Tuesday 13 November 2018

For all our sakes, the Government must define legal rights of unborn

Dearbhail McDonald

Dearbhail McDonald

IN 1973, the Unites States Supreme Court ruled a woman has a constitutional right to an abortion during the first six months of pregnancy.

In the landmark decision, the court said abortions could only be banned during the final three months, when medical experts considered the foetus capable of "meaningful life" outside the womb.

Roe v Wade, the most divisive decision in American law and politics, split the nation and the world at large into pro and anti-choice camps.

The decision also terrified the Catholic Church and its flock in Ireland who feared that abortion would be introduced by the judiciary here through a similar privacy prism.

Roe and its offspring were the catalysts that led to the 1983 referendum on abortion, which guarantees the equal right to life of the unborn with that of its mother.

But the government of the day refused to introduce legislation giving effect to Article 40.3.3, nor did it define the unborn or the circumstances in which it was entitled to protection.

That failure to legislate backfired during the 1992 X-case debacle when the Supreme Court was forced to come up with a protracted formula to allow a 14-year-old girl, pregnant as the result of a rape, to travel to Britain for an abortion. In that case, Supreme Court judge Niall McCarthy berated the Government for its "inexcusable" failure to introduce appropriate laws.

Sixteen years after X, we still have no legislation that defines the unborn.

Fast forward to 2006, when yet another unholy row broke out after a High Court judge found three frozen embryos, resulting from IVF treatment, were not "unborn" and therefore not entitled to constitutional protection.

And just last week, the country was convulsed when yet another High Court judge ruled the blood link of a sperm donor carried little weight where he had agreed to act as a "favourite uncle" to his biological son now being raised by a lesbian couple.

The failure to clarify the legal status of the unborn has caused untold chaos for decades and will continue to do so unless laws are introduced.

In this current legal lacuna, how can the Government possibly respond to yesterday's calls by the Irish Council for Bio-ethics to legalise [with strict conditions] some forms of embryonic stem cell research?

In a country that does not regulate IVF treatment, because we do not have laws that define the unborn, how can we possibly determine legal rights and responsibilities that arise when people donate sperm and eggs or engage in acts of surrogacy?

And how can we even begin to have a debate about embryonic stem cell research and reproductive cloning without basic laws that defines the unborn and the legal protection it enjoys?

For all our sakes, Ireland can no longer ignore the need to provide a legal definition of the unborn.

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