Caring electorate will vote to repeal Eighth Amendment
Published 30/05/2015 | 02:30
Nobody could be more surprised at the joyous outcome of the referendum than Taoiseach Enda Kenny. He could bask in a golden light that reflected a Government who supported marriage equality. He could not have seen it coming.
Ireland's youth and diaspora who registered and who came 'home to vote' together with the rest of us committed to abolishing suffering, showed there is broad scope to embrace real tolerance.
It gives me hope that Fine Gael may once again listen to their Labour partners in Coalition and commit to alleviating the human misery imposed by the Eighth Amendment and change the Protection of Life During Pregnancy (PLDP) Act.
On the Attorney General's advice, the PLDP Act cannot be amended to include terminations for fatal foetal abnormality, as it would conflict with the ambiguous wording of the 1983 amendment (Article 40.3.3.) on the 'right to life'. Remember, in 1983 it was still legal to rape your wife.
Thirty-two years later, the PLDP bill was passed to allow terminations in cases of suicide, which is possibly the worst response to female suffering in non-suicidal crisis pregnancies, and paradoxically the Act has no gestational time limit. Instead of responding to the reality of contemporary Irish society, the Act is based on one case, one decision by the Supreme Court. It was a box-ticking exercise which met with no meaningful consensus. And it lost Fine Gael one of its hardest-working TDs, Lucinda Creighton.
Yet, when a suicidal, raped asylum-seeker presented herself to the HSE, her family having been murdered by her rapist, she was forced to continue to viability, tantamount to surrogacy, the result of which is a baby with no mother or father - all of which are situations the 'No' side denounced in the marriage equality referendum and yet they would support the HSE's actions in that case.
Labour TD for Clare Michael McNamara - who incidentally lost the party whip this week for voting against the Government's sale of the Aer Lingus stake - will soon be presenting his amendment to the PLDP Act to include fatal foetal abnormality as a condition for termination.
He has based his reasoning on the decision in D v Ireland in the European Court of Human Rights, 2006. Mr McNamara has confined the possibility for medical intervention to cases of anencephaly.
Unfortunately, there are many more diagnoses where a foetus will not survive and limiting termination to anencephaly is simply not practical. The High Court decision in PP v HSE (2014) demonstrates an even greater concern about ambiguous readings of the Eighth Amendment. Doctors who feared criminal liability by ceasing life support of a dead pregnant woman of 18 weeks, sought clarity on the rights of the unborn. The woman's father sought a dignified death for his daughter. The court heard the woman's brain was rotting, she had an open head wound and several infections and there were concerns about the effect of the drugs, being administered to her, on the unborn.
Seven doctors gave evidence and none argued the treatment should continue or that there was any realistic prospect of her baby being born intact even if the treatment continued.
Arguments were put forward on behalf of the unborn, that the Irish-language text of Article 40.3.3 meant the State had an obligation to vindicate that right to life "as far as is possible"; the High Court rejected this, citing the Supreme Court position that the obligation meant the protection must be not futile, impractical or ineffective.
If that is the case, then the forced continuation of a pregnancy with fatal foetal abnormality amounts to the same outcome, where there is no prospect of survival outside the womb. One of the medical witnesses said the unborn child was "facing into a 'perfect storm' from which it has no realistic prospect of emerging alive" and "it has nothing but distress and death in prospect".
Lawyers for the HSE had not opposed the family's application to allow her be legally taken off the somatic treatment. The HSE said that ceasing the treatment was not unlawful based on evidence that there was no reasonable prospect the unborn would survive. Yet, despite the general consensus on both sides that the woman should be taken off life support after which the unborn will not survive, the High Court has not clarified the balance of rights of a healthy mother, where there is no prospect of survival of the unborn.
According to the State's defence in D v Ireland, a traumatised pregnant mother will need to take a High Court case when she is told her baby will not survive, and the court will decide if there can be an intervention or not. In Miss D v HSE (2007) this is exactly what happened in an anencephaly diagnosis. The court decided she could travel to the UK.
The young woman was spat at by opposition campaigners as she entered the court. This cruel intolerance of women's suffering simply cannot continue.
It perpetuates a dual tragedy and is a breach of several human rights to bodily integrity, it is inhuman and degrading treatment and breach of privacy.
The moment of hearing the fatal diagnosis is compounded by the difficulties faced by the professionals entrusted with your maternal medical care.
On the PP v HSE case, Dr Peter McKenna (former master of the Rotunda Hospital) said keeping the brain-dead woman alive was "verging on the grotesque" and Dr Peter Boylan (former master of the National Maternity Hospital) said it would be "better to repeal the eighth amendment".
As Senator Averil Power turns her back on a patriarchal, cynical, obsequious political party, others take note, there is a new electorate, they are caring men and women, and they will vote to end suffering.
Repeal the Eighth Amendment.
Deirdre Conroy took the case D v Ireland 2006.