Thursday 27 October 2016

Brexit could make fatal foetal abnormality even more traumatic

Published 27/06/2016 | 02:30

Independent TD Mick Wallace. Photo: Tom Burke
Independent TD Mick Wallace. Photo: Tom Burke

The supremacy of Ireland's Constitution over our legislation is such that any challenge to the Constitution must be brought to the Supreme Court, where up to seven judges will decide on the issue.

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For a traumatised pregnant woman to bring a challenge, she would have to appeal a High Court decision against her. When she is no longer pregnant, the issue is moot. You can see the impossibility of that situation.

This has now become an even more dangerous situation as, following the British vote to leave the EU, Irish women who are diagnosed with fatal foetal abnormality face the possibility of a controlled border with the UK. Are we going to send them to Paris now? Or Geneva? Can Health Minister Simon Harris provide a travel bursary, given that we refuse to acknowledge they need medical assistance here? Perhaps, the HSE could include them in the Treatment Abroad Scheme (TAS), which provides the cost of approved treatments in another EU/EEA member state or Switzerland?

Alternatively, legislation such as Mick Wallace's proposed Private Member's Bill on fatal foetal abnormality, which will be debated on June 30, can be passed and then referred by the President via Article 26 of the Constitution to the Supreme Court to test its constitutionality.

Under Wallace's bill, two suitably qualified medical professionals - a perinatologist and an obstetrician - would be asked to, in good faith, certify if the foetus is incompatible with life. I would go further and have the test results confirmed in two separate hospitals. As was done in my own case.

In determining the constitutionality of Wallace's bill, the judges of the Supreme Court have diverse means of coming to a decision. They may examine the Eighth Amendment by adopting a literal, purposive, historic or harmonious approach. So far, the State has claimed that it is a complete unknown how the Eighth Amendment would be interpreted until a case is taken by a pregnant woman, in the throes of the traumatic news that her baby will not survive.

Only then will several judges interpret whether or not she has the right to treatment by her own medical team, thus removing the criminal penalty of 13 years in prison for her doctor. In the case of fatal foetal abnormality, there is no black and white approach, no literal interpretation is possible, as the woman may miscarry because of the defect. If the unborn cannot engage with life outside the womb, is it a 'born'? The Supreme Court must interpret what the judicial drafters of the 1983 referendum considered an 'unborn', in the context of termination for fatal foetal abnormality coming to public attention since 2002 (Deirdre De Barra).

When I took a case against Ireland in the European Court of Human Rights claiming a breach of Article 3 of the ECHR for inhuman and degrading treatment in the case of fatal foetal abnormality, the Government's response was: "the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional.

If, therefore, it had been established that there was no realistic prospect of the foetus being born alive, then there was 'at least a tenable' argument which would be seriously considered by the domestic courts to the effect that the foetus was not an "unborn" for the purposes of Article 40.3.3 or that, even if was an "unborn", its right to life was not actually engaged as it had no prospect of life outside the womb. In the absence of a domestic decision, it was impossible to foresee that Article 40.3.3 clearly excluded an abortion in the applicant's situation in Ireland."

I have quoted the government's defence many times, so that the Attorney General may note that being 'born' without a prospect of survival is not an issue an Attorney General can solely advise upon - certainly not secret advice to the Taoiseach - in order that the members of the Dáil vote down Mr Wallace's bill because of supposed unconstitutionality.

The Taoiseach simply cannot try and pull the wool over the eyes of parliamentarians again, with this opaque 'AG secret advice', nor can he continue to defer with the Citizens' Assembly idea.

Due to Amanda Mellet's treatment or lack of it under Irish law, the UN Human Rights Committee recently found that Ireland must amend its abortion law, including the Constitution if necessary, to ensure compliance with the International Covenant on Civil and Political Rights (ICCPR), for effective, timely procedures for pregnancy termination in cases of fatal foetal abnormality.

Although the UNHRC finding is not technically 'binding', there are legal and policy reasons why Ireland must take good faith steps to implement the findings and comply with its international obligations. In 1989, Ireland ratified the ICCPR. It must comply with the treaty under international law, and cannot invoke its Constitution, or any other domestic law, as rationale for failure to comply (Articles 26 and 27 of the Vienna Convention on the Law of Treaties).

When Ireland subjected Amanda Mellet to cruel, inhuman or degrading treatment, it committed an internationally wrongful act. International law requires it to remedy the wrongful act and guarantee non-repetition.

If Ireland does not do so, it will place Irish medical professionals in untenable ethical situations, placing them at risk of complicity in inhuman or degrading treatment.

If the Government does not take steps, such as passing the Wallace bill, and remedy the harm suffered and guarantee non-repetition, it will be open to repeated litigation against the State before the UN committee and the European Court of Human Rights. It will be perpetuating a deliberate cruelty on parents.

With a free vote, all TDs must take into account each parent faced with this cruel situation.

Irish Independent

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