CARING FOR PREGNANT WOMEN AND UNBORN CHILDREN IN IRELAND

CARING FOR
PREGNANT WOMEN
AND UNBORN
CHILDREN IN IRELAND
IN THE LIGHT OF THE
ABC CASE
A RESPONSE TO THE
EXPERT GROUP REPORT
DUBLIN DECEMBER 2012
A
Response
to
the
Expert
Group
Report
Family
&
Life
Published
by
Family
&
Life
26
Mountjoy
Square
Dublin
1
www.familyandlife.org
www.prolife.ie
www.facebook.com/familyvitae
[email protected]
December
2012
ISBN
1
900493
07
1
©
All
rights
reserved.
2
A
Response
to
the
Expert
Group
Report
Family
&
Life
TABLE
OF
CONTENTS
Introduction
/
Executive
Summary
3
6
The
X
Case
and
Suicide
6
Constitutional
Law
Considerations
10
‐
Frozen
Embryos
10
‐
The
ABC
Case
11
Ireland’s
Obligations
Under
International
Law
15
‐
16
Historical
Context
‐
International
Law
and
Abortion
Medical
Care
of
Pregnant
Women
28
‐
Cancer
in
Pregnancy
30
‐
Cardiac
Conditions
34
36
37
40
A
Compassionate
Response
to
Foetal
Abnormality
40
Adverse
Effects
of
Abortion
on
Women
41
42
44
Appendix
I:
The
Definition
of
“Abortion”
45
Appendix
II:
The
Principle
of
Double
Effect
49
Appendix
III:
Terms
of
Reference
of
the
Expert
Group
51
Appendix
IV:
The
Report
of
the
Expert
Group
on
Abortion
52
Appendix
V:
Dublin
Declaration
on
Maternal
Healthcare
53
Appendix
VI:
International
Law
54
Select
Bibliography
59
Abortion
and
Mental
Health
‐
Abortion,
Pregnancy
and
Suicide
Pregnancy
Resulting
from
Rape
Irish
Women
Seeking
Abortions
Abroad
Conclusion
3
A
Response
to
the
Expert
Group
Report
Family
&
Life
INTRODUCTION
/
EXECUTIVE
SUMMARY
•
Ireland
has
a
distinguished
record
in
protecting
the
right
to
life
of
unborn
human
beings
and
providing
world
class
medical
care
to
pregnant
women
•
The
vast
majority
of
Irish
people
wish
to
see
unborn
human
life
protected
•
Provided
they
are
reassured
that
this
will
not
have
a
deleterious
effect
on
the
medical
care
provided
to
pregnant
women,
all
but
a
tiny
minority
(who
favour,
for
ideological
reasons,
the
availability
of
abortion
on
demand)
are
content
to
see
a
comprehensive
prohibition
on
abortion
in
Ireland
•
The
European
Court
of
Human
Rights,
in
the
case
of
A,B,
and
C
v.
Ireland
in
2010,
did
not
require
Ireland
to
legalise
abortion
•
The
Court
recognised
the
right
of
the
Irish
people
to
determine
for
themselves
the
extent
to
which
they
wish
to
protect
the
unborn.
It
did,
however,
find
that
the
current
Irish
situation
is
unclear.
It
required
the
government
to
put
in
place
procedures
that
are
“effective
and
accessible”.
It
made
no
stipulation
as
to
what
the
legal
status
of
those
procedures
should
be.
•
In
1983
the
Irish
people
voted
to
amend
the
Constitution
to
provide
explicit
protection
for
the
unborn.
As
the
ECHR
acknowledged,
there
is
no
reason
to
believe
that
the
wishes
of
the
Irish
people
in
this
regard
have
significantly
changed
since
then
•
In
the
X
Case
in
1992,
the
Supreme
Court,
without
hearing
any
medical
evidence,
perverted
the
meaning
of
Article
40.3.3
(the
pro‐life
amendment)
to
allow
abortion
where
the
mother
alleges
she
is
suicidal,
and
thwarted
the
clear
intention
of
the
People
in
adopting
the
amendment
•
The
X
Case
imposed
no
time
limits,
and
if
legislated
for
would
effectively
allow
abortion
on
demand
•
The
Government
has
no
democratic
mandate
to
introduce
abortion
in
Ireland
against
the
wishes
of
the
Irish
People
•
A
decision
of
such
magnitude
should
be
referred
to
the
People
in
a
referendum,
in
which
they
should
have
a
clear
option
to
prohibit
direct
procured
abortion
(while
safeguarding
current
medical
practice)1
1
Bunreacht na hEireann guarantees the right of the People to be consulted on major issues:
“All powers of government, legislative, executive and judicial, derive, under God, from the
people, whose right it is to designate the rulers of the State and, in final appeal, to decide all
4
A
Response
to
the
Expert
Group
Report
Family
&
Life
•
Existing
medical
practice
in
Irish
hospitals
ensures
that
pregnant
women
receive
the
medical
care
they
need
•
Necessary
medical
interventions
which
may,
as
a
foreseeable
but
unintended
side
effect,
result
in
the
death
of
the
unborn,
are
not
affected
by
the
prohibition
of
direct
abortion
•
Pregnant
women
are
less
likely
than
otherwise
comparable
non‐
pregnant
women
to
commit
suicide—pregnancy
has
a
protective
effect
against
suicide
•
A
growing
body
of
scientific
research
demonstrates
that
many
women
who
undergo
abortion
suffer
a
range
of
psychiatric
problems
as
a
result
•
Rape
is
an
appalling
crime,
but
it
does
not
justify
abortion.
The
rapist
should
be
punished
to
the
full
extent
of
the
law,
and
the
victim
should
receive
every
support
that
society
can
offer.
Killing
an
innocent
child
merely
adds
another
layer
of
injustice
and
exposes
the
rape
victim
to
the
harms
associated
with
abortion
•
Many
women
who
become
pregnant
as
a
result
of
rape
in
jurisdictions
where
abortion
is
freely
available
choose
to
continue
with
the
pregnancy.
Some
give
the
child
up
for
adoption,
others
choose
to
raise
the
child
themselves
•
Perinatal
hospice
care
should
be
made
available
for
families
whose
unborn
baby
is
diagnosed
with
a
condition
likely
to
cause
death
shortly
after
birth
•
Every
year,
for
the
past
ten
years,
the
number
of
Irish
women
having
abortions
in
Britain
has
declined
•
Official
British
statistics
indicate
that
the
vast
majority
of
these
abortions
are
for
“social”
reasons.
There
is
no
evidence
that
any
are
performed
on
medical
grounds
•
Every
effort
should
be
made
to
ensure
that
no
woman
resorts
to
abortion
because
she
feels
she
has
no
choice,
and
initiatives
to
reduce
the
number
of
Irish
women
seeking
abortion
abroad
should
continue
questions
of
national
policy,
according
to
the
requirements
of
the
common
good.”
(Article
6.1).
5
A
Response
to
the
Expert
Group
Report
Family
&
Life
HISTORICAL
CONTEXT
Sections
58
and
59
of
the
Offences
Against
the
Person
Act,
1861,
make
it
a
criminal
offence
intentionally
to
procure
an
abortion.
This
did
not
prevent
the
English
courts
from
determining
that
there
are
circumstances
where
an
abortion
may
be
lawful
(Rex
v.
Bourne
[1939]
1
KB
687).
In
1967,
the
Parliament
of
the
United
Kingdom
enacted
the
Abortion
Act,
which
provided
a
defence
against
a
criminal
charge
of
procuring
an
abortion
brought
under
the
1861
act.
In
1973,
the
Supreme
Court
of
the
United
States
interpreted
the
US
Constitution
as
providing
a
right
to
abortion
within
the
right
to
privacy
(Roe
v.
Wade,
410
US
113,
and
Doe
v.
Bolton,
410
US
179).
Concerned
that
either
the
Oireachtas
or
the
Irish
Supreme
Court
would
similarly
legalise
abortion
in
Ireland,
some
of
the
country’s
leading
obstetricians
came
together
in
1981
to
form
the
Pro
Life
Amendment
Campaign.
These
included
Drs
Julia
Vaughan,
Consultant
Obstetrician
and
Gynaecologist;
Eamon
de
Valera,
Professor
of
Obstetrics
and
Gynaecology,
University
College,
Dublin;
Prof
Kevin
Feeney,
the
Coombe
Women’s
Hospital;
Prof
Arthur
Barry,
National
Maternity
Hospital,
Holles
Street;
Dr
Dermot
MacDonald,
National
Maternity
Hospital;
John
Bonnar,
Professor
of
Obstetrics
and
Gynaecology,
Trinity
College,
Dublin;
Dominic
O’Doherty,
Eamon
O’Dwyer,
Professor
of
Obstetrics
and
Gynaecology,
University
College,
Galway;
David
Jenkins,
Professor
of
Obstetrics
and
Gynaecology,
University
College,
Cork;
Richard
Wade,
T
D
Hanratty,
St
James’s
Hospital;
Niall
Duignan,
Master
of
the
Coombe
Hospital;
Stanley
Hewitt,
President
of
the
Institute
of
Obstetricians
and
Gynaecologists;
and
Kieran
O’Driscoll,
Professor
of
Obstetrics
and
Gynaecology,
University
College,
Dublin.
The
efforts
of
the
Pro
Life
Amendment
Campaign
led
to
the
formulation
of
the
Eighth
Amendment
to
the
Irish
Constitution,
which
was
adopted
by
the
People
(67%
‐
33%)
on
September
7,
1983.
This
became
Article
40.3.3
of
the
Constitution,
which
states:
“The
State
acknowledges
the
right
to
life
of
the
unborn
and,
with
due
regard
to
the
equal
right
to
life
of
the
mother,
guarantees
in
its
laws
to
respect,
and,
as
far
as
practicable,
by
its
laws
to
defend
and
vindicate
that
right.”
THE
X
CASE
AND
SUICIDE
In
1992
the
Supreme
Court,
in
the
Attorney
General
v.
X
and
Others
[1992]
1
IR
1,
(hereinafter
the
X
Case),
sowed
confusion
when
it
interpreted
Article
40.3.3
to
mean
that,
if
it
were
established
as
a
matter
of
probability
that
there
was
a
real
and
substantial
risk
to
a
woman’s
life,
as
opposed
to
her
health,
which
could
only
be
averted
by
abortion,
such
an
abortion
would
be
lawful.
The
Court
accepted
that
a
threat
of
suicide
on
the
part
of
the
mother
constituted
such
a
real
and
substantial
risk.
In
doing
so
it
introduced
a
6
A
Response
to
the
Expert
Group
Report
Family
&
Life
principle
which
allows
for
the
direct
targeting
of
the
life
of
the
unborn,
interpreting
Article
40.3.3
in
a
manner
contrary
to
the
understanding
of
all
who
had
debated
it
prior
to
its
adoption
in
1983.
In
a
hastily
formulated
decision,
reached
under
the
glare
of
intense
publicity,
and
without
the
benefit
of
expert
medical
evidence,
the
X
Case
judgement
made
two
major
changes
to
Irish
law.
It
accepted
that
Article
40.3.3
permits
some
direct
induced
abortions.
Secondly,
it
accepted
that
a
woman’s
stated
threat
to
kill
herself
constitutes
a
“real
and
substantial
risk”
to
her
life.
The
lack
of
expert
medical
evidence
on
which
to
base
such
a
momentous
change
is
remarkable.
The
sole
testimony
to
Miss
X’s
suicidal
state
was
a
clinical
psychologist
and
counsellor,
Fred
Lowe,
who
offered
oral
evidence
drawn
from
his
brief
meetings
with
Miss
X,
her
parents,
the
Gardaí
and
an
anonymous
doctor.
At
no
point
in
the
proceedings
did
counsel
for
the
Attorney
General
challenge
his
evidence
in
the
High
Court
or
the
Supreme
Court.
There
were
no
medical
witnesses
called
to
question
his
conclusions
and
his
proposed
remedy,
no
amicus
curiae
or
guardian
ad
litem
to
advocate
for
the
rights
of
the
unborn
child.
Neither
the
Court
nor
the
Attorney
General’s
legal
team
saw
fit
to
call
for
a
medical
expert,
either
a
psychiatrist
or
an
obstetrician,
to
examine
and
challenge
Mr
Lowe’s
assessment
of
Miss
X’s
wish
to
kill
herself.
His
unargued
and
uncontested
evidence
constituted
“the
facts”
for
the
four
judges’
conclusion
that
there
existed
a
“real
and
substantial
risk
to
her
life”.2
The
lack
of
expert
medical
evidence
on
which
to
base
such
a
momentous
change
is
remarkable
Neither
the
State
nor
the
judges
looked
for
a
psychiatrist’s
opinion
about
the
threat
to
suicide—how
to
assess
such
a
threat,
or
how
to
counter
it,
or
how
to
identify
serious
mental
illness
as
its
cause.
Mr
Lowe
admitted
that
he
was
not
a
“medical
practitioner”
and
was
not
competent
to
give
a
medical
opinion
that
Miss
X
would
probably
kill
herself,
if
she
was
not
granted
an
abortion.
Notwithstanding,
he
gave
his
opinion
that
she
would
do
so,
and
his
opinion
was
accepted
as
conclusive.
Only
the
dissenting
Justice
Anthony
Hederman
called
attention
to
the
basic
duty
of
the
State
to
defend
the
right
to
life
of
all,
born
and
unborn.
He
pointed
out
that
the
Court
had
been
offered
“a
remarkable
paucity
of
evidence”,
since
it
had
neither
seen
nor
heard
the
mother
of
the
unborn
child.
However
extreme
Miss
X’s
aversion
to
her
pregnancy,
he
noted,
an
unwanted
pregnancy
is
not
a
justification
for
an
abortion,
as
the
court
decided
in
SPUC
v.
Grogan
([1989]
IR
753).
(See
“Abortion,
Pregnancy
and
Suicide”
in
Medical
Care
of
Pregnant
Women
in
Ireland.)
The
decision
of
the
Supreme
Court
in
the
X
Case
has
the
potential
to
lead
to
de
facto
abortion
on
demand.
The
Court
accepted
that
an
asserted
intention
to
commit
suicide
would
be
a
“real
and
substantial
risk”,
and
gave
no
2
Miss
X’s
obstetrician,
Dr
Peter
McKenna,
Master
of
the
Rotunda
Hospital,
expressed
reservations
about
the
decision
in
his
testimony
to
the
All
Party
Committee
on
the
Constitution
in
2000.
7
A
Response
to
the
Expert
Group
Report
Family
&
Life
indication
of
any
time
limits.
This
was
recognised
by
the
government
which
sought,
in
the
immediate
aftermath
of
the
X
Case
decision,
to
remove
the
suicide
ground
by
proposing
an
amendment
to
Article
40.3.3.
Ireland’s
Constitution,
as
interpreted
by
the
Supreme
Court
in
the
X
case,
permits
abortion,
and
this
has
been
used
in
a
small
number
of
cases
by
the
health
authorities.
In
all
these
cases,
the
permitted
abortions
took
place
in
the
UK.
There
is
no
evidence
to
suggest
that
since
1992
abortions
have
been
performed
in
Irish
hospitals
and
clinics.
In
the
immediate
aftermath
of
the
X
Case,
the
government
proposed
three
constitutional
amendments,
on
the
so‐called
substantive
issue,
on
the
right
to
travel
abroad
for
abortion,
and
on
the
right
to
information
on
abortion
abroad.
The
travel
and
information
amendments
were
approved
by
the
People.
The
wording
of
the
amendment
on
the
substantive
issue,
which
would
have
modified
the
effects
of
the
X
Case
decision
by
removing
suicide
as
grounds
for
lawful
termination
of
pregnancy
proved
controversial.
Many
pro‐life
voters
objected
to
it
on
the
basis
that
it
implied
there
are
medical
conditions
in
which
direct
abortion
is
necessary
to
save
a
mother’s
life.
The
amendment
was
thus
rejected
by
a
combination
of
pro‐life
and
pro‐abortion
voters.
In
2002,
following
a
lengthy
and
exhaustive
process,
involving
the
preparation
of
a
Green
Paper,
public
consultations,
and
the
consideration
of
written
submissions
and
oral
testimony
from
many
medical
experts
and
other
interested
parties,
a
further
proposal
was
put
to
the
People
with
a
view
to
removing
the
suicide
grounds
from
the
X
Case
holding.
The
2002
proposal
would
have
given
constitutional
protection
to
a
Protection
of
Human
Life
in
Pregnancy
Act
which
would,
inter
alia,
have:
•
•
•
Defined
abortion
as
the
destruction
of
unborn
human
life
after
implantation
in
the
womb.
Explicitly
permitted
medical
interventions
necessary
to
save
the
mother’s
life,
even
where
the
death
of
the
unborn
was
an
inevitable
and
foreseeable
consequence.
Required
that
in
a
crisis
every
effort
must
be
made
to
save
the
life
of
the
baby
and
that
a
detailed
record
be
kept
of
the
medical
procedures
employed.
Made
abortion
an
offence
punishable
by
up
to
twelve
years
in
prison.
•
The
proposed
amendment
was
supported
by
the
main
pro‐life
groups
and
the
Catholic
Bishops.
It
was
opposed
by
pro‐abortion
groups
and
by
a
minority
of
pro‐lifers
who
claimed
that
it
would
exclude
from
constitutional
protection
pre‐implantation
human
embryos.
(In
fact
the
wording
of
the
Bill
strengthened
the
claim
that
pre‐implanted
embryos
enjoyed
constitutional
protection.)
This
opposition
led
to
confusion
on
the
part
of
many
pro‐life
voters.
This
confusion,
combined
with
bad
weather
on
the
day
of
the
vote,
resulted
in
a
low
turnout
(under
43
per
cent).
The
amendment
was
rejected
8
A
Response
to
the
Expert
Group
Report
Family
&
Life
by
the
narrowest
of
margins
(50.42
to
49.58
per
cent).
Had
the
2002
legislation
passed,
the
ECHR
judgement
in
ABC
v.
Ireland
would
have
been
impossible.
9
A
Response
to
the
Expert
Group
Report
Family
&
Life
CONSTITUTIONAL
LAW
CONSIDERATIONS
THE
FROZEN
EMBRYOS
CASE
While
the
Supreme
Court
ruled
in
December
2009
in
R
v.
R,
(the
“Frozen
Embryos”
case),
that
unimplanted
human
embryos
do
not
come
within
the
scope
of
Article
40.3.3,
the
justices
noted,
nonetheless,
that
the
Constitution
accords
significant
respect
to
unborn
human
life,
even
beyond
that
which
is
explicitly
stated.
Chief
Justice
Murray
pointed
out
that
“Outside
the
womb,
[human
embryos]
have
the
same
qualities
as
they
would
have
in
the
womb”.
The
Court
determined
that
the
intention
of
the
People
in
adopting
the
Eighth
Amendment
was
to
prevent
the
legalisation
of
abortion
in
Ireland,
either
by
the
Oireachtas
or
the
Courts,
and
that
their
intention
did
not
extend
to
the
questions
arising
in
relation
to
IVF
embryos.
In
the
same
opinion,
the
Chief
Justice
stressed
that,
even
if
not
covered
by
Article
40.3.3,
human
embryos
are
deserving
of
protection.
“I
think
it
can
be
said
that
the
human
embryo
is
generally
accepted
as
having
moral
qualities
and
a
moral
status.
However
else
it
may
be
characterised,
the
fertilisation
of
the
ovum
is
the
first
step
in
procreation
and
contains
within
it
the
potential,
at
least,
for
life.
It
has
present
in
it
all
the
genetic
material
for
the
formation
of
life.
Its
creation
and
use
cannot
be
divorced
from
our
concepts
of
human
dignity.
The
Council
of
Europe
Convention
on
Human
Rights
and
Bio
Medicine,
with
a
view
to,
inter
alia,
preventing
the
misuse
of
biology
in
medicine
which
may
lead
to
acts
endangering
human
dignity,
prohibits
in
Article
18
the
creation
of
human
embryos
for
research
purposes.
Article
3
of
the
Charter
of
Fundamental
Rights
of
the
European
Union
prohibits
the
use
of
embryos
for
the
cloning
of
human
beings,
as
does
a
declaration
of
the
United
Nations.
Such
provisions
and
the
fact
that
many
countries
regulate
and
protect
the
manner
and
circumstances
in
which
in
vitro
embryos
may
be
created
and
dealt
with,
reflect
the
recognised
moral
status
of
embryos
as
being
inextricably
associated
with
human
dignity.
There
is
inevitably
within
the
ambit
of
that
moral
appreciation
of
the
embryo
much
debate
particularly
concerning
the
parameters
of
regulatory
measures
and
what
should
be
permitted
and
what
should
be
prohibited.”
Mrs
Justice
Denham,
in
a
lengthy
opinion,
was
clear
that
the
mischief
Article
40.3.3
was
intended
to
address
was
abortion
and
that
the
statutory
provisions
it
was
intended
to
copperfasten
were
those
prohibiting
the
procuring
of
an
unlawful
miscarriage.
Like
the
Chief
Justice,
Mr
Justice
Adrian
Hardiman
laid
considerable
stress
on
the
dignity
of
human
embryos,
regardless
of
whether
they
are
covered
by
Article
40.3.3.
“[T]he
fact
that
the
embryos
in
question
in
the
present
case
are
not
within
the
relevant
sub‐Article
of
the
Constitution,
while
it
is
fatal
to
10
A
Response
to
the
Expert
Group
Report
Family
&
Life
litigation
founded
on
the
theory
which
has
informed
this
action,
does
not
of
course
mean
that
such
embryos
should
not
be
treated
with
respect
as
entities
having
the
potential
to
become
a
life
in
being.
In
the
course
of
the
argument
on
this
appeal,
the
court
heard
of
various
legal
provisions
in
other
countries
based
precisely
on
such
respect
for
the
embryo:
it
appears
that
a
number
of
European
countries
severely
limit
the
number
of
fertilised
embryos
that
can
be
produced
in
the
course
of
IVF
treatment.…[T]he
fact
that
difficulties
are
raised
does
not
absolve
the
legislature
from
the
obligation
to
consider
the
degree
of
respect
due
to
fertilised
embryos
and
to
act
upon
such
consideration
‘by
its
laws’.”
Mr
Justice
Hugh
Geoghegan,
although
perhaps
the
most
liberal
member
of
the
Court
at
that
time,
insisted
“I
am
in
agreement
with
the
often
expressed
view
that
spare
embryos,
being
lives
or
at
least
potential
lives,
ought
to
be
treated
with
respect.
The
absence
of
a
statute
or
statutory
regulations
indicating
how
that
respect
should
be
given
is
undesirable
and
arguably
contrary
to
the
spirit
of
the
Constitution.”
In
a
brief
opinion,
Mr
Justice
Nial
Fennelly
stated
that
“I
do
not
think
that
the
constitutional
provision
should
be
considered
only
as
being
intended
to
reinforce
the
effect
of
section
58
of
the
Offences
against
the
Person
Act,
1861
[which
makes
abortion
a
crime].
The
people
in
adopting
the
Eighth
Amendment
to
the
Constitution
employed
distinct,
new
and
independent
language….
I
agree
…
that
the
frozen
embryo
is
entitled
to
respect.
This
is
the
least
that
can
be
said.
Arguably
there
may
be
a
constitutional
obligation
on
the
State
to
give
concrete
form
to
that
respect.
In
default
of
any
action
by
the
executive
and
legislative
organs
of
the
State,
it
may
be
open
to
the
courts
in
a
future
case
to
consider
whether
an
embryo
enjoys
constitutional
protection
under
other
provisions
of
the
Constitution.”
Incidentally,
a
similar
possibility
was
hinted
at
by
Justice
Geoghegan:
“If
there
are
constitutional
aspects,
they
do
not
arise
pursuant
to
the
particular
provision
in
the
Constitution
relied
on
in
this
case”.
THE
ABC
CASE
On
December
16,
2010,
the
European
Court
of
Human
Rights
(ECHR)
handed
down
its
judgement
in
the
case
of
A,
B,
and
C
v.
Ireland.
This
was
a
case
brought
by
three
women
who
claimed
that
Ireland
had
infringed
their
rights
by
not
making
abortion
available
to
them,
on
various
grounds.
A
was
unemployed
and
living
in
poverty
when
she
became
pregnant.
She
was
an
alcoholic
and
her
four
existing
children
were
all
in
foster
care.
She
travelled
to
Britain
for
an
abortion
without
telling
her
family.
On
her
way
home
she
began
bleeding
profusely,
was
taken
to
hospital
for
a
dilation
and
curettage
and
suffered
pain,
nausea
and
bleeding
for
weeks
thereafter
but
did
not
seek
further
medical
advice.
B
had
attempted
to
avoid
pregnancy
by
taking
the
“morning
after”
pill,
unsuccessfully.
She
claimed
that
two
different
doctors
advised
her
there
was
11
Chief
Justice
Murray
pointed
out
that
“Outside
the
womb,
[human
embryos]
have
the
same
qualities
as
they
would
have
in
the
womb…
I
think
it
can
be
said
that
the
human
embryo
is
generally
accepted
as
having
moral
qualities
and
a
moral
status.”
A
Response
to
the
Expert
Group
Report
Family
&
Life
a
risk
of
an
ectopic
pregnancy.
Despite
establishing
that
her
pregnancy
was
not
ectopic,
she
travelled
to
Britain
for
an
abortion.
The
abortion
clinic
advised
her
to
lie
to
her
doctor
in
Ireland,
saying
that
she
had
had
a
miscarriage.
Two
weeks
after
returning
from
Britain
she
began
to
start
passing
blood
clots.
Rather
than
attend
her
regular
GP,
she
turned
to
a
clinic
affiliated
to
the
British
abortion
clinic
for
medical
advice.
C
had
been
undergoing
chemotherapy
for
cancer
for
3
years.
She
became
pregnant
while
the
cancer
was
in
remission.
While
consulting
her
general
practitioner
on
the
impact
of
the
pregnancy
on
her
health,
she
alleged
that
she
received
insufficient
information
due
to
the
“chilling
effect”
of
the
Irish
legal
framework.
Based
on
her
research
on
the
internet,
she
decided
she
was
unsure
about
the
risks,
and
decided
to
go
to
Britain
for
an
abortion.
She
suffered
prolonged
bleeding
and
infection
after
an
incomplete
abortion.
She
alleged
doctors
provided
inadequate
medical
care,
and
her
general
practitioner
failed
to
refer
to
the
fact
after
subsequent
visits
that
she
was
no
longer
visibly
pregnant.
The
ECHR
rejected
the
claims
of
the
first
two
plaintiffs,
A
and
B,
but
found
in
favour
of
the
third,
Ms
C.
It
failed,
in
the
case
of
this
successful
plaintiff,
(like
the
Irish
Supreme
Court
in
the
X
Case)
to
hear
any
medical
evidence.
Her
claims
regarding
the
facts
of
the
case
were
accepted
at
face
value
without
corroboration.
The
ECHR
decision
in
this
case
has
given
rise
to
a
good
deal
of
confusion
regarding
its
implications
for
Ireland’s
law
on
abortion.
In
this
respect,
a
number
of
important
points
need
to
be
borne
in
mind.
Firstly,
the
Court
did
not
find
fault
with
Ireland’s
law
on
abortion,
or
that
a
member
state
would
seek
to
prohibit
abortion
entirely.
In
fact,
the
Court
recognised
that
“the
protection
in
Ireland
of
the
right
to
life
of
the
unborn”
is
a
“legitimate
aim”
of
Irish
law.
It
recognised
that
Ireland’s
prohibition
of
abortion
is
“based
on
profound
moral
values
concerning
the
nature
of
life
which
were
reflected
in
the
stance
of
the
majority
of
the
Irish
people
against
abortion
during
the
1983
referendum
and
which
have
not
been
demonstrated
to
have
relevantly
changed
since
then”.
The
Court
dismissed
the
claims
of
plaintiffs
A
and
B
that
their
rights
were
infringed
by
the
fact
that
they
could
not
lawfully
obtain
abortions
in
Ireland
on
grounds
of
health
and
wellbeing.
Ireland
is
entitled
to
a
“broad
margin
of
appreciation”
in
deciding
how
to
balance
the
rights
of
the
unborn
child
and
those
of
the
expectant
mother.
This
margin
of
appreciation
is
not
narrowed
by
the
fact
that
most
Council
of
Europe
member
states
have
more
permissive
abortion
laws.
The
Court
determined
that
Irish
law
“struck
a
fair
balance
between
the
right
of
the
first
and
second
applicants
to
respect
for
their
private
lives
and
the
rights
invoked
on
behalf
of
the
unborn.”
The
Court
also
dismissed
the
Irish
government’s
strange
contention
that
A
and
B
might
have
gained
approval
for
abortions
in
the
domestic
courts.
12
A
Response
to
the
Expert
Group
Report
Family
&
Life
The
Court
also
stated
explicitly
that
“Article
8
[of
the
European
Convention
on
Human
Rights]
cannot
...
be
interpreted
as
conferring
a
right
to
abortion”.
The
case
made
by
the
successful
plaintiff,
Ms
C,
was
unsubstantiated
and
unsupported
by
any
medical
evidence
for
her
claim
that
her
pregnancy
endangered
her
life.
She
was,
as
she
conceded,
able
to
avail
of
medical
care
in
Ireland
subsequent
to
her
abortion.
The
Court
acknowledged
the
finding
of
the
1999
Green
Paper
on
Abortion
that
“there
was
no
medical
evidence
to
suggest
that
doctors
in
Ireland
did
not
treat
women
with
cancer
or
other
illnesses
on
the
grounds
that
the
treatment
would
damage
the
unborn,”
and
the
testimony
of
the
Chairman
of
the
Institute
of
Obstetricians
and
Gynaecologists
in
1999
that
“where
there
is
a
direct
physical
threat
to
the
life
of
the
pregnant
mother,
we
will
intervene
always.”
The
legal
action
of
the
three
women
was
backed
by
major
Irish
and
international
abortion
advocates.
In
addition
to
the
Irish
Family
Planning
Association
(an
affiliate
of
the
International
Planned
Parenthood
Federation),
which
funded
the
litigation,
Doctors
for
Choice
(Ireland),
the
British
Pregnancy
Advisory
Service
(BPAS),
the
Center
for
Reproductive
Rights
and
the
International
Reproductive
and
Sexual
Health
Law
Programme,
all
submitted
observations
to
the
Court.
Some
of
their
submissions
to
the
court
were
utterly
ludicrous,
including
the
claim
that
“concealment
of
pregnancy
and
the
abandonment
of
newborns
were
not
unusual
in
Ireland.”
What
the
Court
found
was
that
C’s
rights
were
infringed
by
the
fact
that
she
was
unable
to
establish
whether
she
qualified
for
a
legal
abortion
in
Ireland.
Since
Ireland’s
Constitution
(as
interpreted
in
X)
provides
a
right
to
abortion,
the
ECHR
reasoned,
Irish
laws
must
provide
an
effective
way
to
secure
that
right.
The
Court
did
not,
in
any
way,
preclude
Ireland
from
reversing
the
effects
of
the
X
Case
judgement,
provided
only
that
clarity
is
achieved.
The
problem,
basically,
has
its
roots
in
that
seriously
flawed
judgement
of
1992.
The
principal
reason
there
is
no
legislation
implementing
the
X
case
judgement
is
that
it
is
widely
recognised
that
it
would
be
impossible
to
draft
such
legislation
without
permitting
abortion
in
wide
circumstances
that
would
be
unacceptable
to
a
substantial
majority
of
the
Irish
people.
The
X
Case
provided
no
gestational
time
limit
for
abortion
and,
by
recognising
a
threat
of
suicide
as
grounds
for
abortion,
opened
the
possibility,
in
effect,
of
abortion
on
demand
up
to
birth.
Recognising
the
impossibility
of
reconciling
the
X
Case
decision
with
the
clearly
stated
desire
of
the
Irish
People
to
provide
meaningful
protection
to
the
unborn,
the
Irish
government
attempted
in
1992,
and
again
in
2002,
to
resolve
the
issue
by
way
of
constitutional
amendment.
For
various
reasons,
both
attempts
were
unsuccessful.
In
the
absence
of
a
revisiting
of
the
X
Case
judgement
by
the
Supreme
Court,
the
only
means
whereby
this
problem
can
be
resolved
is
a
further
amendment
of
the
Irish
Constitution
that
would
allow
for
legislation
clarifying
the
circumstances
in
which
doctors
can
intervene
to
save
the
life
of
13
The
Court
did
not
find
fault
with
Ireland’s
law
on
abortion,
or
that
a
member
state
would
seek
to
prohibit
abortion
entirely.
In
fact,
the
Court
recognised
that
“the
protection
in
Ireland
of
the
right
to
life
of
the
unborn”
is
a
“legitimate
aim”
of
Irish
law.
A
Response
to
the
Expert
Group
Report
Family
&
Life
a
pregnant
woman.
If
the
government
believes
what
it
argued
in
the
ABC
Case,
that
the
ban
on
abortion
is
“based
on
profound
moral
values
deeply
embedded
in
the
fabric
of
society
in
Ireland”,
then
it
must
act
to
copperfasten
current
medical
practice
which
ensures
that
essential
medical
treatment
is
provided
to
all
women
in
Ireland.
Medical
interventions
necessary
to
save
a
mother’s
life,
even
if
the
life
of
her
unborn
child
is
unintentionally
lost,
are
(despite
isolated
claims
to
the
contrary)
generally
assumed
to
be
legal.
In
any
case,
they
are
available
to
any
woman
who
needs
them.
The
deliberate
killing
of
the
unborn,
however,
must
remain
a
crime.
The
legal
action
of
the
three
women
was
backed
by
major
Irish
and
international
abortion
advocates.
14
A
Response
to
the
Expert
Group
Report
Family
&
Life
IRELAND’S
OBLIGATIONS
UNDER
INTERNATIONAL
LAW
There
is
no
recognised
international
right
to
abortion.
No
international
human
rights
treaty
mentions
abortion,
nor
is
there
any
customary
norm
of
international
law
that
prohibits
a
country
from
restricting
and
criminalising
abortion.3
Contrary
to
claims
by
some
UN
experts
or
treaty
bodies,
Ireland
is
under
no
international
obligation
to
change
its
Constitution
or
existing
laws
in
the
area
of
abortion.
As
authoritative
interpretations
of
what
international
treaties
mean
can
only
be
made
by
States
Parties
to
a
treaty
collectively,
treaty
bodies
that
seek
to
pressure
Ireland
to
change
its
abortion
laws
act
in
an
ultra
vires
manner.
Ireland’s
Constitutional
Provisions
relating
to
the
Right
to
Life
of
the
Unborn
and
International
Law
Article
40
(3)
of
the
Constitution
of
Ireland
clearly
affirms
the
right
to
life
of
the
unborn
child:
3°
The
State
acknowledges
the
right
to
life
of
the
unborn
and,
with
due
regard
to
the
equal
right
to
life
of
the
mother,
guarantees
in
its
laws
to
respect,
and,
as
far
as
practicable,
by
its
laws
to
defend
and
vindicate
that
right.
Article
29
of
the
Constitution
of
Ireland
lays
out
the
Republic’s
commitments
in
the
area
of
international
relations.
The
paragraphs
of
this
article
that
are
pertinent
to
a
discussion
of
Ireland’s
obligations
vis
à
vis
international
law
in
this
area
are:
5.
1°
Every
international
agreement
to
which
the
State
becomes
a
party
shall
be
laid
before
Dáil
Éireann.
2°
The
State
shall
not
be
bound
by
an
international
agreement
involving
a
charge
upon
public
funds
unless
the
terms
of
the
agreement
shall
have
been
approved
by
Dáil
Éireann.
3°
This
section
shall
not
apply
to
agreements
or
conventions
of
a
technical
and
administrative
character.
6°
No
international
agreement
shall
be
part
of
the
domestic
law
of
the
State
save
as
may
be
determined
by
the
Oireachtas.
The
Constitution
of
Ireland
provides
for
international
agreements
to
be
binding
following
approval
by
Dáil
Éireann
and
incorporation
into
Irish
law
via
determination
by
the
Oireachtas.
3
See
generally
The
San
Jose
Articles:
Abortion
and
the
Unborn
Child
in
International
Law
(an
expert
statement
on
this
issue),
available
at
http://www.sanjosearticles.com/;
Tozzi,
P.,
“International
Law
and
the
Right
to
Abortion”,
International
Organizations
Law
Group,
available
at
http://www.c‐fam.org/docLib/20100420_Intern._Law_FINAL.pdf
15
A
Response
to
the
Expert
Group
Report
Family
&
Life
INTERNATIONAL
LAW
AND
ABORTION
There
are
a
number
of
major
international
human
rights
treaties
that
have
been
ratified
by
Ireland
that
create
binding
obligations
for
the
government
and
corresponding
rights
for
the
citizens
of
the
country.4
Treaties
are
one
of
the
two
sources
of
international
law,
the
second
source
being
that
of
custom.
A.
Vienna
Convention
on
the
Law
of
Treaties
Before
beginning
the
process
of
interpreting
international
law
in
this
area,
one
must
observe
the
rules
of
treaty
interpretation,
as
developed
by
the
Vienna
Convention
on
the
Law
of
Treaties
(VCLT).
The
primary
rule
of
interpretation
of
a
treaty
is
the
“ordinary
meaning
rule”
of
VCLT
article
31
(1):
A
treaty
shall
be
interpreted
in
good
faith
in
accordance
with
the
ordinary
meaning
to
be
given
to
the
terms
of
the
treaty
in
their
context
and
in
light
of
its
object
or
purpose.5
The
VCLT
makes
clear
that
where
an
interpretation
of
the
text
is
reached
under
the
ordinary
meaning
rule,
legislative
records
are
to
be
used
only
to
confirm
that
reading.
Preparatory
work
or
legislative
history
is
only
to
be
used
to
interpret
the
meaning
of
a
text
where
it
is
impossible
to
arrive
at
an
interpretation
under
the
ordinary
meaning
rule.6
B.
Universal
Declaration
of
Human
Rights
The
Universal
Declaration
of
Human
Rights
(UDHR)
is
the
foundational
document
for
international
human
rights
law.
It
was
adopted
in
1948,
but
was
codified
into
law
with
the
adoption
of
the
International
Covenant
on
Civil
and
Political
Rights
(ICCPR)
and
the
International
Covenant
on
Economic,
Social,
and
Cultural
Rights
(ICESCR)7.
The
UDHR
is
only
a
declaratory
document,
which
according
to
its
preamble,
provides
“a
common
understanding”
of
the
human
rights
that
Member
States
pledged
to
promote
and
protect
in
the
UN
Charter.
While
the
UDHR
is
not
a
binding
treaty,
some
of
its
provisions
are
widely
accepted
as
being
part
of
customary
international
law,
while
many
are
not.
While
legal
commentators
differ
on
how
many
of
the
provisions
of
the
UDHR
should
be
considered
customary
international
law,
there
is
a
broad
consensus
that
at
least
the
following
prohibitions
in
the
UDHR
(and
their
implicated
rights)
are
part
of
customary
international
law:
genocide;
slavery
or
the
slave
trade;
summary
4
These
international
treaties
include
the
International
Covenant
on
Civil
and
Political
Rights
(ICCPR),
International
Covenant
on
Economic,
Social,
and
Cultural
Rights
(ICESCR),
Convention
on
the
Elimination
of
Discrimination
Against
Women
(CEDAW),
Convention
on
the
Rights
of
the
Child
(CRC),
and
the
Convention
Against
Torture
and
Other
Cruel,
Inhuman
or
Degrading
Treatment
or
Punishment.
5
Vienna
Convention
on
the
Law
of
Treaties,
1155
UNTS
331
(1969).
6
See
VCLT
article
32.
7
Both
the
ICCPR
and
the
ICESCR
were
adopted
by
the
United
Nations
General
Assembly
in
1966.
The
ICCPR
and
ICESCR
each
entered
into
force
in
1976.
16
A
Response
to
the
Expert
Group
Report
Family
&
Life
execution;
disappearance;
torture
or
cruel,
inhuman,
or
degrading
treatment
or
punishment;
prolonged
arbitrary
detention;
and
systematic
racial
discrimination.
8
The
very
first
line
of
the
preamble
of
the
UDHR
states
that:
recognition
of
the
inherent
dignity
and
of
the
equal
and
inalienable
rights
of
all
members
of
the
human
family
is
the
foundation
of
freedom,
justice
and
peace
in
the
world
Additionally,
Article
6
of
the
UDHR
states,
“Everyone
has
the
right
to
recognition
everywhere
as
a
person
before
the
law.”
A
sensible,
good
faith
interpretation
of
these
passages
would
be
that
all
members
of
the
human
family
(in
other
words,
all
human
beings,
including
unborn
children)
have
equal
and
inalienable
rights,
which
include
the
right
to
life.
In
fact,
this
is
precisely
the
conception
of
the
American
Convention
on
Human
Rights
(ADHR),
which
was
adopted
just
before
the
UDHR
and
was
very
influential
on
its
drafting.
Article
6
of
the
ADHR
provides
for
the
Right
to
Life,
and
states,
“[t]his
right
shall
be
protected
by
law
and,
in
general,
from
the
moment
of
conception.”
Most
of
the
States
Parties
to
the
ADHR
were
(like
Ireland)
Catholic
nations
that
brought
this
conception
of
the
human
person
(that
the
unborn
child
was
a
human
person
from
conception
whose
right
to
life
was
to
be
fully
protected)
to
the
drafting
of
the
UDHR.
Three
arguments
against
this
interpretation
can
be
made.
First,
that
the
UDHR
is
a
declaratory,
or
aspirational
document,
and
not
a
binding
treaty.
Second,
that
the
preamble
of
a
document
is
not
operative,
but
should
only
be
used
to
confirm
an
interpretation
drawn
from
the
operative
body
of
the
document.
Finally,
it
could
be
argued
that
Article
1
of
the
UDHR
could
be
interpreted
to
grant
rights
to
human
beings
only
from
birth.
To
respond
to
these
arguments,
it
is
true
that
the
UDHR
is
not
a
binding
treaty,
and
only
an
aspirational
document.
Further,
it
is
true
that
a
preamble
does
not
create
rights,
but
should
be
used
for
the
purpose
of
guiding
the
treaty’s
interpretation.
In
this
case,
though,
the
preamble
can
be
used
to
confirm
the
interpretation
of
Article
6
that
indeed
“everyone”
applies
to
all
members
of
the
human
family,
and
not
just
those
who
have
been
born.
Contrary
to
claims
by
some
UN
experts
or
treaty
bodies,
Ireland
is
under
no
international
obligation
to
change
its
Constitution
or
existing
laws
in
the
area
of
abortion.
As
to
the
third
argument,
Article
1
of
the
UDHR
states:
All
human
beings
are
born
free
and
equal
in
dignity
and
rights.
They
are
endowed
with
reason
and
conscience
and
should
act
towards
one
another
in
a
spirit
of
brotherhood.
It
should
first
be
noted
that
Article
1
is
not
as
inclusive
in
its
language
as
the
preamble
or
Article
6.
Note
that
the
first
sentence
does
not
actually
define
what
members
are
included
as
human
beings,
but
merely
states
that
those
that
are
born
are
free
and
equal
in
dignity
and
rights.
At
the
time
of
adoption
8
See
Restatement
(Third)
of
the
Foreign
Rel.
Law
of
the
U.S.
(1987)
§
702,
cmt.
a.
17
A
Response
to
the
Expert
Group
Report
Family
&
Life
of
the
UDHR
in
1948,
nearly
every
country
in
the
world
had
complete
prohibitions
on
abortion.
There
is
no
purpose
to
having
abortion
laws
unless
a
country
believes
that
the
unborn
child
is
deserving
of
at
least
some
protection
before
birth.
This
protection
could
only
be
interpreted
as
protecting
the
right
to
life
on
the
part
of
the
unborn
child,
and
a
corresponding
obligation
by
the
government
to
protect
that
right.
If
the
unborn
child
possessed
no
rights
at
all,
then
there
would
be
no
purpose
to
any
abortion
laws.
As
the
UDHR
is
only
a
declaratory
or
aspirational
document,
it
is
more
instructive
in
making
a
definitive
interpretation
on
this
issue
to
examine
how
it
was
codified
into
international
law,
which
was
accomplished
by
the
adoption
of
the
International
Covenant
on
Civil
and
Political
Rights,
and
the
International
Covenant
on
Economic,
Social,
and
Cultural
Rights.
C.
International
Covenant
on
Civil
and
Political
Rights
The
International
Covenant
on
Civil
and
Political
Rights
(ICCPR)
entered
into
force
in
1971.9
The
preamble
of
the
ICCPR,
like
the
UDHR,
speaks
of
the
“rights
of
all
members
of
the
human
family”
and
says
that
“these
rights
derive
from
the
inherent
dignity
of
the
human
person”.
The
relevant
article
to
this
discussion
is
Article
6
‐
The
Right
to
Life,
and
two
paragraphs
of
that
article
bear
mentioning:
Article
6(1):
Every
human
being
has
the
inherent
right
to
life
Article
6(5):
Sentence
of
death
shall
not
be
imposed
for
crimes
committed
by
persons
below
the
age
of
eighteen
years
of
age
and
shall
not
be
carried
out
on
pregnant
women.
(Emphasis
added).
That
Article
6
provides
for
human
rights
for
the
unborn
child
is
confirmed
by
the
good
faith
reading
of
the
following
commentator:
The
ICCPR
not
only
protects
human
beings
during
the
pre‐natal
period
of
life
under
paragraph
(5),
it
protects
them
as
holders
of
human
rights.
The
provision
must
be
read
in
context…
paragraph
(5)
is
a
particularized
application
of
that
right
[to
life]
to
children
in
the
pre‐natal
period
when
the
mother
is
facing
the
death
penalty.
ICCPR
article
6(5)
implicitly
recognizes
that
the
right‐holder
is
the
new
being
that
has
come
into
existence
at
conception.
Paragraph
(5)
recognizes
a
human
right,
and
the
right
is
held
by
the
child.10
Using
the
ordinary
meaning
rule
to
interpret
the
ICCPR,
unborn
children
are
members
of
the
human
family
as
provided
in
the
preamble,
a
conclusion
that
is
supported
by
the
implicit
right
to
life
of
the
unborn
child
under
paragraph
9
The
ICCPR
was
opened
for
signature
in
1966
and
entered
into
force
on
March
23,
1971.
10
Ambramson,
B.,
“Violence
Against
Babies:
Protection
of
Pre‐
and
Post‐Natal
Children
Under
the
Framework
of
the
Convention
on
the
Rights
of
the
Child”,
p.
78‐79,
World
Family
Policy
Center,
2006
18
A
Response
to
the
Expert
Group
Report
Family
&
Life
5
of
Article
6.11
Unlike
the
UDHR,
there
is
no
ambiguity
in
the
article
on
the
right
to
life;
here
it
simply
states
that
every
human
being
is
entitled
to
that
right.
Further
confirmation
of
this
interpretation
is
found
in
the
fact
that
a
majority
of
States
Parties
to
the
ICCPR
at
the
time
of
its
adoption
in
1971
had
laws
that
prohibited
abortion
in
all
cases,
thereby
affirming
an
unqualified
right
to
life
for
the
unborn
child.
Nevertheless,
the
Human
Rights
Committee,
the
treaty
monitoring
body
tasked
with
overseeing
compliance
with
the
ICCPR,
in
its
2008
concluding
observations,
expressed
“concern
regarding
the
highly
restrictive
circumstances
under
which
women
can
lawfully
have
an
abortion.
To
remedy
this,
the
Committee
suggested
that
Ireland
“should
bring
its
abortion
laws
into
line
with
the
Covenant”.
D.
International
Covenant
on
Economic,
Social,
and
Cultural
Rights
The
International
Covenant
on
Economic,
Social,
and
Cultural
Rights
(ICESCR)
does
not
involve
the
right
to
life
and
has
no
mention
of
abortion.12
Any
argument
that
an
economic,
social,
or
cultural
right
of
a
pregnant
mother
should
supersede
the
right
to
life
of
the
unborn
child
reveals
a
fundamental
misunderstanding
of
the
priorities
of
human
rights.
From
the
available
record,
the
treaty
body
that
oversees
the
ICESCR
has
not
waded
into
the
abortion
discussion
in
its
correspondence
relating
to
Ireland.
E.
Convention
on
the
Elimination
of
Discrimination
Against
Women
The
Convention
on
the
Elimination
of
Discrimination
Against
Women
(CEDAW)
came
into
force
in
1981.13
There
is
no
mention
of
abortion
anywhere
in
this
treaty.
In
fact,
the
only
evidence
that
pro‐abortion
groups
use
to
claim
there
is
a
right
to
abortion
in
this
treaty
are
some
statements
from
the
compliance
committee
that
oversees
the
treaty.
The
CEDAW
Committee
has
tried
to
pressure
Ireland
on
abortion
several
times.
Most
recently,
in
its
2005
concluding
observations
to
Ireland,
the
Committee
urged
Ireland
“to
continue
to
facilitate
a
national
dialogue
on
women’s
right
to
reproductive
health,
including
on
the
very
restrictive
abortion
laws”.14
11
This
is
also
the
interpretation
of
dozens
of
international
experts
who
signed
The
San
Jose
Articles,
supra
note
3.
By
first
establishing
the
humanity
of
the
unborn
child,
they
conclude
that
being
a
human
being,
he
is
part
of
the
human
family
and
entitled
to
all
of
the
protections
as
recognised
in
the
UDHR,
ICCPR,
and
other
international
instruments.
12
The
Convention
was
open
for
signature
in
1966
and
entered
into
force
January
3,
1976.
13
Convention
for
the
Elimination
of
all
forms
of
Discrimination
Against
Women,
opened
for
signature
18
December
1979,
entered
into
force
September
3,
1981
14
See
Appendix,
CEDAW
Committee,
Report
of
the
33rd
Session,
Concluding
Observations,
para.
397,
08/31/2005,
UN
Document
A/60/38
19
A
Response
to
the
Expert
Group
Report
Family
&
Life
As
will
be
demonstrated
below,
only
States
Parties
collectively
can
make
binding
interpretations
of
international
human
rights
treaties.
Further,
the
committee
in
recent
times
has
been
primarily
composed
of
pro‐abortion
advocates
who
try
to
bully
countries
into
reading
a
new
interpretation
into
this
treaty.
But
the
fact
remains
that
an
overwhelming
majority
of
States
Parties
at
the
time
of
entry
into
force
in
1981
had
very
restrictive
abortion
laws
on
their
books.
Even
today,
a
great
number
of
countries
that
are
States
Parties
to
CEDAW
continue
to
have
very
restrictive
abortion
laws,
and
have
continued
to
assert
that
CEDAW
does
not
obligate
them
to
change
their
abortion
laws.
F.
Convention
on
the
Rights
of
the
Child
(CRC)
The
Convention
on
the
Rights
of
the
Child15
is
one
of
the
newest
of
the
major
international
human
rights
treaties,
and
provides
the
most
explicit
protection
for
the
rights
of
the
unborn
child.
The
ninth
paragraph
of
the
preamble
of
the
CRC
states:
Bearing
in
mind
that,
as
indicated
in
the
[1959
United
Nations]
Declaration
of
the
Rights
of
the
Child,
“the
child,
by
reason
of
his
physical
and
mental
immaturity,
needs
special
safeguards
and
care,
including
appropriate
legal
protection,
before
as
well
as
after
birth.
Article
1
of
the
CRC
states:
For
the
purposes
of
this
Convention,
a
child
means
every
human
being
below
the
age
of
18
years
unless,
under
the
law
applicable
to
the
child,
majority
is
attained
earlier.
When
Article
1
and
the
ninth
preambular
paragraph
are
read
together
in
context
and
the
ordinary
meaning
rule
of
the
VCLT
applied,
the
logical
interpretation
is
that
the
unborn
child
is
included
as
a
human
being
under
the
CRC.16
A
few
further
points
will
confirm
this
more
clearly.
Article
24
of
the
CRC
covers
the
right
to
health
of
the
child,
and
reads
in
part:
1.
States
Parties
recognize
the
right
of
the
child
to
the
enjoyment
of
the
highest
attainable
standard
of
health…
2.
States
Parties
shall
pursue
full
implementation
of
this
right
and,
in
particular,
shall
take
appropriate
measures:…
(d)
To
ensure
appropriate
pre­natal…
care
for
mothers.
(Emphasis
added.)
This
article
obligates
the
State
to
ensure
pre‐natal
care,
which
is
included
as
a
component
to
the
right
to
health
of
the
child.
Since
pre‐natal
care
by
definition
only
applies
before
birth,
children
prior
to
birth
have
rights
under
the
CRC.
15
Convention
on
the
Rights
of
the
Child,
entered
into
force
September
2,
1990.
16
For
a
comprehensive,
nine‐point
legal
analysis
that
confirms
this
interpretation,
see
Abramson,
supra
note
10.
20
A
Response
to
the
Expert
Group
Report
Family
&
Life
Under
the
VCLT,
we
can
use
the
legislative
history
to
confirm
whether
this
interpretation
is
accurate.
In
1980,
the
UN
Commission
on
Human
Rights
established
a
working
group
to
draft
what
was
to
become
the
CRC.
This
working
group
adopted
the
revised
1979
Polish
draft
as
its
basic
working
document.
Article
1
of
this
draft
read,
“According
to
the
present
Convention
a
child
is
every
human
being
from
the
moment
of
his
birth…”
(Emphasis
added).
Even
more
important
to
this
discussion
is
the
fact
that
this
original
draft
expressly
excluded
all
references
to
the
unborn
child
as
a
right‐holder,
such
as
the
one
listed
above
in
the
preamble
and
Article
24.
So
over
the
course
of
the
negotiations,
the
Convention
went
from
excluding
all
references
to
rights
for
the
unborn
to
explicitly
including
them
in
several
places
in
the
final
version.17
Finally,
as
explained
below,
the
best
practice
of
treaty
interpretation
is
based
on
how
States
Parties
implement
relevant
provisions.
In
his
exhaustive
study
performed
for
an
official
submission
to
the
UN
Study
on
Violence
Against
Children
in
2005,
Bruce
Abramson
found
that
of
the
176
States
Parties
that
had
submitted
implementation
reports
on
the
CRC,
128
of
these
State
Parties
have
affirmed
that
the
Convention
protects
children
during
the
pre‐natal
period
of
their
lives.
Further,
no
State
Party
has
expressly
denied
that
the
Convention
applies
prior
to
birth.18
G.
Convention
against
Torture
and
Other
Cruel,
Inhuman
or
Degrading
Treatment
or
Punishment
(CAT)
This
convention,
although
dealing
with
torture
and
inhuman
treatment,
is
occasionally
referenced
as
having
jurisdiction
over
the
subject
of
abortion.
There
is
no
reference
anywhere
in
the
convention
to
the
issue
of
abortion
or
reproductive
health
or
rights.
Nevertheless,
in
recent
years,
activists
on
the
committee
that
monitors
the
Convention
have
started
pressuring
States
Parties
on
their
abortion
laws.
Just
last
year,
the
CAT
Committee
cited
the
decision
by
the
European
Court
of
Human
Rights
in
the
case
of
A,
B,
and
C
v.
Ireland
on
the
subject
of
abortion
as
a
pretext
for
arguing
that
Ireland’s
abortion
laws
were
not
in
conformity
with
the
Convention
against
Torture.19
The
Convention
on
the
Rights
of
the
Child…
provides
the
most
explicit
protection
for
the
rights
of
the
unborn
child.
H.
Only
States
Parties
Are
Entitled
to
Binding
Interpretation
of
Treaties
17
Supra
note
10,
at
168‐169:
“The
delegates
made
three
important
decisions
in
subsequent
meetings
that
changed
the
draft
text.
The
first
occurred
later
in
the
1980
session
when
the
exclusionary
“from
the
moment
of
his
birth”
clause
was
deleted…
making
draft
articles
1
and
13
[right
to
health]
coincide.
The
second
took
place
in
the
last
session,
in
1989,
when
the
delegates
added
the
“before
birth”
language
to
the
preamble.
The
third
decision
was
to
more
expressly
extend
the
child’s
right
to
care
to
the
entire
pre‐natal
period,
using
the
more
legalistic
language
as
contained
in
the
rest
of
the
convention,
and
this
change
took
place
in
the
last
session.”
18
Id.,
p.
51‐52.
19
See
Appendix,
Committee
Against
Torture,
Concluding
Observations
of
the
46th
Session,
June
17,
2011,
para.
26,
UN
Doc.
CAT/C/IRL/CO/1
21
A
Response
to
the
Expert
Group
Report
Family
&
Life
There
is
much
confusion
in
the
human
rights
literature
concerning
what
institutions
or
subjects
have
authority
to
interpret
international
treaties.
Many
human
rights
activists,
particularly
pro‐abortion
activists,
advocate
for
the
position
that
definitive
interpretation
of
international
human
rights
treaties
is
a
matter
for
treaty
compliance
committees,
judges,
or
other
non‐
State
actors.
The
reality
is
that
it
is
ultimately
for
the
States
Parties
collectively
to
determine
the
interpretation
of
what
the
rights
in
a
treaty
mean,
and
how
they
are
to
be
weighed
when
there
is
a
conflict
between
them.20
This
rule
was
confirmed
by
several
experts
during
the
first
session
of
the
Committee
on
the
Rights
of
the
Child.
According
to
Youri
Kolosov,
a
professor
of
international
law
and
a
member
of
the
initial
Committee,
(who
has
also
served
on
other
treaty
monitoring
committees),
“the
rule
[is]
that
only
States
parties
[are]
entitled
to
give
a
formal
interpretation
of
the
Convention.”21
During
this
same
session,
another
member
of
the
Committee
noted
that
“the
Committee
was
not
empowered
to
interpret
the
provisions
of
the
Convention.”22
In
this
context,
both
members
of
the
committee
meant
that
while
a
treaty
compliance
committee
has
been
given
some
right
to
interpret
the
text
of
a
treaty
in
order
to
conduct
a
dialogue
with
States,
only
States
Parties
have
the
authority
to
make
an
official
interpretation
that
is
binding
on
the
States
Parties.
Finally,
as
has
been
stated
previously,
the
best
tool
to
interpret
how
States
Parties
understand
their
obligations
under
human
rights
treaties
is
to
look
at
their
relevant
domestic
laws
that
cover
the
rights
in
a
specific
treaty.
In
the
case
of
the
unborn
child,
nearly
all
States
Parties
to
all
of
the
major
human
rights
treaties
offer
at
least
some
protection
to
the
right
to
life
of
the
unborn
via
their
abortion
laws,
and
a
majority
of
states
offer
significant
or
full
protection
to
the
right
to
life
of
the
unborn.
This
will
be
examined
in
more
detail
under
the
customary
international
law
section.
I.
Human
Rights
Treaty
Bodies’
Interpretations
of
Treaty
Provisions
are
Neither
Authoritative
Nor
Binding
Those
who
argue
that
there
is
an
international
right
to
abortion
fail
to
ground
this
right
in
an
explicit
provision
of
any
international
human
rights
treaty.
Instead
they
claim
that
recent
statements
made
by
non‐State
actors,
especially
by
various
human
rights
treaty
monitoring
bodies,
affirm
the
existence
of
this
right
under
the
umbrella
of
various
other
rights,
including
the
right
to
life,
right
to
non‐discrimination,
or
a
right
to
health.
A
good
example
of
this
includes
General
Recommendation
No.
24
of
the
CEDAW
Committee,
on
Women
and
Health,
which
states
in
paragraph
31
20
Cf.
Joyner,
C.C.,
International
Law
in
the
21st
Century,
Rowman
&
Littlefield,
2005,
p.
114:
“In
interpreting
a
treaty
text,
the
task
becomes
to
ascertain
what
the
text
means
to
the
parties
collectively…”
21
UN
Doc.
CRC/C/1991/SR.
14
(October
9,
1991),
at
para.
28
22
Marta
Santos
Pais,
Id.,
at
para.
29
22
A
Response
to
the
Expert
Group
Report
Family
&
Life
that
“legislation
criminalizing
abortion
should
be
amended,
in
order
to
withdraw
punitive
measures
imposed
on
women
who
undergo
abortion”.
This
is
one
of
the
most
egregious
examples
of
overstepping
by
a
treaty
body.
This
recommendation
on
abortion
is
purportedly
based
on
Article
12
of
CEDAW,
which
provides
that
states
should
ensure
access
to
health
care
services,
including
those
relating
to
family
planning.
Two
commentators
on
the
treaty
bodies
have
demonstrated
the
complete
lack
of
authority
for
this
interpretation
by
the
CEDAW
committee.
Article
12
contains
the
phrase
“family
planning,”
and
two
international
conferences
in
1994
and
1995
expressly
confirmed
that
states
did
not
understand
“family
planning”
to
include
abortion
rights.
Nonetheless,
just
four
years
later,
in
1999,
the
CEDAW
Committee
issued
General
Recommendation
24,
asserting
“family
planning”
includes
a
right
to
abortion.
It
cited
no
authority
for
this
proposition.
General
Recommendation
24
stated
that
legislation
criminalizing
abortion
should
be
amended
so
women
can
undergo
abortion
without
being
subject
to
any
punitive
measures.
Regardless
of
the
wisdom
of
this
policy,
the
text
and
the
background
of
Article
12
show
abortion
is
simply
outside
the
jurisdiction
of
the
treaty.
It
defies
credulity
that
the
CEDAW
Committee
made
a
good
faith
interpretation
of
its
mandate
and
of
Article
12,
consistent
with
the
requirements
of
the
VCLT.23
However,
the
treaty
bodies
that
oversee
the
monitoring
of
human
rights
treaties
were
never
given
the
power
to
issue
authoritative
or
binding
interpretations
of
the
treaties,
which
is
reserved
to
the
States
Parties
collectively.
A
review
of
the
treaty
body
mandates,
and
the
treaty
bodies’
early
exercise
of
those
mandates,
shows
they
have
the
following
limited
powers:
1)
to
monitor
the
periodic
reports
of
States
Parties
2)
to
honour
States
Parties’
requests
to
send
a
delegation
during
the
consideration
of
their
State
Party’s
periodic
report
Two
commentators
on
the
treaty
bodies
have
demonstrated
the
complete
lack
of
authority
for
this
interpretation
by
the
CEDAW
committee.
3)
to
issue
summaries
of
States
Parties’
compliance
in
treaty
body
annual
reports
and
4)
to
issue
collective,
and
non‐binding,
and
non‐critical
comments,
suggestions,
and
recommendations
on
States
Parties’
periodic
reports.
These
limited
powers
reflect
a
good
faith
interpretation
of
the
texts
of
the
treaties.24
23
Kloster,
A.,
and
Pedone,
J.,
“Human
Rights
Treaty
Body
Reform:
New
Proposals”
(unpublished),
available
at
http://ssrn.com/abstract=1885758
24
See
Opsahl,
T.,
The
Human
Rights
Committee,
in
The
United
Nations
and
Human
Rights:
A
Critical
Appraisal
369,407‐8
(Philip
Alston
ed.,
Clarendon
Press,
Oxford
1992)
(arguing
that
many
HRC
members
understood
their
role
as
cooperating
with
States
Parties,
and
they
“strongly
oppose[d]
the
idea
that
the
[HRC]
should
criticise
individual
States
23
A
Response
to
the
Expert
Group
Report
Family
&
Life
In
fact,
States
Parties
have
made
numerous
statements
regarding
their
stance
that
general
comments
are
not
legally
binding,
and
were
not
contemplated
to
be
legally
binding
when
treaties
were
negotiated.
None
of
the
statements
made
by
States
Parties
concerning
this
issue
have
claimed
that
the
general
comments
are
binding.
According
to
Article
31(3)(b)
of
the
VCLT,
this
subsequent
unanimous
practice
informs
the
context
of
the
treaty.25
Finally,
many
prominent
contemporary
proponents
for
broad
treaty
body
power
have
conceded
repeatedly
that
the
decisions,
observations,
or
recommendations
of
treaty
bodies
lack
any
binding
authority,
including
Michael
O’Flaherty,
the
primary
author
of
the
Yogyakarta
Principles.26
An
argument
is
sometimes
advanced
that
treaty
bodies
may
take
on
a
form
of
quasi‐judicial
authority
with
regard
to
powers
granted
them
in
various
optional
protocols.
A
prime
example
cited
in
this
area
is
Optional
Protocol
1
of
the
ICCPR.
A
careful
reading
of
Articles
1
and
5
of
this
optional
protocol,
which
delineate
the
authority
granted
to
the
Human
Rights
Committee
that
monitors
the
ICCPR,
shows
that
it
is
not
granted
any
judicial
or
binding
authority.
The
optional
protocol
allows
individuals
to
bring
complaints
alleging
violations
of
the
ICCPR
directly
to
the
Human
Rights
Committee.
The
committee’s
authority
is
limited
strictly
to
receiving
and
considering
communications
alleging
violations,
after
which
“the
Committee
shall
forward
its
views
to
the
State
Party
concerned
and
to
the
individual.”
This
is
the
extent
of
the
Committee’s
power.
There
is
no
provision
instructing
a
State
Party
that
it
has
to
comply
with
the
views
of
the
committee,
and
also
notably,
not
even
a
provision
that
would
allow
the
Committee’s
views
to
be
referred
to
as
a
“decision”,
a
term
that
has
been
frequently
and
wrongly
used
to
refer
to
the
Committee’s
final
action.
Parties
or
determine
that
they
do
not
fulfill
their
obligations
to
implement
the
[International
Covenant
on
Civil
and
Political
Rights].”).
25
See
e.g.,
Report
of
the
Human
Rights
Committee,
50th
Sess.,
Supp.
No.
40,
Annex
VI,
Observations
of
States
Parties
Under
Article
40,
Paragraph
5,
of
the
Covenant,
at
135,
U.N.
Doc.A/50/40
(Oct.
5,
1995)
(“The
United
Kingdom
is
of
course
aware
that
the
General
Comments
adopted
by
the
[Human
Rights]
Committee
are
not
legally
binding.”).
See
also
the
United
States
statements
that
the
ICCPR
“does
not
impose
on
States
Parties
an
obligation
to
give
effect
to
the
[Human
Rights]
Committee’s
interpretations
or
confer
on
the
Committee
the
power
to
render
definitive
or
binding
interpretations”
of
the
ICCPR.
Id
at
131.
The
“Committee
lacks
the
authority
to
render
binding
interpretations
or
judgments,”
and
the
“drafters
of
the
Covenant
could
have
given
the
Committee
this
role
but
deliberately
chose
not
to
do
so.”
Id.
26
See,
e.g.,
Nowak,
M.,
‘The
Need
for
a
World
Court
of
Human
Rights’
in
Human
Rights
Law
Review
7:1,
252
(2007)
(noting
that
treaty
bodies
issue
“non‐binding
decisions
on
individual
complaints
as
well
as…concluding
observations
and
recommendations
relating
to
the
State
reporting
and
inquiry
procedures.”);
O’Flaherty,
M.,
and
Fisher,
J.,
‘Sexual
Orientation,
Gender
Identity
and
International
Human
Rights
Law:
Contextualising
the
Yogyakarta
Principles’
in
Human
Rights
Law
Review
8:2,
215
(2008)
(“Concluding
Observations
have
a
non‐binding
and
flexible
nature.”);
Zampas,
C.,
&
Gher,
J.M.,
‘Abortion
as
a
Human
Right—International
and
Regional
Standards’
in
Human
Rights
Law
Review
8:2,
253
(2008)
(noting
that
treaty
bodies
“are
not
judicial
bodies
and
their
Concluding
Observations
are
not
legally
binding”).
24
A
Response
to
the
Expert
Group
Report
Family
&
Life
One
of
the
best
ways
to
determine
how
States
Parties
understand
their
obligations
under
human
rights
treaties
(absent
explicit
statements
to
the
effect,
which
are
seldom
made)
is
to
look
at
their
relevant
domestic
laws
as
evidence
of
subsequent
practice.
J.
Customary
International
Law
and
State
Practice
Perhaps
the
most
widely
accepted
definition
of
customary
international
law
is
a
rule
of
international
law
that
“results
from
a
general
and
consistent
practice
of
states
followed
by
them
from
a
sense
of
legal
obligation”.
27
Article
38
of
the
Statute
of
the
International
Court
of
Justice,
a
Court
established
in
the
United
Nations
Charter,
states
that
the
Court
shall
apply
“international
custom,
as
evidence
of
a
general
practice
accepted
as
law”.
International
custom
has
three
main
components:
general
(not
absolute)
uniformity
and
consistency,
generality
(not
necessarily
universality)
of
practice,
and
a
basis
for
finding
that
the
practice
in
question
has
gone
beyond
mere
usage
and
taken
on
the
form
of
an
obligation.
According
to
a
2011
report
by
the
Center
for
Reproductive
Rights
(CRR),
an
American
abortion
advocacy
group,
126
countries
have
restrictive
abortion
laws,
with
only
73
countries
having
liberal
abortion
laws.28
Breaking
this
report
down
further,
68
countries
either
completely
restrict
abortion,
or
only
allow
it
to
save
a
mother’s
life.
A
further
58
countries
restrict
abortion,
excepting
to
protect
the
health
or
save
the
life
of
the
mother.
Fifteen
countries
allow
abortion
for
various
socio‐economic
reasons.
Finally,
the
report
lists
58
countries
that
permit
abortion
without
restriction
to
reason.
It
should
be
noted
that
this
number
appears
inflated,
especially
as
it
has
the
qualification
that
these
countries
have
“gestational
limits
of
12
weeks
unless
otherwise
indicated”.
So
in
fact,
even
by
the
count
of
pro‐abortion
advocates,
nearly
every
country
has
some
significant
restriction
on
abortion.
While
there
is
clearly
no
international
consensus
on
there
being
a
“right”
to
abortion,
there
does
seem
to
be
an
almost
universal
consensus
that
unborn
life
should
be
protected
in
some
way.
While
there
is
clearly
no
international
consensus
on
there
being
a
“right”
to
abortion,
there
does
seem
to
be
an
almost
universal
consensus
that
unborn
life
should
be
protected
in
some
way.
The
actions
of
the
most
aggressive
and
overreaching
treaty
body,
the
CEDAW
Committee,
ironically
confirm
the
lack
of
consensus
on
an
international
right
to
abortion.
Between
1995
and
2010,
the
CEDAW
Committee
pressured
no
27
Restatement
of
the
Foreign
Relations
Law
of
the
United
States
(Third)
(1987)
§
102(2)
28
CRR
describes
itself
as
“a
nonprofit
legal
advocacy
organization
dedicated
to
promoting
and
defending
women’s
reproductive
rights
worldwide.”
The
report
is
available
at
http://reproductiverights.org/sites/crr.civicactions.net/files/documents/AbortionMap
_2011.pdf
25
A
Response
to
the
Expert
Group
Report
Family
&
Life
fewer
than
83
countries
to
liberalise
their
abortion
laws.29
This
is
nearly
half
of
all
of
the
signatories
to
the
treaty,
and
clearly
shows
that
by
their
subsequent
state
practice,
dozens
of
countries
did
not
interpret
the
treaty
to
include
abortion
or
feel
obligated
to
change
their
laws
based
on
their
ratification
of
the
treaty.
That
a
treaty
body
would
insist
that
so
many
countries
needed
to
change
their
laws
shows
a
lack
of
consensus
in
this
area
to
begin
with.
Therefore,
based
just
on
statistics
of
pro‐abortion
advocacy
groups
and
the
pro‐abortion
CEDAW
Committee,
it
is
clear
that
there
is
no
customary
international
norm
or
consensus
in
the
area
of
abortion.
Based
on
the
above
analysis
of
international
law
and
the
international
human
rights
treaties
that
Ireland
is
a
State
Party
to,
in
protecting
the
rights
of
the
unborn
child
Ireland
is
fulfilling
its
obligations
to
its
Constitution,
and
its
obligations
under
these
international
treaties.
III.
CONCLUSION
AND
RECOMMENDATIONS
–
INTERNATIONAL
LAW
The
unborn
child
is
a
living
human
being
from
the
moment
of
conception,
and
is
entitled
to
all
of
the
same
rights
as
other
members
of
the
human
family.
The
first
among
these
is
the
right
to
life,
the
most
important
right,
without
which
no
other
rights
matter.
An
analysis
of
the
Constitution
of
Ireland
and
international
law
confirm
that
the
unborn
child,
by
being
granted
explicit
or
implicit
protections,
is
a
rights‐holder
that
is
to
be
treated
equally
under
the
law
as
any
other
human
being.
Any
attempt
to
“liberalise”
abortion
in
Ireland
by
amending
the
laws
relating
to
the
practice,
either
by
legislating
for
the
X
Case
judgement
or
through
exceptions
for
“hard
cases”
or
for
the
health
of
the
mother
is
gravely
discriminatory
to
those
unborn
children
that
would
be
affected,
for
it
would
effectively
treat
them
as
non‐persons
under
the
law,
and
violate
their
right
to
life,
as
guaranteed
by
Article
40.3.3
of
the
Irish
Constitution.
A
good
faith
interpretation
of
international
treaty
law
in
this
area
demonstrates
that
Ireland
is
properly
fulfilling
its
state
responsibility
to
guarantee
the
right
to
life
by
protecting
the
life
of
its
unborn
children
in
its
Constitution
and
in
its
practice.
29
Jacobson,
T.,
“CEDAW
Committee
Rulings
Pressuring
83
Party
Nations
to
Legalize
Abortion”,
available
at
http://www.c‐
fam.org/docLib/20101022_CEDAWAbortionRulings95‐2010.pdf
26
A
Response
to
the
Expert
Group
Report
Family
&
Life
MEDICAL
CARE
OF
PREGNANT
WOMEN
IN
IRELAND
It
would
never
cross
an
obstetrician’s
mind
that
intervening
in
a
case
of
pre­
eclampsia,
cancer
of
the
cervix
or
ectopic
pregnancy
is
abortion.
They
are
not
abortion
as
far
as
the
professional
is
concerned;
these
are
medical
treatments
that
are
essential
to
protect
the
life
of
the
mother.
So
when
we
interfere
in
the
best
interests
of
protecting
a
mother,
and
not
allowing
her
to
succumb,
and
we
are
faced
with
a
foetus
that
dies,
we
don’t
regard
that
as
something
that
we
have,
as
it
were,
achieved
by
an
abortion.
Abortion
in
the
professional
view
to
my
mind
is
something
entirely
different.
It
is
actually
intervening,
usually
in
a
normal
pregnancy,
to
get
rid
of
the
pregnancy,
to
get
rid
of
the
foetus.
That
is
what
we
would
consider
the
direct
procurement
of
an
abortion.
In
other
words,
it’s
an
unwanted
baby
and,
therefore,
you
intervene
to
end
its
life.
That
has
never
been
a
part
of
the
practice
of
Irish
obstetrics
and
I
hope
it
never
will
be.—Prof.
John
Bonnar,
Chairman,
Institute
of
Obstetricians
and
Gynaecologists,
Submission
to
the
All‐Party
Oireachtas
Committee
on
the
Constitution,
May
2,
2000
The
fact
that
a
woman
is
pregnant
is
not
a
ground
for
refusing
her
appropriate
medical
treatment.
In
other
jurisdictions,
doctors
faced
with
a
pregnant
woman
with
a
serious
medical
condition
may
choose
to
terminate
her
pregnancy
first,
and
then
treat
her,
because
they
find
it
more
convenient.
This
is
especially
so
when
it
occurs
in
a
place
where
induced
abortion
is
an
accepted
fact
of
life
and
medical
practice.
Not
surprisingly,
a
doctor
who
sets
at
naught
the
value
of
an
unborn
child
may
choose
a
different
course
of
treatment
to
one
who
regards
the
unborn
as
a
separate
patient
to
whom
he
or
she
has
a
duty
of
care.
Although
there
may
be
cases
where
induced
abortion
is
performed
with
the
purported
intention
of
saving
the
life
of
the
mother,
this
is
not
proof
that
it
is
necessary,
and
that
no
other
course
of
action
would
save
her.
If
there
is
a
choice
of
treatments
available
of
comparable
efficacy,
there
is
an
obligation
to
choose
the
treatment
least
harmful
to
the
unborn
child.
The
relevant
question
is
not
whether
two
doctors
will
pursue
different
courses
of
treatment,
but
whether
one
course
is
likely
to
have
a
significantly
different
outcome
for
the
pregnant
woman.
If
the
course
of
action
that
respects
the
right
to
life
of
the
unborn
child
involves
an
elevated
risk
to
the
mother,
the
question
arises
whether
this
additional
risk
is
justified.
Given
the
great
value
of
the
life
of
the
unborn,
it
is
legitimate
to
countenance
a
course
of
action
involving
only
a
slight
additional
risk
to
the
mother
if
this
is
likely
to
save
the
life
of
the
unborn.
This
is
an
area
where
additional
clarity
may
be
helpful.
27
A
Response
to
the
Expert
Group
Report
Family
&
Life
In
1992
after
the
X
case
judgement,
the
Irish
Medical
Council
invited
anyone
who
wished,
to
submit
evidence
of
the
necessity
of
abortion.
It
received
no
submissions
that
it
found
convincing.
The
fifth
edition
of
the
Medical
Council’s
Guide
to
Ethical
Conduct
and
Behaviour
(1998)
states
that
“The
deliberate
and
intentional
destruction
of
the
unborn
child
is
professional
misconduct.
Should
a
child
in
utero
suffer
or
lose
its
life
as
a
side
effect
of
standard
medical
treatment,
then
this
is
not
unethical.
Refusal
by
a
doctor
to
treat
a
woman
with
a
serious
illness
because
she
is
pregnant
would
be
grounds
for
complaint
and
could
be
considered
professional
misconduct.”
The
6th
edition
(2004)
stated
that
the
Council
“recognises
that
termination
of
pregnancy
can
occur
when
there
is
real
and
substantial
risk
to
the
life
of
the
mother”,
but
it
also
explicitly
endorsed
the
views
expressed
in
Part
2
of
the
written
submission
of
the
Institute
of
Obstetricians
and
Gynaecologists
to
the
All‐Party
Oireachtas
Committee
on
the
Constitution
as
contained
in
its
Fifth
Progress
Report,
Appendix
IV,
page
A407,
which
it
attached
as
an
appendix.
The
relevant
part
of
that
submission
from
the
Institute
of
Obstetricians
and
Gynaecologists
reads:
“In
current
obstetrical
practice
rare
complications
can
arise
where
therapeutic
intervention
is
required
at
a
stage
in
pregnancy
when
there
will
be
little
or
no
prospect
for
the
survival
of
the
baby,
due
to
extreme
immaturity.
In
these
exceptional
situations
failure
to
intervene
may
result
in
the
death
of
both
mother
and
baby.
We
consider
that
there
is
a
fundamental
difference
between
abortion
carried
out
with
the
intention
of
taking
the
life
of
the
baby,
for
example
for
social
reasons,
and
the
unavoidable
death
of
the
baby
resulting
from
essential
treatment
to
protect
the
life
of
the
mother.”
The
7th
and
current
edition
(2009)
of
the
Guide
states:
“Abortion
is
illegal
in
Ireland
except
where
there
is
a
real
and
substantial
risk
to
the
life
(as
distinct
from
the
health)
of
the
mother.
Under
current
legal
precedent,
this
exception
includes
where
there
is
a
clear
and
substantial
risk
to
the
life
of
the
mother
arising
from
a
threat
of
suicide.
You
should
undertake
a
full
assessment
of
any
such
risk
in
light
of
the
clinical
research
on
this
issue.
“It
is
lawful
to
provide
information
in
Ireland
about
abortions
abroad,
subject
to
strict
conditions.
It
is
not
lawful
to
encourage
or
advocate
an
abortion
in
individual
cases.
“You
have
a
duty
to
provide
care,
support
and
follow‐up
services
for
women
who
have
an
abortion
abroad.
“In
current
obstetrical
practice,
rare
complications
can
arise
where
therapeutic
intervention
(including
termination
of
a
pregnancy)
is
required
at
a
stage
when,
due
to
extreme
immaturity
of
the
baby,
there
may
be
little
or
no
hope
of
the
baby
surviving.
In
these
exceptional
28
A
Response
to
the
Expert
Group
Report
Family
&
Life
circumstances,
it
may
be
necessary
to
intervene
to
terminate
the
pregnancy
to
protect
the
life
of
the
mother,
while
making
every
effort
to
preserve
the
life
of
the
baby.”
While,
from
a
pro‐life
perspective,
the
latest
guidelines
are
not
so
robust
as
they
were,
they
still
require
that
in
providing
necessary
care
to
a
pregnant
woman
that
may
result
in
the
death
of
her
baby,
doctors
make
“every
effort
to
preserve
the
life
of
the
baby.”
It
is
clear
that
even
under
these
guidelines
the
“termination
of
pregnancy”
that
is
envisaged
is
not
the
direct
intentional
destruction
of
the
unborn.
Previous
editions
articulate
clearly
the
distinction
between
the
deliberate
and
intentional
destruction
of
the
unborn
child
on
the
one
hand,
and
medical
interventions
carried
out
for
the
benefit
of
the
mother,
which
may
have
the
unintended
(even
if
foreseen)
result
of
causing
the
death
of
the
child.
Medical
interventions
necessary
to
save
the
life
of
a
pregnant
woman
have
always
been
allowed
in
Ireland,
even
where
they
have
the
unintended
effect
of
causing
the
death
of
her
unborn
child.
The
classic
example
is
ectopic
pregnancy
when
the
partially
ruptured
fallopian
tube
containing
the
foetus,
whether
alive
or
already
dead,
is
removed.30
There
is
a
range
of
other
conditions
that
can
arise
in
pregnancy,
the
treatment
of
which
may
have
implications
for
the
survival
of
the
unborn
child.
These
include
cancers,
cardiac
conditions,
and
various
other
extremely
rare
conditions.
CANCER
IN
PREGNANCY
The
rate
of
pregnancy‐associated
cancer
is
estimated
to
be
1
in
1,000
pregnancies:
this
means
that
60‐70
women
per
year
in
Ireland
could
be
diagnosed
with
cancer
in
pregnancy
every
year.
The
National
Cancer
Registry
does
not
collect
statistics
on
the
incidence
of
cancer
in
pregnancy
in
Ireland.
Nor
is
there
any
systematic
reporting
of
cases
of
cancer
by
the
three
major
maternity
hospitals
in
Dublin.
The
total
number
of
women
under
50
who
develop
cancer
every
year
in
Ireland
is
around
1,500.
One
would
expect
around
5
per
cent
of
these
to
develop
cancer
during
pregnancy—75
women.
Only
2
per
cent
of
breast
cancer
cases
occur
in
women
under
35,
but
20
per
cent
occur
in
women
between
the
ages
of
35
and
49.
It
is
in
this
age
group
that
cancer
in
pregnancy
is
most
likely
to
occur.
Pregnant
women
are
understandably
worried
about
the
effects
of
cancer
and
its
treatment
on
themselves
and
on
their
unborn
babies.
Normally,
cancer
is
treated
by
a
combination
of
surgery
and/or
chemotherapy
and
radiation.
These
may
all
have
to
be
modified
in
the
case
of
a
pregnant
woman.
The
treatment
of
cancer
in
pregnancy
has
developed
rapidly
in
recent
decades.
So
much
so,
that
the
prognosis
for
a
woman
with
cancer
during
pregnancy
is
30
Today,
it
is
more
likely
that
the
tube
would
be
opened
(salpingostomy)and
the
foetus
removed.
This
is
not
strictly
according
to
the
Principle
of
Double
Effect
but
is
done
for
the
sake
of
the
future
fertility
of
the
woman.
29
A
Response
to
the
Expert
Group
Report
Family
&
Life
comparable
to
that
of
a
non‐pregnant
woman,
with
a
successful
outcome
also
likely
for
the
baby.31
One
of
Ireland’s
best‐known
oncologists,
Professor
John
Crown,
acknowledged
in
February
2012
that,
while
he
had
faced
some
“hard
decisions
re:
chemotherapy
in
pregnancy”,
“I
don’t
think
I
ever
had
a
case
where
abortion
was
necessary
to
save
mom.”32
Cancer
of
the
breast
and
cervix
and,
in
recent
years,
oral
cancer,
are
the
most
common
cancers
in
young
women,
but
leukaemia
and
other
blood
cancers
are
also
relatively
common.
Cervical,
breast,
and
ovarian
cancers
are
the
most
common
gynaecological
cancers
diagnosed
during
pregnancy.
Pregnant
patients
with
these
cancers
now
have
similar
outcomes
to
non‐pregnant
patients.
Chemotherapy
Chemotherapy
is
potentially
curative
in
carcinoma
of
the
breast
and
ovary,
acute
leukaemia,
Hodgkin’s
lymphoma,
and
intermediate
and
high‐grade
non‐Hodgkin’s
lymphoma.
The
timing
of
foetal
exposure
to
cytotoxic
drugs
is
critical.
Research
has
shown
that
chemotherapy
is
best
avoided
in
the
first
trimester,
but
later
in
pregnancy
most
chemotherapy
has
little
effect
on
the
foetus
and
can
safely
be
given.33
Significant
exposure
to
cytotoxic
agents
during
the
first
four
weeks
of
gestation
may
result
in
miscarriage.
The
risk
of
birth
defects
increases
if
the
exposure
occurs
during
5–12
weeks
gestation,
when
organogenesis
takes
place.
The
most
toxic
drugs
during
this
period
are
aminopterin
(no
longer
in
use)
and
methotrexate.
By
week
12
of
gestation,
organogenesis
is
complete
with
the
exception
of
the
brain
and
gonads.
Exposure
to
these
drugs
during
the
second
and
third
trimesters
is
not
associated
with
teratogenic
effects.
A
2001
study
from
Mexico,
gave
a
long‐term
evaluation
of
84
mothers
and
their
children
who
had
received
chemotherapy,
including
38
who
received
chemotherapy
during
the
first
trimester.
The
cases
dated
from
1973
onwards.
No
congenital
abnormalities
were
discovered
in
the
children,
nor
was
there
any
evidence
of
cancer
in
them
or
in
their
children.34
A
more
recent
study
from
Belgium
examined
215
women
who
had
had
cancer
in
pregnancy.
Five
had
spontaneous
miscarriage,
30
had
medical
abortions.
Of
the
remaining
180
patients,
122
were
treated
during
31
See
e.g.
Lee,
Y.,
Roberts,
C.,
Dobbins,
T.,
Stavrou,
E.,
Black,
K.,
Morris,
J.
and
Young,
J.,
‘Incidence
and
outcomes
of
pregnancy‐associated
cancer
in
Australia,
1994–2008:
a
population‐based
linkage
study’
in
British
Journal
of
Obstetrics
&
Gynaecology.
119,
December
2012,
1572‐1582.
32
https://twitter.com/ProfJohnCrown/status/172100435090489346
33
There
is
some
evidence
that
chemotherapy
can
be
safely
given
even
during
the
first
trimester,
if
the
chemotherapeutic
drugs
are
chosen
carefully.
34
Avilés,
A.,
and
Neri,
N.,
‘Hematological
Malignancies
and
Pregnancy:
A
Final
Report
of
84
Children
Who
Received
Chemotherapy
In
Utero’
in
Clinical
Lymphoma,
3,
December
2001,
173‐177.
30
A
Response
to
the
Expert
Group
Report
Family
&
Life
pregnancy,
58
post
partum.
None
of
the
women
died
in
pregnancy
and
there
was
no
increased
incidence
of
congenital
abnormalities.
The
most
serious
complication
for
the
babies
of
those
given
chemotherapy
was
premature
delivery
with
low
birth
weight.35
One
of
the
reasons
why
the
foetus
can
be
little
affected
is
that
it
is
thought
that
chemotherapy
does
not
easily
cross
the
placental
barrier.
A
study
done
in
Germany
found
that
the
levels
of
chemotherapy
in
the
amniotic
fluid
was
only
10
per
cent
of
that
found
in
the
mother’s
blood.
A
small
Irish
study
on
breast
cancer
was
done
in
the
Mater
Misericordiae
University
Hospital,
Dublin,
and
reported
at
the
JOGS
(Junior
Obstetrics
and
Gynaecology
Society)
Annual
Scientific
Meeting
in
November
2009.
The
report
was
of
9
women
who
had
chemotherapy
for
invasive
breast
cancer
during
pregnancy.
The
mean
maternal
age
was
35
years
(30‐42).
The
average
woman
was
diagnosed
at
10
weeks
gestation
(3‐19).
Eight
of
the
women
had
surgery,
the
other
woman’s
cancer
was
deemed
too
far
advanced.
None
of
the
women
received
chemotherapy
during
the
first
trimester
but
all
received
doxorubicin/cyclophosphamide
during
the
second/third
trimesters.
All
delivered
safely
at
an
average
of
38
weeks
gestation
(36‐40
weeks).
There
were
no
miscarriages
or
foetal
malformations.
One
baby
was
born
with
low
white
cell
count
but
was
otherwise
well.
Treatment
of
the
women
continued
after
delivery.
Two
needed
further
surgery.
Seven
had
radiotherapy
and
five
received
tamoxifen,
both
contraindicated
during
pregnancy.
All
women
were
alive
at
last
review
on
average
45
months
(18‐124
months)
following
diagnosis.
Radiation
Radiation
as
treatment
is
generally
avoided
in
the
first
and
second
trimesters,
but
can
be
given
for
cancers
of
the
breast
and
mouth,
if
a
lead
shield
is
placed
over
the
abdomen.
Radiation
to
the
cervix
has
been
shown
to
cause
abnormalities
to
the
foetus.
But
since
healthy
cervical
mucus
is
necessary
for
pregnancy
to
occur,
most
cancers
of
the
cervix
diagnosed
in
pregnancy
are
at
an
early
stage
and
it
has
been
found
that
postponing
treatment
until
after
delivery
(which
may
be
induced
early)
or
until
the
point
where
the
foetus
has
matured
sufficiently
so
that
treatment
presents
little
hazard,
is
a
reasonable
option.
This
does
not
affect
the
outcome
for
the
mother.
35
Van
Calsteren,
K.,
Heyns,
L.,
De
Smet,
F.,
Van
Eycken,
L.,
Mhallem
Gziri,
M.,
Van
Gemert,
W.,
Halaska,
M.,
Vergote,
I.,
Ottevanger,
N.,
and
Amant,
F.,
‘Cancer
During
Pregnancy:
An
Analysis
of
215
Patients
Emphasizing
the
Obstetrical
and
the
Neonatal
Outcomes’
in
Journal
of
Clinical
Oncology,
28
(4)
February
1,
2010,
683‐689.
31
A
Response
to
the
Expert
Group
Report
Family
&
Life
Over
80
per
cent
of
cancers
of
the
cervix
in
pregnant
women
are
diagnosed
at
stage
1,
with
only
2
per
cent
at
stage
4.
Stage
for
stage,
the
prognosis
is
similar
to
that
of
non‐pregnant
patients.36
In
another
study
of
27
patients
with
invasive
cancer
of
the
cervix,
eight
patients
with
stage
Ia
or
Ib
cervical
cancer
postponed
therapy
to
optimise
foetal
outcome,
with
a
mean
diagnosis‐to‐treatment
interval
of
144
days
(range
53‐212).
Nineteen
patients
elected
immediate
treatment,
with
a
mean
diagnosis‐to‐treatment
interval
of
17
days
(range
2‐42).
Foetal
outcome
was
uniformly
good
for
the
delayed‐treatment
group.
Nine
foetal
deaths
and
two
neonatal
deaths
occurred
in
the
immediate‐treatment
group.
This
represents
a
58
per
cent
pregnancy
loss.
All
patients
who
delayed
therapy
were
cancer‐
free
after
a
median
follow‐up
of
23
months.
The
authors
concluded
that
delaying
treatment
is
reasonable
in
cases
of
early
cancer
of
the
cervix.37
Computerised
tomography
to
the
abdomen
and
pelvis
in
order
to
determine
the
stage
of
the
progress
of
cancer
of
the
cervix
is
not
recommended
in
pregnancy
as
it
exposes
the
foetus
to
high
doses
of
radiation.
Ultrasound
and
magnetic
resonance
imaging
are
to
be
preferred.
The
estimated
level
of
radiation
from
an
abdominal‐pelvic
CT
scan
is
10mSv.
The
US
National
Council
on
Radiation
Protection
and
Measurements
and
the
American
College
of
Obstetricians
and
Gynecologists
both
agree
that
the
potential
health
risks
to
an
unborn
child
are
not
increased
from
most
standard
medical
tests
with
a
radiation
dose
below
50mSv38.
The
risk
is
negligible
so
long
as
exposure
does
not
exceed
100mSv.
In
early
pregnancy
(before
the
woman
misses
her
menses),
high
doses
of
radiation
cause
the
death
of
the
foetus
resulting
in
miscarriage
but
do
not
result
in
foetal
abnormalities.
Surgical
Treatment
Normal
surgery
of
breast
cancer
can
be
undertaken
during
pregnancy,
provided
that
care
is
taken
that
the
foetus
is
well
oxygenated.
Surgery
for
cancer
of
the
cervix
will
present
more
problems.
If
invasive
cancer
occurs
in
the
first
trimester,
it
is
ethical
to
remove
the
pregnant
uterus
to
save
to
life
of
the
mother,
applying
the
principle
of
double
effect
(see
Appendix
2).
Cancer
of
the
cervix
is
often
diagnosed
early
in
pregnancy
due
to
the
regular
examination
of
the
cervix
and
taking
of
Pap
smears.
36
American
Society
for
Colposcopy
and
Cervical
Pathology,
http://www.asccp.org/PracticeManagement/Cervix/CervicalCancerandColposcopyDuri
ngPregnancy/tabid/7507/Default.aspx#epi
37
Duggan,
B.,
Muderspach,
L.I.,
Roman,
L.D.,
Curtin,
J.P.,
d’Ablaing,
G.
3rd,
Morrow,
C.P.,
‘Cervical
cancer
in
pregnancy:
reporting
on
planned
delay
in
therapy’
in
Obstetrics
and
Gynecology,
1993,
82
(4
Pt
1),
598‐602.
38
Factsheet,
Radiation
Exposure
and
Pregnancy,
produced
by
the
Health
Physics
Society,
http://hps.org/documents/pregnancy_fact_sheet.pdf.
32
A
Response
to
the
Expert
Group
Report
Family
&
Life
Prognosis
for
the
Mother
According
to
a
2007
Norwegian
study
of
45,511
women
diagnosed
with
cancer
between
1967
and
2004,
matched
for
age
and
stage,
pregnancy
does
not
affect
survival
either
way.39
Two
small
studies
even
suggest
that
terminating
a
pregnancy
may
reduce
a
woman’s
chance
of
fighting
the
disease.40
In
some
cases,
the
woman’s
fertility
may
be
affected
by
radiation
or
chemotherapy.
However,
in
women
who
have
had
treatment
for
breast
cancer
and
whose
fertility
is
not
affected,
a
subsequent
pregnancy
improves
the
prognosis.
It
is,
however,
generally
advisable
to
wait
for
two
to
three
years
before
becoming
pregnant
after
treatment
for
cancer.
A
number
of
studies
have
shown
that
the
outlook
for
pregnant
women
with
cancer
is
as
good
or
better
for
women
who
continue
with
the
pregnancy
as
for
those
who
opt
for
abortion.
It
should
be
noted,
however,
that
there
is
no
designated
centre
for
the
treatment
of
pregnant
women
with
cancer
in
Ireland.
Since
the
incidence
of
cancer
in
pregnancy
is
likely
to
become
more
common
as
more
women
delay
pregnancy
until
well
into
their
thirties
or
forties,
the
establishment
of
such
a
centre
is
something
that
might
reasonably
be
advocated
as
a
matter
of
priority.
A
number
of
studies
have
shown
that
the
outlook
for
pregnant
women
with
cancer
is
as
good
or
better
for
women
who
continue
with
the
pregnancy
as
for
those
who
opt
for
abortion.
Cancer
complicating
pregnancy
endangers
two
lives.
Any
approach
should
look
at
both
maternal
and
foetal
safety.
Maternal
prognosis
will
not
improve
by
terminating
the
pregnancy.
CARDIAC
CONDITIONS
A
number
of
cardiac
conditions
can
cause
complications
during
pregnancy.
Some
of
these
arise
as
a
result
of
the
pregnancy,
others
are
pre‐existing.
Pregnancy
places
considerable
strain
on
the
heart
and
circulation
and
necessitates
marked
cardio‐respiratory
adaptation.
Today,
with
the
exception
of
Eisenmenger’s
Syndrome,
there
is
no
increased
mortality
associated
with
pregnancy
in
congenital
heart
disease.
One
of
the
most
serious
cardiac
conditions
is
Eisenmenger’s
Syndrome
(ES),
a
term
which
covers
12
different
congenital
cardiac
lesions.
ES
in
pregnancy
is
extremely
rare..
In
50
years
(1945‐95)
there
were
151
cases
of
ES
in
pregnancy
recorded
in
the
entire
world.41
The
incidence
of
ES
in
pregnancy
is,
however,
likely
to
increase
as
more
women
with
congenital
heart
39
Stensheim,
H.,
Møller,
B.,
van
Dijk,
T.,
Fosså
SD.,
‘Cause‐specific
survival
for
women
diagnosed
with
cancer
during
pregnancy
or
lactation:
a
registry‐based
cohort
study’
in
Journal
of
Clinical
Oncology,
2009
Jan
1;
27(1):
45‐51.
40
Ref
Dr
HOB
41
Oral
submission
of
Prof
Eamon
O’Dwyer,
May
4,
2000,
Fifth
Progress
Report:
Abortion,
The
All‐Party
Oireachtas
Committee
on
the
Constitution,
A150.
33
A
Response
to
the
Expert
Group
Report
Family
&
Life
problems
survive
to
child‐bearing
age.
This
is
borne
out
by
a
British
study
which
identified
fifteen
cases
in
the
UK
between
1991
and
1995.42
Women
with
ES
have
a
20‐30
per
cent
rate
of
maternal
mortality
(in
Ireland
the
rate
is
at
the
lower
end,
or
even
below
the
lower
end
of
this
scale).
Doctors
are
divided
on
the
question
of
how
best
to
treat
a
pregnant
woman
with
ES.
Some
advocate
abortion
early
in
the
pregnancy
to
spare
the
woman’s
heart
the
pressures
associated
with
pregnancy
and
childbirth.
It
should
be
noted,
however,
that
abortion
does
not
ensure
the
survival
of
the
mother
with
ES.
There
is
a
high
rate
of
maternal
mortality
following
abortion
in
such
cases.43
The
ES
patient
who
becomes
pregnant
faces
a
high
risk
of
dying
as
a
result,
regardless
of
whether
she
chooses
to
give
birth
or
to
undergo
an
abortion.
Maternal
mortality
with
ES
is
30
per
cent.
If
the
woman
chooses
abortion,
the
mortality
rate
is
still
between
10
and
20
per
cent.
It
should
also
be
noted
that
abortion
may
result
in
an
earlier
maternal
death
than
might
otherwise
have
been
the
case.
A
study
of
maternal
deaths
in
Ireland
over
a
period
of
ten
years
concluded
that
none
of
the
women
would
have
been
saved
by
abortion.44
The
largest
samples
of
pregnant
women
with
ES
were
in
a
study
from
Sao
Paolo,
Brazil45
(12
women),
and
one
from
China46
(13
women).
Of
the
twelve
women
in
the
Brazilian
study,
three
died
but
as
a
result
of
complications
that
exacerbated
the
ES.
The
authors
concluded
that
prolonged
bed
rest,
and
the
use
of
heparin
and
oxygen
therapy
had
positively
influenced
maternal
and
infant
outcomes.
Of
the
13
in
the
Chinese
study,
one
had
a
miscarriage
before
28
weeks,
four
were
taken
to
caesarean
section
before
28
weeks
and
eight
(61.5
per
cent)
survived
beyond
28
weeks’
gestation
before
caesarean
section.
One
mother
died
(92.3
per
cent
survival),
while
infant
loss
was
38.5
per
cent.
No
pregnancy
continued
to
term
but
eight
babies
delivered
after
28
weeks
were
born
alive.
Cases
of
ES
should
be
treated
in
specialist
tertiary
referral
centres.
With
proper
management,
women
should
have
60‐80
per
cent
plus
survival
rate,
and
the
foetal
survival
rate
should
exceed
90
per
cent.
42
Yentis,
S.M.,
Steer,
P.J.,
and
Plaat,
F.,
‘Eisenmenger’s
syndrome
in
pregnancy:
maternal
and
fetal
mortality
in
the
1990s’
in
British
Journal
of
Obstetrics
&
Gynaecology
105(8),
August
1998,
921‐922.
43
Why
Mothers
Die:
Report
on
Confidential
Enquiries
into
Maternal
Deaths
in
the
United
Kingdom,
1994
­
1996,
of
seven
deaths,
four
continued
the
pregnancy
and
three
had
abortions.
44
Murphy
J.F.,
and
O’Driscoll,
K.,
‘Therapeutic
Abortion:
The
Medical
Argument’
in
Irish
Medical
Journal
75(8),
August
1982,
304‐6.
45
Avila,
W.S.,
Grinberg,
M.,
Snitcowsky,
R.,
Faccioli,
R.,
Da
Luz,
P.L.,
Bellotti,
G.,
and
Pileggi,
F.,
‘Maternal
and
fetal
outcome
in
pregnant
women
with
Eisenmenger’s
syndrome’
in
European
Heart
Journal
16(,4),
April
1995
460‐4.
46
Wang,
H.,
Zhang,
W.,
and
Liu,
T.,
‘Experience
of
managing
pregnant
women
with
Eisenmenger’s
syndrome:
maternal
and
fetal
outcome
in
13
cases’
in
Journal
of
Obstetrics
and
Gynaecology
Research
37(1),
January
2011,
64‐70.
34
A
Response
to
the
Expert
Group
Report
Family
&
Life
Other
serious
cardiac
conditions
occurring
in
pregnancy
are
very
severe
preeclampsia
and
HELLP
(haemolysis
elevated
liver
enzymes
and
low
platelets)
syndrome,
which
is
a
variant
of
pre‐eclamptic
toxaemia.
The
latter
condition
is
toxic
to
the
baby
and
if
it
occurs
prior
to
viability,
the
baby
is
likely
to
die
in
utero.
ABORTION
AND
MENTAL
HEALTH
The
world
literature
on
abortion
and
women’s
mental
health
has
grown
considerably
over
the
past
few
decades
and
the
scientific
rigour
of
the
published
studies
has
increased
substantially.
The
focus
of
much
of
the
research
has
been
on
the
identification
of
risk
factors
for,
and
the
frequency
of,
post‐abortion
psychological
problems.
44
per
cent
of
Irish
women
who
have
abortions
have
“a
lot
of
regrets”
or
“some
regrets”.47
44
per
cent
of
women
have
some
doubts
about
their
decision
to
abort
upon
confirmation
of
pregnancy.48
46
per
cent
of
women
who
abort
report
a
conflict
of
conscience.49
Scientific
studies
strongly
indicate
that
abortion
significantly
increases
risk
for
depression,
anxiety,
substance
abuse,
and
suicidal
thoughts
and
behaviour.
Scientific
studies
strongly
indicate
that
abortion
significantly
increases
risk
for
depression,
anxiety,
substance
abuse,
and
suicidal
thoughts
and
behaviour.
At
least
20
per
cent
of
women
who
abort
suffer
serious,
prolonged
negative
psychological
consequences.
Abortion
is
associated
with
a
higher
risk
for
negative
psychological
outcomes
compared
to
carrying
to
term
an
unplanned
pregnancy.
The
risk
for
long‐
term
psychological
injury
is
also
considerably
higher
with
abortion
than
with
other
forms
of
perinatal
loss.
A
2008
study
from
New
Zealand50
published
in
the
British
Journal
of
Psychiatry
showed
the
following
increased
risks
associated
with
abortion
compared
to
unintended
pregnancy
carried
to
term:





Suicide
ideation:
61
%
Alcohol
dependence:
188
%
Illicit
drug
dependence:
185
%
Major
depression:
31
%
Anxiety
Disorder:
113
%
Australian
researchers
found
that
women
with
an
abortion
history
had
nearly
twice
the
risk
for
depression
compared
to
women
who
had
not
47
McBride,
O.,
Morgan,
K.,
and
McGee,
H.,
Irish
Contraception
and
Crisis
Pregnancy
Study
2010,
(HSE
/
Crisis
Pregnancy
Programme,
2012)
48
Husfeldt,
C.,
Kierstein
Hansen,
S.,
Lyngberg,
A.,
Nøddebo,
M.,
and
Petersson,
B.,
‘Ambivalence
among
women
applying
for
abortion’
in
Acta
Obstetricia
et
Gynecologica
Scandinavica
74(10)
1995,
813‐817.
49
Kero,
A.,
Högberg,
U.,
Jacobsson,
L.,
and
Lalos,
A.,
‘Legal
abortion:
a
painful
necessity’
in
Social
Science
&
Medicine
53(11),
December
2001,
1481–1490.
50
Fergusson,
D.M.,
Horwood,
L.J,,
and
Boden,
J.M.,
‘Abortion
and
mental
health
disorders:
evidence
from
a
30‐year
longitudinal
study’
in
British
Journal
of
Psychiatry
193(6),
December
2008,
444‐451.
35
A
Response
to
the
Expert
Group
Report
Family
&
Life
aborted.51
Abortion
history
was
further
associated
with
an
almost
three
times
greater
risk
for
illicit
drug
use
and
twice
the
risk
for
an
alcohol
use
disorder.
Two
Norwegian
studies,
using
data
from
a
nationally
representative
sample
of
over
700
women,
also
found
a
link
between
abortion
and
mental
health
problems.52
They
found
that
women
who
aborted
had
increased
risks
of
nicotine
dependence
(400
per
cent
increase),
alcohol
problems
(180
%),
marijuana
use
(360
%),
and
other
illegal
drug
use
(670
%).
They
were
also
nearly
three
times
as
likely
as
their
peers
who
had
not
had
an
abortion
to
report
significant
depression.
A
Chinese
study
of
6,887
women,
3,264
(47.6
per
cent)
of
whom
had
experienced
at
least
one
abortion,
found
that
women
with
a
history
of
induced
abortion
a
year
or
more
previously
were
49
per
cent
more
likely
to
experience
depression
and
114
per
cent
more
likely
to
experience
anxiety
in
the
first
trimester
of
a
subsequent
pregnancy
compared
to
comparable
women
who
had
not
experienced
an
induced
abortion.53
No
differences
were
observed
between
women
with
and
without
a
history
of
pregnancy
loss
through
miscarriage.
A
meta‐analysis
of
studies
published
between
1995
and
2009
found
that
depending
on
the
type
of
comparison
group
employed,
abortion
was
associated
with
a
55
to
138
per
cent
elevated
risk
of
mental
health
problems.
Nearly
10
per
cent
of
the
incidence
of
mental
health
problems
was
found
to
be
directly
attributable
to
abortion.54
Abortion,
Pregnancy
and
Suicide
Abortion
is
a
risk
factor
for
suicide.
A
Finnish
study55
found
that
suicide
following
abortion
was
much
higher
than
that
associated
with
birth.
The
mean
annual
suicide
rate
was
11.3
per
100,000,
the
rate
associated
with
birth
was
5.9;
while
the
rate
associated
with
induced
abortion
was
34.7.
Thus
women
who
have
had
abortions
are
6‐7
times
more
likely
to
commit
suicide.
This
study
also
found
that
those
with
psychiatric
problems
are
more
likely
to
suffer
adverse
effects
from
abortion.
51
Dingle,
K.,
Alati,
R.,
Clavarino,
A.,
Najman,
J.M.,
and
Williams,
G.M.,
‘Pregnancy
loss
and
psychiatric
disorders
in
young
women:
an
Australian
birth
cohort
study’,
in
British
Journal
of
Psychiatry
193,
December
2008,
455‐460.
52
Pederson,
W.,
‘Abortion
and
depression:
A
population‐based
longitudinal
study
of
young
women’,
in
Scandinavian
Journal
of
Public
Health
36(4),
June
2008,
424‐428.
53
Huang,
Z
et
al.,
‘The
impact
of
prior
abortion
on
anxiety
and
depression
symptoms
during
a
subsequent
pregnancy:
Data
from
a
population‐based
cohort
study
in
China’
in
Bulletin
of
Clinical
Psychopharmacology
22(1),
2012,
51‐58.
54
Coleman,
P.K.,
‘Abortion
and
Mental
Health:
A
Quantitative
Synthesis
and
Analysis
of
Research
Published
from
1995‐2009’
in
British
Journal
of
Psychiatry
199(3),
September
2011,
180‐6.
55
Gissler,
M.,
Hemminki,
E.,
Lonnqvist,
J.,
‘Suicides
after
pregnancy
in
Finland
1987‐94:
register
linkage
study’
in
British
Medical
Journal
313
(7070),
December
1996,
1431‐4.
36
A
Response
to
the
Expert
Group
Report
Family
&
Life
Pregnancy,
by
contrast
has,
overall,
a
protective
effect
against
suicide.56
57
A
woman
who
is
pregnant
is
less
likely
to
commit
suicide
than
an
otherwise
comparable
non‐pregnant
woman.
Suicidal
thoughts
are
relatively
common
in
normal
adolescent
girls
and
very
common
in
those
referred
for
psychiatric
treatment.
Actual
suicide
rates,
however,
are
very
low.
While
pregnancy
reduces
the
risk
of
suicide,
it
does
not
eliminate
it.
An
analysis
of
685,511
births
in
Dublin’s
maternity
hospitals
over
the
course
of
31
years
(1980‐2011)
found
that
there
were
79
maternal
deaths,
two
of
which
were
from
suicide
and
both
of
these
were
postpartum.
One
of
the
women
had
a
long
history
of
depression,
while
the
other
had
a
long
history
of
substance
abuse.58
Those
few
who
do
commit
suicide
in
pregnancy
may
not
do
so
because
they
are
pregnant,
but
rather
despite
that
fact.
It
is
often
impossible
to
know,
and
predicting
whether
a
threat
of
suicide
will
be
acted
upon
is
notoriously
difficult.
The
single
greatest
risk
factor
for
suicide
is
clinical
depression.
If
a
depressed
pregnant
woman
is
threatening
suicide,
the
first
course
of
action
should
always
be
to
treat
the
depression.
After
the
X
case
in
1992,
government
advisors
quickly
perceived
that
legislating
for
suicide
as
a
risk
to
the
life
of
the
mother
would
be
a
minefield.
How
would
judges
or
doctors
decide
with
certainty
if
a
threat
of
suicide
posed
a
real
and
substantial
threat
to
the
mother’s
life?
How
could
they
distinguish
between
a
threat
to
the
life
and
a
threat
to
the
health
of
the
mother?
When
is
a
threat
of
suicide
a
symptom
of
mental
illness,
or
merely
an
expression
of
extreme
distress
(which
is
not
a
mental
illness)?
Assessing
the
likelihood
of
someone
carrying
out
a
threat
to
commit
suicide
is
inherently
difficult
and
prone
to
errors
in
the
practice
of
psychiatry.
Is
the
distinction
between
life
and
health
of
the
mother
something
that
can
be
translated
into
legislation
that
the
courts
can
manage?
The
Supreme
Court
in
the
X
Case
heard
no
psychiatric
evidence,
and
many
psychiatrists
were
shocked
with
the
Court’s
reasoning.
Suicidal
thoughts
and
threats
to
take
one’s
own
life
fall
under
the
general
heading
of
mental
health.
But
in
the
field
of
mental
health,
we
are
dealing
with
something
about
which
there
is
little
consensus
and
many
theories
among
the
experts.
It
is
instructive
to
consider
the
experience
of
other
jurisdictions
which
permit
abortion
for
threats
to
mental
health.
In
Britain,
98
per
cent
of
abortions
are
performed
under
Ground
C,
that
“the
continuation
of
the
pregnancy
would
involve
risk,
greater
than
if
the
56
Marzuk,
P.M.,
et
al.
‘Lower
risk
of
suicide
in
pregnancy’
in
American
Journal
of
Psychiatry
154(1),
January
1997,
122‐3.
57
Why
Mothers
Die,
Chapter
12.
58
Prof
Patricia
Casey,
Department
of
Psychiatry,
UCD
/
Mater
Misericordiae
Hospital,
Dublin.
37
A
Response
to
the
Expert
Group
Report
Family
&
Life
pregnancy
were
terminated,
of
injury
to
the
physical
or
mental
health
of
the
pregnant
woman”.
According
to
BPAS
which
prides
itself
as
Britain’s
largest
single
abortion
provider,
“Ground
C
is
often
referred
to
as
‘the
mental
health
clause’,
and
is
perceived
as
the
way
in
which
doctors
certify
abortion
‘on
request’,
or
‘social
abortions’…
It
is
not
the
case
that
the
majority
of
women
seeking
abortion
are
necessarily
at
risk
of
damaging
their
mental
health
if
they
continue
their
pregnancy.
But
it
is
significant
that,
because
of
the
law,
women
and
their
doctors
have
to
indicate
that
this
is
the
case.”59
In
other
words,
as
BPAS
admits,
there
is
no
genuine
risk
to
mental
health
in
most
cases
but,
in
practice,
the
mere
fact
of
not
wanting
to
bear
a
child
is
accepted
as
a
serious
risk
to
a
woman’s
mental
health.
The
Green
Paper
on
Abortion
in
1999
(4.05)
observed:
“Many
countries
permit
abortion
on
mental
health
grounds.
‘Mental
health’
is
generally
interpreted
quite
broadly
and
can
include
distress
arising
from
pregnancy
resulting
from
rape
or
incest
or
from
carrying
a
foetus
where
an
ante‐natal
diagnosis
suggests
a
congenital
impairment.
It
may
also
include
distress
arising
from
social
factors
such
as
income,
career,
number
and
spacing
of
existing
children
or
other
domestic
or
personal
circumstances.”
This
paragraph
taken
from
the
Green
Paper
encapsulates
the
practical
problem
for
judges
and
doctors
when
healthy
women
carrying
healthy
unborn
children
ask
for
an
abortion.
How
is
a
judge
or
doctor
to
decide
if
a
woman’s
mental
state
justifies
an
abortion?
Do
her
unhappiness,
panic,
turmoil
or
threats
to
self‐harm
arise
from
a
serious
mental
disorder,
a
disturbed
mood
brought
on
by
an
unwanted
event
or
a
determination
to
end
her
pregnancy?
In
Britain
and
many
other
countries,
a
woman’s
declaration
that
she
does
not
want
to
have
a
baby
is
enough
to
gain
a
doctor’s
consent.
The
mental
health
ground
has
become
a
carte
blanche
for
abortion
on
request.
This
comes
back
to
the
basic
question
presented
by
the
X
case:
is
there
a
psychiatric
condition
for
which
abortion
is
an
essential
part
of
the
treatment?
In
February
2002
in
the
run‐up
to
the
abortion
referendum
held
that
year,
Professors
Patricia
Casey
and
the
late
Anthony
Clare
strongly
denied
that
abortion
is
required
to
treat
any
psychiatric
condition,
and
is
certainly
not
an
answer
to
a
crisis
pregnancy.
Both
are
on
record
noting
that
psychiatrists
have
great
difficulty
in
deciding
when
a
threat
to
commit
suicide
is
real
or
not.
Given
that
there
was,
at
that
time,
a
low
rate
of
suicide
in
Ireland,
and
that
pregnancy
has
a
life‐protecting
effect
on
the
mother,
they
implied
that
the
certainty
exhibited
by
the
X
Case
psychologist
was
misplaced
and
that
his
opinion,
to
which
the
Court
attached
so
much
weight,
was
actually
without
much
value.
59
www.abortionreview.org/index.php/site/article/963/
38
Pregnancy,
by
contrast
has,
overall,
a
protective
effect
against
suicide…
An
analysis
of
685,511
births
in
Dublin’s
maternity
hospitals…fo
und…
79
maternal
deaths,
two
of
which
were
from
suicide
and
both
of
these
were
postpartum.
A
Response
to
the
Expert
Group
Report
Family
&
Life
Professor
Clare
cited
the
law
in
Bermuda
where
abortion
was
granted
to
women
certified
as
suicidal
by
a
psychiatrist.
It
led
many
mentally‐healthy
women
to
bring
intense
pressure
on
psychiatrists
to
certify
that
they
were
suicidal,
which
was
demeaning
for
both
the
women
and
the
psychiatrists.
If
legislation
was
based
on
the
X
case,
it
seems
likely
that
most
of
the
4,000
Irish
women
who
go
to
Britain
for
abortions
each
year
would
be
deemed
suicidal—which
is
surely
a
nonsense.60
PREGNANCY
RESULTING
FROM
RAPE
In
the
X
case,
it
was
the
fact
that
Miss
X
had
been
raped
that
won
her
so
much
sympathy
and
the
sympathy
of
the
Supreme
Court.
But
abortion
is
not
a
compassionate
response
in
cases
of
pregnancy
resulting
from
rape.
It
is
also
quite
clear
that
abortion
on
grounds
of
rape
is
prohibited
by
the
Irish
Constitution.
The
assumption
that
any
woman
pregnant
as
a
result
of
rape
will
wish
to
abort
her
baby
is
false.
In
many
cases
women
who
have
ready
access
to
abortion
choose
to
keep
the
baby
or
give
it
for
adoption.
A
COMPASSIONATE
RESPONSE
TO
FOETAL
ABNORMALITY
Most
cases
of
neural
tube
defects
such
as
spina
bifida
and
anencephaly
can
be
prevented
by
the
mother
taking
folic
acid
supplements
for
12
weeks
prior
to
conception
or
shortly
after
conception.
In
2003,
the
Food
Safety
Authority
of
Ireland
recommended
the
mandatory
fortification
of
flour
with
folic
acid.
This
recommendation
was
backed
by
a
committee
established
by
the
minister
for
health
to
consider
the
issue.
A
subsequent
Implementation
Group,
however,
advised
that
mandatory
folic
acid
fortification
would
have
no
benefits
for
public
health,
and
the
idea
was
shelved.
Ireland
has
one
of
the
highest
rates
of
neural
tube
defects
in
Europe
and
around
20
babies
die
every
year
from
anencephaly.
Anencephaly
is
the
only
foetal
anomaly
that
is
invariably
fatal.
Down
Syndrome
(Trisomy
21)
and
other
trisomies
are
also
more
prevalent
in
Ireland
than
in
many
other
countries.
This
is
largely
due
to
the
fact
that
in
countries
where
abortion
is
widely
practiced,
babies
with
Down
Syndrome
are
routinely
aborted.
In
England
and
Wales,
for
example,
it
is
estimated
that
around
90
per
cent
of
babies
diagnosed
prenatally
with
DS
are
aborted.
In
2000,
Dr
Peter
McKenna,
Master
of
the
Rotunda
Hospital
gave
a
“guesstimate”
that
50
or
so
Irish
women
seek
abortions
abroad
every
year
because
of
foetal
abnormality.
The
majority
of
these
cases
involve
a
non‐
lethal
condition
such
as
DS.
In
Britain
and
many
other
countries,
a
woman’s
declaration
that
she
does
not
want
to
have
a
baby
is
enough
to
gain
a
doctor’s
consent.
The
mental
health
ground
has
become
a
carte
blanche
for
abortion
on
request.
60
Oral
submission
of
Dr
Anthony
Clare,
May
4,
2000,
Fifth
Progress
Report:
Abortion,
The
All‐Party
Oireachtas
Committee
on
the
Constitution,
A128‐138.
39
A
Response
to
the
Expert
Group
Report
Family
&
Life
Increased
maternal
age
is
a
recognised
risk
factor
for
Down
Syndrome,
and
the
average
age
of
women
having
babies
in
Ireland
continues
to
rise.
In
relation
to
the
handling
of
cases
of
anencephaly,
it
seems
worth
quoting
the
testimony
given
to
the
All
Party
Committee
on
the
Constitution
in
2000
by
Dr
PJK
Conway,
Consultant
Obstetrician
and
Gynaecologist
at
Portlaoise
General
Hospital:
“I
explained
to
both
parents
that
there
was
no
prospect
of
life
and
so
on
and
I
explained
also
that
the
safest
way
for
the
mother
…
the
safest
way
for
her
physical
and
mental
health,
to
manage
her,
was
to
let
the
pregnancy
continue
until
she
went
into
labour
and
delivered
and
that’s
what
happened.
She
delivered
and
her
baby
lived
for
a
couple
of
minutes,
was
baptised
and
she
and
her
husband
held
the
baby
afterwards,
after
the
nurses
had
put
towels
and
so
on,
and
they
took
photographs
of
the
baby.
They
have
a
baby
that
is
theirs,
that
has
a
name,
that
is
buried
and
they
can
visit
the
grave.
They
would
have
no
guilt.
The
people
who
are
more
likely
to
become
depressed
after
an
abortion
…
one
of
the
groups
that
is
at
high
risk
of
depression
after
an
abortion
is
people
who
have
induced
abortions
because
they
have
an
abnormal
baby.
“Most
of
these
abnormal
babies
that
won’t
survive
after
birth
are
picked
up
after
16
weeks,
at
a
time
when
it
is
quite
dangerous
to
induce
abortion
physically.
There
is
a
paper
from
America,
reported
in
the
New
England
Journal
[of
Medicine]
in
1996
which
states
categorically
that
the
maternal
mortality
is
higher
in
those
who
are
induced
to
get
rid—I
am
using
the
term
of
people
who
do
not
want
the
baby—to
get
rid
of
a
baby
who
is
abnormal
than
if
they
are
allowed
to
go
and
have
a
natural
pregnancy
and
a
natural
delivery.”
Since
some
congenital
abnormalities
can
be
prevented,
a
country
like
Ireland,
which
has
a
constitutional
ban
on
abortion,
should
be
pioneering
measures
to
keep
congenital
abnormalities
to
a
minimum.
Irish
doctors
should
aspire
to
achieve
a
low
perinatal
death
rate
from
congenital
abnormalities
without
recourse
to
abortion.
ADVERSE
EFFECTS
OF
ABORTION
ON
WOMEN
Two
studies
published
this
year,
examining
data
from
Denmark,61
62
found
significantly
higher
maternal
death
rates
following
abortion
than
following
delivery.
The
first
study,
which
studied
a
population
of
463,473
Danish
women
who
had
their
first
pregnancy
between
1980
and
2004,
found
that
women
having
abortions
in
the
first
12
weeks
of
pregnancy
were
almost
61
Reardon,
D.,
and
Coleman,
P.,
‘Short
and
long
term
mortality
rates
associated
with
first
pregnancy
outcome:
Population
register
based
study
for
Denmark
1980–2004’
in
Medical
Science
Monitor
18
(9),
2012,
71‐76.
62
Coleman,
P.,
Reardon,
D.,
Calhoun,
B.,
‘Reproductive
history
patterns
and
long‐term
mortality
rates:
a
Danish,
population‐based
record
linkage
study’
in
European
Journal
of
Public
Health,
published
online
September
5,
2012.
40
A
Response
to
the
Expert
Group
Report
Family
&
Life
twice
as
likely
to
die
in
the
first
180
days
than
those
who
carried
their
pregnancies
to
term
but
the
risk
of
death
for
those
having
late
abortions
was
even
higher.
Women
having
abortions
after
twelve
weeks
were
more
than
four
times
more
likely
to
die
in
the
first
year
than
those
having
normal
deliveries.
The
second
study
found
increased
risks
of
death
of
45,
114
and
191
per
cent
for
1,
2
and
3
abortions,
respectively,
compared
with
no
abortions
after
controlling
for
other
reproductive
outcomes
and
last
pregnancy
age.
In
2011,
a
group
of
Irish
women
who
had
suffered
as
a
consequence
of
abortion
came
together
to
form
Women
Hurt.
Their
objective
was
to
raise
awareness
of
the
harm
that
abortion
does
to
women.
A
2002
study
from
the
United
States63
which
examined
a
population
of
173,279
women
in
California
who
had
an
induced
abortion
or
a
delivery
in
1989
and
were
linked
to
death
certificates
from
1989
to
1997.
It
found
that
women
who
had
abortions
were
at
a
62
per
cent
increased
risk
of
death
from
all
causes
within
the
timeframe
considered.
Abortion
has
also
been
shown
to
have
adverse
effects
on
the
mental
health
of
women.
As
discussed
above,
it
is
a
risk
factor
for
suicide.
A
Finnish
study64
found
that
women
who
have
had
abortions
are
6‐7
times
more
likely
to
commit
suicide.
This
study
also
found
that
those
with
pre‐existing
psychiatric
problems
are
more
likely
to
suffer
adverse
effects
from
abortion.
IRISH
WOMEN
SEEKING
ABORTION
ABROAD
Practically
all
of
the
abortions
performed
on
Irish
women
abroad
are
for
non‐health
related
reasons.
There
is
no
evidence
that
any
of
the
abortions
on
Irish
women
in
Britain
are
on
X
Case
grounds.
The
vast
majority
are
performed
under
Ground
C,
the
so‐called
“social
clause”,
that
“the
continuation
of
the
pregnancy
would
involve
risk,
greater
than
if
the
pregnancy
were
terminated,
of
injury
to
the
physical
or
mental
health
of
the
pregnant
woman”.
This
is
widely
recognised
as
facilitating
abortion
on
demand,
subject
to
the
24‐week
limit.
A
very
small
number
of
British
abortions
on
Irish
women
are
on
the
basis
of
the
baby’s
disability,
which
is
also
outside
the
scope
of
the
X
Case.
The
number
of
Irish
women
obtaining
abortions
in
Britain
has
declined
every
year
for
the
past
ten
years.
This
welcome
trend
is
a
result
of
increased
support
and
education,
helping
women
in
crisis
pregnancy
situations
to
choose
alternatives
to
abortion.
The
fact
that
something
is
legal
in
a
nearby
state
is
no
argument
for
legalising
it
in
Ireland.
Nobody
argues
for
the
legalisation
of
harmful
drugs
on
the
basis
that
they
are
legally
available
in
Holland.
63
Reardon,
D.,
et
al.,
‘Deaths
Associated
With
Pregnancy
Outcome’
in
Southern
Medical
Journal
95
(8),
August
2002,
834‐841.
64
Gissler,
et
al.
41
A
Response
to
the
Expert
Group
Report
Family
&
Life
In
England
and
Wales,
the
number
of
abortions
rose
steadily
following
the
passage
of
the
Abortion
Act.
Today,
one
in
19
Irish
pregnancies
ends
in
abortion
(in
Britain).
If
abortion
were
to
be
legalised
in
Ireland
there
is
no
reason
to
suppose
that
the
rate
would
not
move
dramatically
closer
to
that
in
Britain,
where
one
in
five
pregnancies
ends
in
abortion.
British
legislators
claimed
the
Abortion
Act
in
1967
was
only
for
“hard
cases”,
and
would
be
strictly
policed.
In
1968
there
were
22,332
abortions
in
England
and
Wales:
by
1972
the
number
was
108,000.
In
2011,
in
England,
Scotland
and
Wales,
there
were
over
200,000
abortions.
Today
in
Britain,
one
in
every
five
pregnancies
ends
in
abortion.
There
is
no
evidence
that
any
of
the
abortions
on
Irish
women
in
Britain
are
on
X
Case
grounds.
The
vast
majority
are
performed
under
Ground
C,
the
so­called
“social
clause”.
42
A
Response
to
the
Expert
Group
Report
Family
&
Life
CONCLUSION
The
Irish
government
has
an
obligation,
imposed
by
the
European
Court
of
Human
Rights,
to
provide
greater
clarity
as
to
when
a
pregnancy
may
be
terminated
in
the
course
of
providing
life‐saving
medical
treatment.
The
ECHR
requires
procedures
that
are
“effective
and
accessible”,
but
made
no
stipulation
as
to
what
the
legal
status
of
those
procedures
should
be.
The
government's
Expert
Group
laid
out
some
of
the
options
in
its
report,
but
assumed
that
these
must
be
within
the
constraints
imposed
by
the
X
Case
decision.
It
did
not
consider
the
possibility,
undoubtedly
available,
of
recasting
the
X
Case
criteria
by
way
of
constitutional
amendment.
Constitutional
change
backed
up
by
legislation
would
allow
for
clarification
along
lines
that
would
be
broadly
acceptable.
It
would
have
the
advantage
of
excluding
the
contentious
suicide
grounds
which
would
lead
to
abortion
on
request.
This
assessment
is
based
on
the
experience
of
every
other
country
which
has
attempted
to
introduce
“restrictive”
abortion
laws
allowing
suicide
grounds.
There
is
a
possibility
that,
at
some
future
point
in
time,
the
Supreme
Court
might
avail
of
an
opportunity
to
modify
its
X
Case
jurisprudence.
Such
a
possibility,
however,
is
uncertain
and
thus
does
not
provide
a
satisfactory
basis
for
a
plan
of
action.
In
formulating
a
plan,
it
is
essential
that
the
scientific
research
conducted
since
1992
be
taken
into
account.
This
further
undermines
the
acceptability
of
taking
the
X
Case
test
as
a
basis
for
legislation.
If,
as
the
government
claims,
it
does
not
want
abortion
on
demand
in
Ireland,
it
is
particularly
important
to
note
trends
in
other
countries.
In
every
country
where
it
has
been
legalised,
even
under
allegedly
very
restrictive
conditions,
the
incidence
of
abortion
has
expanded
dramatically.
In
Britain,
David
Steel,
the
sponsor
of
the
1967
Abortion
Act,
said
his
legislation
was
intended
to
be
restrictive.
“We
want
to
stamp
out
the
backstreet
abortions,”
he
said,
“but
it
is
not
the
intention
of
the
promoters
of
the
Bill
to
leave
a
wide‐open
door
for
abortion
on
request.”
What
is
needed
is
simply
secure
legal
clarification
that
the
existing
practice
of
Irish
doctors
is
legal
and
that
the
direct
destruction
of
an
unborn
child
is
unlawful.
The
bruising
battles
of
the
past
warn
us
that
an
amendment
to
the
Constitution
is
not
something
that
should
be
sought
lightly.
It
is
clear,
however,
that
due
to
the
perversity
of
the
X
Case
judgement,
only
an
amendment
to
the
Constitution
will
facilitate
acceptable
legislation
on
abortion
in
Ireland.
The
wishes
of
the
Irish
People
on
so
fundamental
an
issue
must
be
respected.
This
requires
a
properly
structured
process
of
public
consultation,
followed
by
a
referendum
in
which
the
People
would
determine
how
the
government
should
proceed.
The
purpose
of
a
further
amendment
should
be
to
restore
the
effect
of
Article
40.3.3
to
what
was
intended
by
the
People
when
they
approved
it.
This
is
why
Family
&
Life
is
in
favour
of
such
an
amendment.
43
A
Response
to
the
Expert
Group
Report
Family
&
Life
APPENDIX
I:
THE
DEFINITION
OF
‘ABORTION’
One
of
the
problems
in
any
discussion
about
abortion,
particularly
in
relation
to
constitutional
amendment
or
statute
legislation,
is
the
absence
of
an
agreed
understanding
of
what
exactly
the
word
“abortion”
means.
Words
can
change
their
meaning
over
time
and
acquire
new
associations
and
uses,
and
in
order
to
have
a
meaningful
discussion,
it
is
important
to
have
an
agreed
understanding
of
what
a
word
means
in
the
context
of
that
discussion.
For
example,
take
the
word
“termination”.
Forty
years
ago,
it
signified
the
ending
of
any
process
or
activity.
During
the
past
few
decades
“termination”
(of
pregnancy)
has
been
adopted
as
a
euphemism
for
an
induced
abortion,
even
entering
the
language
of
legislation,
as
in
the
1995
Regulation
of
Information
(Services
outside
the
State
for
Termination
of
Pregnancies)
Act.
We
know
that
every
pregnancy
is
terminated
when
a
baby
is
born,
but
that
is
not
how
the
word
is
used
today.
It
is,
or
should
be,
immediately
clear
from
the
context
what
a
speaker
or
writer
means
when
he
speaks
of
a
“termination”.
Since
1982
when
the
pro‐life
amendment
became
an
issue
of
national
debate
in
the
Republic
of
Ireland,
the
word
“abortion”
has
generally
been
used
to
refer
to
one
thing:
induced
abortion
or
the
deliberate
and
direct
killing
of
an
unborn
child.
However,
a
doctor
or
obstetrician
may
use
the
word
“abortion”
in
a
more
general
sense,
to
refer
to
the
loss
of
a
child
in
and
from
the
womb,
be
it
unintended
or
intended.
In
medical
circles,
the
word
is
frequently
used
in
a
broad
or
generic
manner.
For
example,
a
spontaneous
miscarriage
may
be
classed
as
an
aborted
pregnancy.
Since
the
word
“abortion”
has
several
meanings,
it
is
vital
to
distinguish
the
one
meaning
under
discussion
from
others
to
avoid
misunderstanding
and
confusion.
Unfortunately,
Irish
legislators,
as
well
as
the
range
of
participants
in
public
debates,
have
been
unable
to
arrive
at
an
acceptable
proposal
on
the
isssue
of
abortion,
due
largely
to
their
inability
to
arrive
at
a
clear
and
accurate
shared
definition
of
abortion
in
the
context
of
today’s
controversy.
The
Problem
of
a
Broad
Definition
Back
in
1992,
in
the
aftermath
of
the
X
Case,
the
then
Taoiseach
Albert
Reynolds
proposed
a
referendum
on
the
“substantive
issue”
to
restore
clarity
to
the
meaning
of
Article
40.3.3.
The
wording
of
his
amendment
had
two
aims,
one,
to
remove
the
threat
of
suicide
as
a
justification
for
abortion,
and,
two,
to
remove
any
doubt
about
the
legality
of
current
medical
practice
in
Ireland’s
maternity
hospitals.
Unfortunately,
the
wording
to
allow
the
“the
termination
of
pregnancy
when
it
is
necessary
to
save
the
mother’s
life”
was
hugely
ambiguous
and
too
broad.
This
grave
lack
of
precision
made
it
obvious
that
the
amendment,
if
passed,
would
have
permitted
direct
and
intended
abortion
as
well
as
an
accepted
medical
intervention
to
save
the
mother
and,
if
possible,
baby.
44
A
Response
to
the
Expert
Group
Report
Family
&
Life
Since
those
wanting
to
legalise
abortion
favoured
the
suicide
justification,
the
proposed
amendment
was
defeated
by
the
combined
opposition
of
both
pro‐lifers
and
pro‐abortionists.
Later,
the
same
lack
of
precision
was
evident
in
the
Green
Paper
on
Abortion
(1999).
It
listed
a
number
of
options
from
which
the
government
could
choose.
The
first
was
“an
absolute
constitutional
ban
on
abortion”,
but
this
would,
its
authors
claimed,
prohibit
certain
medical
treatments
currently
performed,
and
would
remove
legal
protection
from
doctors
treating
certain
disorders
during
pregnancy.
Once
you
accept
a
definition
of
abortion
so
broad
that
it
covers
such
very
different
things,
you
cannot
support
a
complete
ban
on
abortion.
In
2000,
the
All‐Party
Oireachtas
Committee
on
the
Constitution
held
hearings
in
May
and
July,
and
produced
the
Fifth
Progress
Report:
Abortion
later
in
the
year.
It
soon
became
clear
that
the
members
of
this
committee
had
the
same
problem
arising
out
of
an
overly
broad
definition
of
abortion,
in
spite
of
the
efforts
of
a
number
of
prominent
obstetricians
to
explain
to
them
the
difference
between
a
direct
abortion
and
the
accepted
treatment
of
certain
medical
conditions.
Some
members
of
the
Committee
even
claimed
that
it
is
impossible
to
recognise
the
distinction
between
“direct
and
indirect
abortion”
and
to
express
it
in
legal
terminology.
If
you
define
abortion
broadly
as
“the
ending
of
a
pregnancy
before
the
child/foetus
is
viable”,
you
arrive
at
the
ridiculous
conclusion
that
abortions
have
being
taking
place
in
Irish
hospitals
for
decades,
and
there
is
no
difference
between
what
an
obstetrician
does
for
a
woman
with
an
ectopic
pregnancy
and
what
an
abortionist
does
in
a
Marie
Stopes
clinic.
The
difference
between
the
actions
of
an
obstetrician
who
wants
to
save
both
mother
and
child
and
an
abortionist
who
acts
deliberately
to
end
the
life
of
the
unborn
child
should
be
obvious
to
all,
but
expressing
the
difference
in
clear
language
seems
to
be
a
major
problem
for
Irish
legislators.
Some
of
the
obstetricians
were
deeply
frustrated
by
the
absence
of
a
clear
definition.
Dr
Alistair
McFarlane
believed
that
those
who
insisted
on
a
“broad
definition”
of
abortion
favoured
its
introduction
in
Ireland,
while
those
who
looked
for
a
strict
definition
were
against
abortion.
“There
can’t
be
an
outright
ban
if
you
use
the
word
‘abortion’
in
a
very
broad
sense
to
include
everything
like
ectopic
pregnancy…”
Their
suggestions
were
shown
to
be
correct
by
Professor
Walter
Prendiville’s
oral
submission
implying
that
Irish
doctors
already
perform
“abortions”
in
maternity
hospitals.
Dr
Michael
Darling
stated,
“I
think
the
removal
of
any
pregnancy
would
be
an
abortion”
and
called
any
distinction
a
“fudge”.
The
Source
of
Confusion
The
word
“abortion”,
dating
from
the
16th
century,
belonged
to
the
world
of
biology
and
medical
textbooks
up
to
the
mid‐20th
century,
and
its
use
45
A
Response
to
the
Expert
Group
Report
Family
&
Life
covered
a
number
of
different
things.
When
doctors
use
the
word
“abortion”,
they
might
be
referring
to
(a)
a
miscarriage
or
a
spontaneous
loss
of
a
foetus,
(b)
the
removal
from
the
womb
of
the
baby’s
dead
body,
(c)
the
killing
(and
removal)
of
a
living
baby
in
the
womb,
or
(d)
the
unintended
death
of
a
baby
consequent
to
the
provision
of
a
necessary
medical
treatment
to
an
expectant
mother.
Medical
textbooks
focus
on
describing
what
takes
place
and
what
a
surgeon
causes
to
happen.
They
are
not
written
for
judges,
ethicists
or
legislators,
and
do
not
raise
questions
about
the
“why”
of
such
events—why
it
happened
or
who,
if
anyone,
caused
it
and
what
was
the
motive
of
the
surgeon.
All
four
uses
of
the
word
have
something
in
common:
a
living
unborn
baby
dies
and
his
body
passes
out
of
the
mother’s
womb.
Dr
Declan
Keane,
Master
of
the
National
Maternity
Hospital,
Holles
Street,
Dublin,
expressed
a
conservative
medical
view
in
2000,
noting
that,
“...
it
is
critical
always,
whenever
anyone
is
discussing
any
topic,
to
define
what
one
means
by
it.
In
the
medical
profession
we
have
always
defined
–
and
in
the
clinical
textbooks
–
an
abortion
as
a
pregnancy
that
is
lost
in
the
first
trimester
of
pregnancy.
It
is
unfortunate
that
the
term
‘abortion’,
certainly
in
the
lay
press,
has
become
synonymous
with
the
termination
of
pregnancy
induced
by
a
variety
of
means.
But,
as
I
say,
an
abortion
is
a
pregnancy
lost
in
the
first
trimester
of
pregnancy,
which
is
up
to
fourteen
weeks.”
The
first
and
second
uses
are
not
relevant
to
the
current
debate.
The
problem,
then,
is
to
clarify
the
ethical
and
legal
difference
between
©
and
(d),
something
that
is
outside
the
scope
of
medical
textbooks.
In
the
case
under
discussion,
it
is
true
that
two
actions
may
have
an
identical
physical
result—the
death
of
an
unborn
child.
Does
this
mean
that
the
actions
are
morally
and
legally
the
same?
In
one
case,
the
intention
of
the
doctor
is
to
save
the
mother’s
life
and,
if
at
all
possible,
the
baby’s;
in
the
other,
the
only
desired
outcome
is
the
death
of
the
baby.
In
one
case,
the
baby
may
die
from
the
mother’s
illness
and/or
the
doctor’s
efforts
to
treat
that
illness;
in
the
second
the
baby
dies
as
a
direct
and
intended
result
of
the
abortionist’s
action.
The
principle
of
double
effect
(see
Appendix
II
below)
has
long
been
used
to
distinguish
between
cases
of
this
sort
and
to
provide
an
ethical
guide.
In
essence,
this
principle
indicates
that
it
is
permissible
to
“allow”
or
permit
an
evil
to
result
from
an
act
that
is
not
itself
intrinsically
evil
provided
that
this
evil
effect
is
not
intended
either
as
end
or
as
means
and
that
there
is
a
“proportionate
reason”
for
“permitting”
or
“allowing”
the
evil
effect.
The
Crucial
Distinction:
Intention
Some
have
argued
that
the
principle
of
double
effect
is
irrational
and
arbitrary
and
should
have
no
place
in
legislation.
Advocates
of
euthanasia,
for
example,
claim
that
there
is
no
difference
between
a
doctor
actively
46
A
Response
to
the
Expert
Group
Report
Family
&
Life
killing
or
“assisting”
someone
to
die
and
the
giving
of
sedation
to
relieve
pain
when
the
painkilling
drugs
may
hasten
death.
Advocates
of
legal
abortion
also
argue
that
there
is
no
difference
between
an
abortion
and
the
treatment
of
a
tubal
pregnancy.
Yet,
laws
in
every
country
recognise
that,
while
two
actions
may
have
identical
consequences,
they
are
distinguished
in
the
first
place—ethically
and
legally—
by
the
agent’s
intention.
The
requirement
that,
for
the
prosecution
of
a
crime,
there
be
mens
rea,
an
awareness
of
the
fact
that
certain
conduct
is
criminal,
and
an
intent
to
commit
such
conduct,
makes
this
clear.
The
classic
example
is
that
of
killing
in
self‐defence.
Similarly,
a
motorist,
temporarily
blinded
by
the
sun,
may
kill
a
pedestrian,
but
his
action
is
very
different
from
a
driver
who
deliberately
sets
out
to
drive
his
vehicle
at
a
pedestrian.
The
first
action
is
manslaughter,
the
second
murder.
The
abortionist’s
intention
from
the
start
is
to
end
the
life
of
the
unborn
child,
while
the
obstetrician’s
intention
treating
a
pregnant
woman
is
to
preserve
the
lives
of
both
mother
and
child.
It
may
be
that,
due
to
the
immaturity
of
the
unborn
child,
his
life
cannot
be
preserved
in
the
context
of
his
mother’s
treatment,
as,
for
example,
when
a
doctor
removes
a
mother’s
cancerous
womb.
Were
the
child
viable,
every
effort
would
be
made
to
preserve
his
life
in
a
neo‐natal
unit.
Abortionists
do
not
make
use
of
neo‐natal
units.
The
limitations
of
what
it
is
possible
for
doctors
to
do
is
recognised
in
the
wording
of
the
1983
amendment,
which
obliges
the
State
to
defend
the
right
to
life
of
the
unborn
“as
far
as
practicable”.
There
is
a
very
big
difference
between
being
unable
to
protect
the
life
of
the
unborn
and
deliberately
acting
to
extinguish
the
life
of
the
child.
In
jurisdictions
where
a
liberal
abortion
law
applies,
doctors
often
take
the
“easy
option”
when
a
pregnant
woman
is
in
danger.
They
first
abort
the
child
and
then
treat
the
mother.
This
is
in
no
way
evidence
that
induced
abortion
is
a
necessary
part
of
a
treatment
for
a
mother’s
illness,
or
that
it
aids
the
mother’s
recovery.
The
term,
“induced
or
procured
abortion”
is
more
useful
than
the
ambiguous
“termination
of
pregnancy”
or
just
“abortion”.
Something
induced
or
procured
expresses
the
two
essential
elements,
the
intention
of
the
agent,
and
the
directness
of
the
action
to
extinguish
the
life
of
the
child,
so
that,
should
a
living
baby
be
born,
the
action
would
be
a
failed
abortion.
Induced
abortion
requires
the
intention
to
kill
the
baby.
The
obstetrician’s
intervention
may
lead
to
the
death
of
the
child;
but
the
abortionist’s
is
designed
to
kill
the
baby.
It
should
noted
that
the
X
Case
allowed
direct
abortion
of
the
unborn
child
(not
the
mere
ending
of
the
pregnancy).
This
is
something
that
is
contrary
to
justice
and
at
odds
to
the
basic
right
to
life
recognised
in
Article
40.3.3.
47
A
Response
to
the
Expert
Group
Report
Family
&
Life
APPENDIX
II:
THE
PRINCIPLE
OF
DOUBLE
EFFECT
The
Principle
of
Double
Effect
is
widely
applied
in
ethical
and
legal
cases
where
an
action
has
two
results,
one
good
and
a
second
bad.
For
this
principle
to
apply,
four
conditions
must
be
fulfilled:
a.
The
action
must
be
a
good
action,
or
at
least
not
bad.
b.
The
good
result
must
not
follow
by
means
of
the
bad
result.
c.
The
bad
result
must
not
be
sought
but
merely
permitted
for
the
good
result.
d.
There
must
be
a
grave
reason
for
allowing
the
bad
result.
An
example
that
illustrates
the
application
of
this
principle
is
the
case
of
a
pregnant
mother
with
cancer.
When
a
woman
is
diagnosed
with
invasive
cancer
of
the
womb,
the
usual
treatment
is
to
remove
the
womb
immediately.
Should
she
be
in
early
pregnancy,
her
unborn
child
will
necessarily
die
as
a
result.
b.
The
surgical
action,
the
removal
of
a
life‐threatening
tumour,
is
good.
The
same
treatment
is
given
to
a
woman,
whether
she
be
pregnant
or
not.
Unfortunately,
in
the
case
of
an
early
pregnancy,
the
loss
of
the
baby’s
life
is
inevitable,
but
it
is
outside
the
scope
of
the
surgeon’s
intention.
c.
The
life‐saving
action,
that
is,
the
removal
of
the
cancerous
tumour,
is
not
dependent
on
the
death
of
the
baby.
If
he
were
mature
enough,
he
would
be
kept
alive
in
an
intensive
care
unit.
d.
Neither
the
mother
nor
the
surgeon
seek
the
death
of
the
baby.
It
is
seen
as
a
tragic
event
by
both.
e.
Womb
cancer
is
often
swift
and
life‐threatening
and
requires
immediate
action.
In
the
case
of
induced
abortion,
a.
The
action
is
bad
since
it
is
the
deliberate
destruction
of
an
innocent
human
life.
b.
The
desired
result,
namely
the
ceasing
of
the
pregnancy,
comes
directly
from
this
bad
action,
the
death
of
the
baby.
c.
The
death
of
the
baby
is
intended
by
mother
and
abortionist.
d.
There
is
no
medical
justification
for
direct
abortion.
We
should
note
in
passing
that
the
sort
of
arguments
used
to
equate
induced
abortion
with
medical
intervention,
as
described
in
the
above
examples,
are
often
used
in
other
contexts
as
well.
In
Vacco
v.
Quill,
a
case
that
came
before
the
United
States
Supreme
Court
in
1997,
euthanasia
campaigners
attempted
to
have
heavy
sedation
of
terminally‐ill
patients
described
as
“slow
euthanasia”.
They
refused
to
make
the
distinction
required
by
the
principle
48
A
Response
to
the
Expert
Group
Report
Family
&
Life
of
double
effect,
labelling
it
as
“medical
jargon”
and
accused
the
medical
profession
of
self‐deception.
The
nine
justices
were
unanimous
that
this
stance
was
wrong
in
law,
that
the
distinction
is
common
in
American
law,
and
dismissed
the
case.
In
2000,
the
Institute
of
Obstetricians
and
Gynaecologists
stated
that
“we
consider
that
there
is
a
fundamental
difference
between
abortion
carried
out
with
the
intention
of
taking
the
life
of
the
baby…
and
the
unavoidable
death
of
the
baby
resulting
from
essential
treatment
to
protect
the
life
of
the
mother.”65
65
Written
submission
of
The
Institute
of
Obstetricians
and
Gynaecologists,
29
February,
2000,
Fifth
Progress
Report:
Abortion,
The
All‐Party
Oireachtas
Committee
on
the
Constitution,
A407.
49
A
Response
to
the
Expert
Group
Report
Family
&
Life
APPENDIX
III:
TERMS
OF
REFERENCE
OF
THE
EXPERT
GROUP
On
November
29,
2011,
the
Government
approved
the
establishment
of
the
Expert
Group
with
the
following
terms
of
reference:
1.
To
examine
the
A,
B
and
C
v
Ireland
judgment
of
the
European
Court
of
Human
Rights;
2.
To
elucidate
its
implications
for
the
provision
of
health
care
services
to
pregnant
women
in
Ireland;
3.
To
recommend
a
series
of
options
on
how
to
implement
the
judgment
taking
into
account
the
constitutional,
legal,
medical,
and
ethical
considerations
involved
in
the
formulation
of
public
policy
in
this
area
and
the
over‐riding
need
for
speedy
action.
The
members
of
this
Expert
Group
were
announced
on
January
13,
2012
and
were
requested
to
report
back
to
the
minister
within
six
months.
The
Group’s
report
was
finally
delivered
to
the
Department
of
Health
on
November
14,
2012,
and
was
published
on
November
27.
50
A
Response
to
the
Expert
Group
Report
Family
&
Life
APPENDIX
IV:
THE
REPORT
OF
THE
EXPERT
GROUP
ON
ABORTION
The
following
observations
seem
relevant
in
assessing
the
merits
of
the
Expert
Group’s
Report.
The
Group
made
the
unwarranted
assumption
that,
in
laying
out
the
options
available
for
complying
with
the
requirements
of
the
ABC
judgement,
it
was
limited
to
options
which
would
give
effect
to
existing
constitutional
provisions
including
the
X
Case.
Nothing
in
the
Group’s
terms
of
reference
or
the
judgement
of
the
European
Court
of
Human
Rights
imposed
such
a
limitation.
An
insight
into
the
Group’s
view
of
the
X
Case
is
given
by
the
curious
claim
(p.7)
that
the
X
Case
“did
not
alter
or
extend
the
law
on
abortion
in
Ireland.
The
right
in
question
already
exists
and
has
done
since
the
enactment
of
the
amendment
in
Article
40.3.3˚
of
the
Constitution
and
indeed
in
the
law
before
that.”
A
similar
view
is
represented
later
(p.26),
in
the
claim
that
giving
effect
to
the
X
Case
“could
not
be
considered
to
involve
significant
detriment
to
the
Irish
public,
since
it
would
amount
to
rendering
effective
a
right
already
accorded,
after
referendum,
by
Article
40.3.3˚
of
the
Constitution.”
The
Group
also
seemed
to
ignore
its
terms
of
reference
in
that
there
is
no
evidence
that
it
gave
consideration
to
the
ethical
considerations,
as
it
was
mandated
to
do.
The
Report,
in
outlining
the
need
for
an
appeals
mechanism,
envisages
this
as
being
purely
a
one‐way
process.
Decisions
to
refuse
a
termination
of
pregnancy
can
be
appealed,
but
decisions
in
favour
of
termination
cannot
be
appealed,
even
if
this
seems
warranted
to
vindicate
the
right
to
life
of
the
unborn.
Its
requirement
that
“the
body
must
be
independent
and
free
of
bias”,
is,
prima
facie,
unobjectionable,
but
this
should
not
be
used
as
a
basis
for
excluding
pro‐life
doctors
on
grounds
of
perceived
“bias”.
Pro‐life
doctors
should
also
be
protected
from
a
minimalistic
interpretation
of
the
right
to
conscientious
objection,
such
as
the
Report
advocates.
A
doctor
who
has
a
conscientious
objection
to
performing
what
he
judges
to
be
an
unethical
procedure,
will
have
a
similar
objection
to
referring
to
a
doctor
“who
is
not
a
conscientious
objector”
(p.43)
for
the
same
unethical
procedure.
It
is
perhaps
telling
that
the
Report
envisages
the
authorisation
of
procedures
that
doctors
are
likely
to
consider
incompatible
with
their
consciences.
The
Report
misconstrues
the
judgement
of
the
Supreme
Court
in
R
v.
R
(note
40,
p.28).
The
Court
was
not
considering
what
protection
might
be
afforded
unimplanted
embryos
“under
the
Constitution”
as
a
whole,
but
only
under
Article
40.3.3.
Several
of
the
Justices
made
this
point
explicitly.
51
A
Response
to
the
Expert
Group
Report
Family
&
Life
The
Report
misrepresents
the
referenda
of
1992
and
2002
when
it
claims
that
the
principle
that
a
threat
of
suicide
formed
a
legitimate
basis
for
abortion
“was
upheld
in
two
subsequent
referendums
on
the
issue.”
Most
significantly,
the
Report,
perhaps
unwittingly,
demonstrates
why
the
X
Case
judgement
is
so
deeply
flawed,
so
that
devising
acceptable
and
effective
legislation
based
upon
it
is
impossible.
The
following
scenario,
which
the
Report
envisages,
will
make
that
clear.
Consider
the
case
of
a
physically
healthy
woman,
26
–
30
weeks
pregnant,
who
is
judged
to
be
entitled
to
a
termination
of
pregnancy
on
the
basis
of
a
threat
of
suicide.
The
Report
sets
up
a
situation
where
an
obstetrician
who,
under
one
option,
might
not
even
be
involved
in
the
decision,
would
be
expected
to
terminate
the
pregnancy
by
inducing
delivery.
In
other
jurisdictions
where
no
fundamental
value
is
attached
to
the
life
of
the
unborn,
the
baby
would
be
deliberately
killed
before
the
removal
of
his
or
her
body
from
the
mother’s
womb.
The
Report
is
clear,
however,
that,
under
Article
40.3.3
as
interpreted
in
the
X
Case,
the
woman
“may
have
a
right
to
have
the
pregnancy
brought
to
an
end
but
not
a
right
to
insist
that
the
life
of
the
foetus
be
deliberately
ended”
(p.
28).
The
Report
also
states
(p.
37),
that
“[c]onsistent
with
the
State’s
obligation,
as
far
as
practicable,
to
defend
and
vindicate
the
right
to
life
of
the
unborn,
terminations
at
the
fringes
of
viability
…
[should
be
carried
out]
…
in
a
manner
as
to
maximise
the
foetal
chances
of
survival”.
The
obstetrician
in
this
case
would
thus
be
faced
with
a
mother
who
is
physically
healthy
and
a
baby
who
is
perfectly
healthy,
but
in
the
early
stages
of
viability.
If
the
obstetrician
induces
delivery,
the
baby
will
suffer
all
the
problems
associated
with
extreme
prematurity
which
doctors
would
then
have
to
deal
with,
being
legally
obliged
to
make
every
effort
to
save
the
baby’s
life.
It
seems
unlikely
that
there
is
an
obstetrician
in
the
country
who
would
consider
inducing
delivery
in
such
circumstances
to
be
an
ethical
course
of
action.
In
addition
to
the
ethical
concerns,
doctors
will
be
conscious
of
the
likelihood
that
if
the
baby
suffers
serious
disability,
he
or
she
is
likely
to
sue
those
responsible
for
substantial
damages.
In
its
description
of
the
ABC
Case,
the
report
outlines
the
position
of
the
Irish
State
presented
to
the
Court.
It
notes
that
the
State
argued
that
the
application
should
be
deemed
inadmissible
due
to
the
failure
of
the
applicants
to
exhaust
domestic
remedies.
It
entirely
ignores,
however,
the
fact
that
Counsel
for
the
Attorney
General
defended
Ireland’s
abortion
laws
on
the
basis
that
they
reflected
“profound
moral
values
embedded
in
Irish
society”.
The
Report,
while
listing
it
as
an
option,
suggests
that
a
solution
based
on
new
guidelines
within
existing
legislation
would
not
be
acceptable
to
the
Council
of
Ministers.
It
offers
no
support
for
this
assertion.
The
requirement
of
the
ECHR
was
for
procedures
that
are
“effective
and
accessible”,
it
made
no
stipulation
as
to
what
the
legal
status
of
those
procedures
should
be.
52
A
Response
to
the
Expert
Group
Report
Family
&
Life
APPENDIX
V:
DUBLIN
MATERNAL
HEALTHCARE
DECLARATION
ON
“As
experienced
practitioners
and
researchers
in
Obstetrics
and
Gynaecology,
we
affirm
that
direct
abortion
‐
the
purposeful
destruction
of
the
unborn
child
‐
is
not
medically
necessary
to
save
the
life
of
a
woman.
“We
uphold
that
there
is
a
fundamental
difference
between
abortion,
and
necessary
medical
treatments
that
are
carried
out
to
save
the
life
of
the
mother,
even
if
such
treatment
results
in
the
loss
of
life
of
her
unborn
child.
“We
confirm
that
the
prohibition
of
abortion
does
not
affect,
in
any
way,
the
availability
of
optimal
care
to
pregnant
women.”
This
declaration
was
signed
by
over
100
health
professionals
in
Dublin
on
September
8,
2012.
53
A
Response
to
the
Expert
Group
Report
Family
&
Life
APPENDIX
VI:
INTERNATIONAL
LAW
Examples
of
UN
treaty
monitoring
bodies
pressuring
Ireland
to
liberalize
abortion
laws
CEDAW
Committee
(monitors
the
Convention
for
the
Elimination
of
Discrimination
Against
Women)
General
Recommendation
19,
Violence
Against
Women
01/29/1992
UN
Document
A/47/38
24.
(m)
States
parties
should
ensure
that
measures
are
taken
to
prevent
coercion
in
regard
to
fertility
and
reproduction,
and
to
ensure
that
women
are
not
forced
to
seek
unsafe
medical
procedures
such
as
illegal
abortion
because
of
lack
of
appropriate
services
in
regard
to
fertility
control;
General
Recommendation
24,
Women
and
Health
02/05/1999
UN
Document
A/54/38/Rev.1
31.
Prioritize
the
prevention
of
unwanted
pregnancy
through
family
planning
and
sex
education
and
reduce
maternal
mortality
rates
through
safe
motherhood
services
and
prenatal
assistance.
When
possible,
legislation
criminalizing
abortion
should
be
amended,
in
order
to
withdraw
punitive
measures
imposed
on
women
who
undergo
abortion;
Report
of
the
Committee,
33rd
Session,
Concluding
Comments
08/31/2005
UN
Document
A/60/38
396.
While
acknowledging
positive
developments
in
the
implementation
of
article
12
of
the
Convention,
in
particular
the
Strategy
to
Address
the
Issue
of
Crisis
Pregnancy
(2003)
that
addresses
information,
education
and
advice
on
contraceptive
services,
the
Committee
reiterates
its
concern
about
the
consequences
of
the
very
restrictive
abortion
laws,
under
which
abortion
is
prohibited
except
where
it
is
established
as
a
matter
of
probability
that
there
is
a
real
and
substantial
risk
to
the
life
of
the
mother
that
can
be
averted
only
by
the
termination
of
her
pregnancy.
397.
The
Committee
urges
the
State
party
to
continue
to
facilitate
a
national
dialogue
on
women’s
right
to
reproductive
health,
including
on
the
very
restrictive
abortion
laws.
It
also
urges
the
State
party
to
further
strengthen
family
planning
services,
ensuring
their
availability
to
all
women
and
men,
young
adults
and
teenagers.
54
A
Response
to
the
Expert
Group
Report
Family
&
Life
Report
of
the
Committee,
21st
Session,
Concluding
Comments
08/12/99
UN
Document
A/54/38/Rev.1
185.
While
noting
with
appreciation
the
existence
of
a
Plan
for
Women’s
Health,
1997‐1999,
and
the
establishment
of
a
Women’s
Health
Council,
as
well
as
the
wide
availability
of
various
programmes
to
improve
women’s
health,
the
Committee
is
concerned
that,
with
very
limited
exceptions,
abortion
remains
illegal
in
Ireland.
Women
who
wish
to
terminate
their
pregnancies
need
to
travel
abroad.
This
creates
hardship
for
vulnerable
groups,
such
as
female
asylum
seekers
who
cannot
leave
the
territory
of
the
State.
186.
The
Committee
urges
the
Government
to
facilitate
a
national
dialogue
on
women’s
reproductive
rights,
including
on
the
restrictive
abortion
laws.
It
also
urges
the
Government
to
further
improve
family
planning
services
and
availability
of
contraception,
including
for
teenagers
and
young
adults.
It
also
urges
the
Government
to
promote
the
use
of
condoms
to
prevent
the
spread
of
HIV/AIDS.
Human
Rights
Committee
(monitors
the
International
Covenant
for
Civil
and
Political
Rights)
General
Comment
28,
Equality
of
rights
between
men
and
women
(article
3)
2000
UN
Document
CCPR/C/21/Rev.1/Add.10
10.
When
reporting
on
the
right
to
life
protected
by
article
6,
States
parties
should
provide
data
on
birth
rates
and
on
pregnancy
and
childbirth‐related
deaths
of
women.
Gender‐disaggregated
data
should
be
provided
on
infant
mortality
rates.
States
parties
should
give
information
on
any
measures
taken
by
the
State
to
help
women
prevent
unwanted
pregnancies,
and
to
ensure
that
they
do
not
have
to
undertake
life‐threatening
clandestine
abortions.
States
parties
should
also
report
on
measures
to
protect
women
from
practices,
that
violate
their
right
to
life,
such
as
female
infanticide,
the
burning
of
widows
and
dowry
killings.
The
Committee
also
wishes
to
have
information
on
the
particular
impact
on
women
of
poverty
and
deprivation
that
may
pose
a
threat
to
their
lives.
11.
To
assess
compliance
with
article
7
of
the
Covenant,
as
well
as
with
article
24,
which
mandates
special
protection
for
children,
the
Committee
needs
to
be
provided
information
on
national
laws
and
practice
with
regard
to
domestic
and
other
types
of
violence
against
women,
including
rape.
It
also
needs
to
know
whether
the
State
party
gives
access
to
safe
abortion
to
women
who
have
become
pregnant
as
a
result
of
rape.
The
States
parties
should
also
provide
the
Committee
information
on
measures
to
prevent
forced
abortion
or
forced
sterilization.
In
States
parties
where
the
practice
of
genital
mutilation
exists
information
on
its
extent
and
on
measures
to
55
A
Response
to
the
Expert
Group
Report
Family
&
Life
eliminate
it
should
be
provided.
The
information
provided
by
States
parties
on
all
these
issues
should
include
measures
of
protection,
including
legal
remedies,
for
women
whose
rights
under
article
7
have
been
violated.
Report
of
Committee,
93rd
Session,
Concluding
Observations
07/30/2008
UN
Document
CCPR/C/IRL/CO/3
13.
The
Committee
reiterates
its
concern
regarding
the
highly
restrictive
circumstances
under
which
women
can
lawfully
have
an
abortion
in
the
State
party.
While
noting
the
establishment
of
the
Crisis
Pregnancy
Agency,
the
Committee
regrets
that
the
progress
in
this
regard
is
slow.
(arts.
2,
3,
6,
26)
The
State
party
should
bring
its
abortion
laws
into
line
with
the
Covenant.
It
should
take
measures
to
help
women
avoid
unwanted
pregnancies
so
that
they
do
not
have
to
resort
to
illegal
or
unsafe
abortions
that
could
put
their
lives
at
risk
(article
6)
or
to
abortions
abroad
(articles
26
and
6).
Committee
Against
Torture
(monitors
the
Convention
Against
Torture
and
Other
Cruel,
Inhuman
or
Degrading
Treatment
or
Punishment)
46th
Session,
Concluding
Observations
06/17/2011
UN
Document
CAT/C/IRL/CO/1
26.
The
Committee
notes
the
concern
expressed
by
the
European
Court
of
Human
Rights
about
the
absence
of
an
effective
and
accessible
domestic
procedure
in
the
State
party
for
establishing
whether
some
pregnancies
pose
a
real
and
substantial
medical
risk
to
the
life
of
the
mother
(case
of
A,
B
and
C
v.
Ireland),
which
leads
to
uncertainty
for
women
and
their
medical
doctors,
who
are
also
at
risk
of
criminal
investigation
or
punishment
if
their
advice
or
treatment
is
deemed
illegal.
The
Committee
expresses
concern
at
the
lack
of
clarity
cited
by
the
Court
and
the
absence
of
a
legal
framework
through
which
differences
of
opinion
could
be
resolved.
Noting
the
risk
of
criminal
prosecution
and
imprisonment
facing
both
the
women
concerned
and
their
physicians,
the
Committee
expresses
concern
that
this
may
raise
issues
that
constitute
a
breach
of
the
convention.
The
Committee
appreciates
the
intention
of
the
State
party,
as
expressed
during
the
dialogue
with
the
Committee,
to
establish
an
expert
group
to
address
the
Court’s
ruling.
The
Committee
is
nonetheless
concerned
further
that,
despite
the
already
existing
case
law
allowing
for
abortion,
no
legislation
is
in
place
and
that
this
leads
to
serious
consequences
in
individual
cases,
especially
affecting
minors,
migrant
women,
and
women
living
in
poverty
(arts.
2
and
16).
56
A
Response
to
the
Expert
Group
Report
Family
&
Life
The
Committee
urges
the
State
party
to
clarify
the
scope
of
legal
abortion
through
statutory
law
and
provide
for
adequate
procedures
to
challenge
differing
medical
opinions
as
well
as
adequate
services
for
carrying
out
abortions
in
the
State
party,
so
that
its
law
and
practice
is
in
conformity
with
the
Convention.
57
A
Response
to
the
Expert
Group
Report
Family
&
Life
SELECT
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