that protect the unborn child. That is the whole strategy that is used by those who are formulating the treaties. Believe me, that is absolutely on record. It is not an opinion but an absolute acknowledged fact by everybody who is involved in the negotiation of treaties. The Deputy can read it and see it for herself. When it comes to the area of abortion, there is high alert in the discussions and tiptoeing. Those who are formulating these treaties want them to be implemented. If they were to have what might be regarded as a pro-life treaty, they would have relatively few ratifiers in the present international climate. The Deputy is absolutely correct to say that in the international climate, particularly in certain quarters, there is wide-ranging support for legalised abortion. That is obvious. We would not dispute that.

Staying real, I think I am correct in saying that in so far as one can actually assess these matters - one has to be tentative about the empirical evidence here - there is strong evidence that the abortion rate of those Irish people who have abortions outside the country is actually lower than England, for example, by a considerable multiple. However, that does not matter for the purposes of Deputy Daly's argument. Are abortions taking place abroad? Yes, they are taking place, manifestly, if we stay real. Are there any proposals to introduce limitations in that area? No, is the short answer.

Sociologically, the Deputy is right in what she says and I am sure she is right also in saying that there are disparities in certain circumstances, which by no means explain the entire phenomenon between rich and poor. Her point is an entirely correct one. If the protection of the right to life of the unborn child is not important, then that point has huge validity. If it is important, however, the distinction that the Deputy identified would not be a reason for actually introducing a facility in this country for taking the life of the unborn.

Deputy Clare Daly

Ms Christina Zampas

I will begin with the Deputy's first question on grounds-based regimes and how they function. The only one of the 47 member states of the Council of Europe that has a minimum grounds-based regime which international human rights law speaks to is Poland. Ireland has the second most restrictive law in Europe. Malta has a total ban, Ireland has a life exception and Poland has these four grounds. As was referenced earlier by the Irish Human Rights and Equality Commission, there have been three cases before the European Court of Human Rights in respect of Poland's abortion law. Those cases did not seek an expansion of the grounds but challenged the fact that these two women and one girl, in separate cases, did not get access to lawful abortion services in Poland.

I am struggling to understand how the witness can ask this committee to get real about the inherent right to life that foetal life or the unborn child has but then say he does not think the right to travel should be taken out of the Constitution. What does the witness see as an unborn child having an inherent right to life? Which one should be protected? He replied to Deputy O’Connell that he does not believe the right to travel should be taken out. He is saying some people should be able to travel. In reality it is quite an elitist view of an inherent right to life. Is it only those in minority groups? What unborn children actually have that right if it will not be protected at all costs? This inherent right to life makes the whole argument incoherent.

The presentation started with a list of premises and a conclusion. As a philosophy graduate of logic, premise No. 1 fell down when it said that foetal life and human life have an equal right to life. Everything else fell from thereafter for me.

I agree with the presentation on disability down to the last sentence. While I agree with the first part, what about the right to life of people, the child or young girl with a disability who needs to access abortion but cannot travel in some situations due to a disability? When one talks about the rights of someone with a disability, one is not talking about foetal life and a possible disability they will have, one is talking about a person in the world. Will Ms Zampas elaborate on that in a human rights context? If the unborn child has a significant foetal abnormality that is not likely to result in death before or shortly after birth, how can the State's duty to combat discrimination against disabled people be balanced against its duty to ensure women have access to abortion? Are they comparable in the sense that when we talk about discrimination against disabled people, we are in fact not talking about foetal life?

Ms Christina Zampas

Human rights bodies, as I said in my presentation, have recommended that countries ensure access to abortion in cases of severe or fatal foetal impairment. They go back and forth and are not always consistent. Looking back at the recommendations over time, they have always been severe. Lately, they use the term “fatal” and sometimes they use “severe or fatal”. It is hard for a legislator or a committee member to decide for a woman how it will impact them. These are very difficult decisions. These are always wanted pregnancies. They get the determination very late and it is a difficult decision to make. Women make those decisions, oftentimes with a heavy heart. We have to keep that real and see that those are not easy decisions for women to make. They are very individual decisions.

The treaty bodies have never said the foetal impairment grounds should be eliminated in a law. The Convention on the Rights of Persons with Disabilities recently issued a general comment on women and girls with disabilities. It recommended states should ensure access to sexual and reproductive health services, the same as any other women, taking into consideration their disability and their needs. It never addressed the issue of abortion on the grounds of foetal impairment. That says a lot in its first general recommendation on women with disabilities.

The best way to address the problem of discrimination against persons with disabilities is to address the underlying discrimination. Why is this happening? Society needs to take steps to make the individual's life, but also the family life of the parents, easy. There should be benefits, social and educational supports. It is about time Ireland ratified the Convention on the Rights of Persons with Disabilities because it would really help setting its policies straight on helping persons with disabilities. That is the best way to address this. Restricting abortion on impairment grounds is not going to limit access to abortion. Some countries do not have explicit foetal impairment exceptions, but they read health exceptions very broadly to include any sort of health issue.

Professor William Binchy

What Ms Zampas said is important because it does provide corroborative evidence of what I said to the committee generally about the enthusiasm of the members of monitoring bodies for a particular value system. It is astounding that in an area such as a convention on the rights of persons with a disability, an impairment ground does not interest the committee. They fail to be sensitive to the fact that there is a ground for abortion based on disability and in terms of a disability convention one would have thought they would have some interest in that. However, as Ms Zampas rightly said, they do not. Why? The reason is that is their value system. They are perfectly entitled to their value system. There is no question of conspiracy or bias. These are words I would not use. Their value system, however, means that the way they understand human rights in a convention on disability means that they do not see that abortion for disability presents problems.

Senator Paul Gavan

I thank the witnesses for their presentations. In the spirit of keeping it real, will Ms Zampas discuss the 12 women who go to Britain each day for abortions? I am conscious that no aftercare services are provided in Ireland for those women. Will she speak to us about this topic and the implications for those women who travel each day?

With respect, I find Professor Binchy’s views quite extreme. In cases of rape and incest, does he believe the victims should be forced to continue with their pregnancies? Women are told under pain of criminal sanction that if they take an autonomous decision as to how their own bodies are to be used and opt to abort a foetus, they are then criminalised. Will Professor Binchy list any other area of Irish law where somebody is required to use their body as subsistence for another person under pain of criminal sanction?

Senator Lynn Ruane took the Chair.

Professor William Binchy

In immediate answer to the last question first, manifestly not. It is the nature of pregnancy. In pregnancy there are two lives intimately related to each other. That is the short and rather obvious answer to the first point.

Again, the Senator mentioned it is an extreme position to take the view that every human being has inherent worth that needs equal protection. It is a position worth considering and one I am sure the Senator accepts in every other area of life. I am sure he accepts it about ethnic background, mental and physical capacity and in terms of developmental stages. We do not say that an old person loses their human rights status simply because they are very old. This is a proposition which we should accept as axiomatic.

Senator Ruane said she did not accept the premise. She may disagree with the premise. That is anybody's entitlement. However, to argue for inequality, one has to say it in clear terms that there are inequalities between people. It is an argument that needs justification.

Senator Paul Gavan

To be fair, most people would disagree with Professor Binchy’s definition that human life effectively begins at conception. That is not something with which most people with common sense would agree. For Professor Binchy to equate that with people who have been born, it frankly does not make sense on common sense grounds. It is an extreme position.

Professor Binchy did not answer my other question. Does he believe victims of rape and incest should be forced to continue with their pregnancies?

Professor William Binchy

That is the way the Senator characterised the question. Do I believe it would be right that we should have a ground for abortion based on rape and incest? I do not, first, on the principle I stated there, namely, in those circumstances one has an innocent human being absolutely innocent of the horror of the circumstances of his or her conception.

If one maintains the position of simple respect for human life, then one does not actually countenance the taking of that human life.

From what I understand of it, that is the case. The criminal law plays a major role in creating a chilling factor for women in getting post-abortion care. Women are scared. If a 14-year sentence is looming over a woman who has had an illegal abortion at home in Ireland or abroad and she needs post-abortion care for a complication, she would ask questions.

Many people simply do not know what the law is or what the requirements are. Human rights bodies are clear. Post-abortion care should always be available and doctors should not report women to the police for having illegal abortions when they come in for post-abortion care. Some countries have done that and there has been heavy criticism by the UN Committee against Torture against Chile, where women were seeking post-abortion care and doctors were calling the police, who came to the medical centre.

Senator Paul Gavan

My God.

Chairman

I thank the Senator for his brevity. Deputy McGrath has six minutes.

Deputy Mattie McGrath

I wish to clarify one point. I was called out earlier to make a quorum for the Joint Committee on European Union Affairs, of which I am a member, and I had to stay for some time. That is why there may have been confusion. I apologise to Ms Zampas regarding the misunderstanding and I thank her for coming. I have listened and read carefully what she has said. In all her work as an international human rights lawyer has she ever raised concerns about barbaric practices, like the treatment of babies born alive after botched abortions and left to die alone without receiving any medical attention or loving care as they breathe their last breaths? It is a harrowing image I present, but, sadly, it is a real one. Is Ms Zampas aware – she probably is – that England and Canada are two countries where such abuses routinely arise and have been well documented? Has Ms Zampas ever taken a stand against such horrific abuses? Is it the singular goal of Ms Zampas in this area to push for wider access to abortion? I am deeply concerned at the complete absence of reference to infants born alive after abortions. What exactly are the views of the guests on that? It cannot simply be ignored.

When I was out, people on social media and elsewhere made comments. I got permission from the Chairman to go to a Topical Issue debate. The Dáil is sitting and other committees are sitting. If we leave the room, there are only 12 or 13 present most of the time. People on social media are attacking me for not staying. I got permission from the Chairman to leave. She allowed me in before my time, in fairness to her. That is pretty pedantic and ridiculous.

The guests may be aware of the developments in the United States today, in particular, the passing of the pain-capable unborn child protection law, which would limit abortion to 20 weeks. It is clear that the international situation is not as clear as some would like to make it.

I take offence at Deputy O'Connell – she is back now – for accusing some of us of telling lies. I am sure it is directed at me and some others. If that happened in the Dáil Chamber, it would not be tolerated and would have to be withdrawn. I appeal to her to withdraw that scurrilous remark.

Chairman

Deputy McGrath should direct his questions to the witnesses. That is a matter we can discuss another time, perhaps.

Deputy Mattie McGrath

Does Professor Binchy accept that if the aim of Ireland's abortion ban was to save so-called unborn lives, it is not doing a very good job? Given that ten women a day are leaving the country and at least three others are having abortions in their own bedrooms in this country, the ban is certainly not working.

I have a third question for Professor Binchy. Does he favour forced pregnancy? Does he favour forcing a pregnant woman who does not want to be pregnant to continue with that pregnancy? He said earlier that he does not favour injunctions to prevent women from travelling. It seems to me that he did at one point, when he served as legal adviser to the Pro-Life Amendment Campaign, but he just will not get away with it now. He has said he wants the sources of all claims that are made. During a lecture Professor Binchy gave in the Coombe in 1980, he said:

If we are to allow sympathy for the woman to stop us from regarding abortion as criminal... why should that sympathy simply stop at our shorelines? ... A strong argument can be made that our law should give such effect as it can to the principle that unborn life is entitled to be protected.

He accepted that this would cause a lot of criticism, but he felt there was a strong argument to be made for it. He seems to have changed his mind since then. Is that fair enough?

My fourth question relates to a claim Professor Binchy has made about the Citizens' Assembly's proposal that abortion should be available up to birth. He has suggested that this would lead to abortion with little or no restrictions in place. Has he not been scaremongering like this for a long time? He made similar comments in 1992 in response to the ruling in the X case. He claimed in The Irish Times of 6 March 1992 that the ruling had "introduced an abortion regime of wide-ranging dimensions, beyond any effective control or practical limitation". He went on to say that as a result of the Supreme Court judgment, "those who authorise and carry out abortions in Ireland [will be placed] beyond the reach of criminal law". Nothing could be further from the truth regarding the X case. We have seen how it is practically impossible for a woman to access an abortion by claiming she is suicidal.

In 1992, around the time of the X case, Professor Binchy was asked whether he thinks suicidal women should be allowed to have abortions.

I want to interject and I will allow Ms Zampas and Deputy Rabbitte back in.

Ms Christina Zampas

I also think the Deputy should talk to medical doctors about that specific question.

Chairman

With regard to the time period, for the sake of clarity, I will read from the report. It states:

64% of the Members recommended that the termination of pregnancy without restriction should be lawful. Of the Members who voted on that Ballot:

- 48% have recommended that the termination of pregnancy without restriction should be lawful up to 12 weeks gestation age only.

- 44% have recommended that the termination of pregnancy without restriction should be lawful up to 22 weeks gestation age only.

- 8% have recommended that the termination of pregnancy should be lawful with no restriction to gestational age.

I apologise for interjecting but I wanted to clarify that.

Deputy Anne Rabbitte

No problem. That is fantastic. One of the reasons I asked that question relates to children in care. Last week, Ms Mary O'Toole, senior counsel, appeared before the committee.

She clearly said that a lot of the cases that come before the courts relate to children in care. That is the reason I ask the question about the gestational period because sometimes it might not be possible to work within the timeframe given that there are courts and care workers involved. I wonder about the human rights of adolescents and their points of view. I would welcome the perspective of Ms Zampas on that.

Ms Christina Zampas

The UN Committee on the Rights of the Child has been very clear that adolescents should be involved in the decision-making process regarding abortion and has called for the removal of parental consent requirements. The latter would include guardian consent requirements. Adolescents are an especially vulnerable group because of the stigma not just around abortion but also around adolescent sexuality and what that could mean in terms of the relationship with the family and the parents. There is also the question of their vulnerability in carrying a pregnancy - their physiological vulnerability. Adolescents are at a much higher risk of having something go wrong with the pregnancy and risking serious disability because of it because their bodies are not formed enough to carry a pregnancy. That is a medical fact. I think it is 15 times more likely - I am not sure of the exact number - that something would go wrong.

In light of that, I want to make a comment about Professor Binchy's remark in terms of there being no evidence that adolescents are suicidal when they are pregnant. Actually, it is the opposite. There is evidence to show that adolescents who are pregnant and who do not have access to abortion are suicidal and it is one of the causes of death of pregnant young girls especially in countries with really restrictive abortion laws because of the stigma attached, because of their sexuality and their pregnancy. I just wanted to clarify that.

Professor William Binchy

Perhaps I should respond, very briefly. Members might already have seen the evidence that was given in 2013 by the psychiatrists, whose number included a range of people of entirely different value systems, and they were not of the view that this ground was an appropriate one. I think that is a fair summary of the thrust of the evidence that was given. They are the professionals in the area.

Senator Rónán Mullen

I repeat my apologies. As a result of a family bereavement, I was unable to be here earlier. Professor Binchy is very welcome. I congratulate him on being a voice of sanity and compassion over the years in an increasingly uncaring world. His activity on behalf of people with disabilities, his great work promoting the rule of law and helping the rule of law in Africa stands in perfect consistency with his vision of a society that includes everybody. He has always spoken in terms that really appeal to people of goodwill of all faiths and none and from a purely human rights perspective.

There are two aspects to the question I want to put to Professor Binchy. First, does he agree that truth and fact are increasingly casualties in this debate? Perhaps even here today it might be no harm to pick up on some points that were made when I was listening in to the debate. I think Deputy O'Connell is mistaken. Professor Binchy might clarify but it is my understanding that the Citizens' Assembly made separate recommendations in respect of abortion on the grounds of disability; so-called fatal foetal abnormality was one recommendation but there was an entirely separate recommendation relating to foetal abnormality or foetal anomaly. From her question, I do not think Deputy O'Connell appears to realise that is the case. Clarity is important. My belief is that the Citizens' Assembly put forward separate recommendations. Is that also Professor Binchy's understanding?

Professor William Binchy

It is. The Chair has got the grounds there so perhaps she could advise us.

Chairman

Senator Mullen can continue and I will clarify shortly.

Senator Rónán Mullen

Second, in terms of figures, there appears to have been an attempt to put in issue the idea that Ireland's abortion rates are lower than those in other countries. Let us take Deputy Coppinger's figures in terms of the proportion of drug-induced abortions, and there was reference to at least three others – compared with ten women travelling. That is a tragic situation. Everybody agrees that some abortions have taken place notwithstanding the eighth amendment, but it is a matter of fact that, even allowing for imported drugs, Ireland’s abortion rates are very low. The evidence shows, as a matter of fact when one compares it with other countries, particularly our nearest neighbour, that something has caused people not to opt for abortion in circumstances where individuals in other countries do. Is that not really a matter of fact rather than opinion?

Professor William Binchy

I believe it to be a matter of fact. I am not a sociologist. I have not carried out the empirical tests. That is a matter for somebody who is not, as it were, coming to this issue from a value position to go and do the count. The wider sociological question of the impact of the amendment on a society - the impact of any legal framework on a society - is a highly difficult and subtle thing to actually work out. I would have to say that. Broadly speaking, however, I agree with Senator Mullen, as I think he would agree with me, that the issues do not depend on that fact one way or another.

Chairman

I will interject to clarify the point regarding the two recommendations to which Senator Mullen referred. They relate to circumstances where:

The unborn child has a foetal abnormality that is likely to result in death before or shortly after birth (89%)

The unborn child has a significant foetal abnormality that is not likely to result in death before or shortly after birth (80%)

Chairman

I thank Deputy Daly for the clarification. I thank Ms Zampas and Professor Binchy for their attendance. They have been most helpful to our deliberations. As there is no other business, this meeting of the joint committee is adjourned until 1 p.m. next Wednesday, as discussed earlier. We will meet in private session at 1 p.m. and in public session at 2 p.m. We will address the Citizens' Assembly's recommendation regarding the health of the woman, including that no distinction be drawn between physical and mental health. I thank members and witnesses for their attendance.

The joint committee adjourned at 6.05 p.m. until 1 p.m. on Wednesday, 11 October 2017.

Joint Committee on the Eighth Amendment of the Constitution díospóireacht - Wednesday, 4 Oct 2017

Eighth Amendment of the Constitution: Constitutional Issues Arising from the Citizens Assembly Recommendations

Ms Emily Logan

Professor Siobhán Mullally

Professor Siobhán Mullally

Professor Siobhán Mullally

Professor Siobhán Mullally

Ms Emily Logan

Ms Emily Logan

Ms Emily Logan

Ms Emily Logan

Professor Siobhán Mullally

Professor Siobhán Mullally

Ms Emily Logan

Ms Emily Logan

Ms Emily Logan

Ms Emily Logan

Professor Siobhán Mullally

Ms Emily Logan

Ms Emily Logan

Ms Emily Logan

Ms Emily Logan

Ms Emily Logan

Ms Emily Logan

Professor Siobhán Mullally

Ms Emily Logan

Ms Emily Logan

Professor Siobhán Mullally

Ms Emily Logan

Professor Siobhán Mullally

Ms Emily Logan

Ms Emily Logan

Professor Siobhán Mullally

Professor Siobhán Mullally

Professor Siobhán Mullally

Ms Emily Logan

Professor Siobhán Mullally

Ms Emily Logan

Professor Siobhán Mullally

Professor Siobhán Mullally

Professor Siobhán Mullally

Professor Siobhán Mullally

Professor Siobhán Mullally

Ms Christina Zampas

Professor William Binchy

Professor William Binchy

Professor William Binchy

Ms Christina Zampas

Ms Christina Zampas

Professor William Binchy

Professor William Binchy

Professor William Binchy

Professor William Binchy

Professor William Binchy

Professor William Binchy

Professor William Binchy

Professor William Binchy

Professor William Binchy

Professor William Binchy

Professor William Binchy

Professor William Binchy

Ms Christina Zampas

Ms Christina Zampas

Ms Christina Zampas

Ms Christina Zampas

Ms Christina Zampas

Joint Committee on the Eighth Amendment of the Constitution díospóireacht -
Wednesday, 4 Oct 2017