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Q&A: Does the Eighth have to be repealed to legislate for fatal foetal abnormality cases?

The government’s legal advice and the position of the courts on the Eighth Amendment have tied the hands of legislators in the past.

In our Q&A: Eighth Amendment Referendum series, we are answering questions our readers have submitted in relation to the upcoming vote on 25 May.

THE QUESTION

A number of people have asked a version of this question. Here are some of those queries: 

  • Is this referendum needed? Can’t we just amend the 2013 act to cover rape, FFA, incest and underage pregnancies?
  • Why are families facing a diagnosis of FFA travelling to the UK? Why can they not be accommodated in Ireland?
  • Are there statistics on what percentage of abortions is carried out due to rape or FFA (eg in the UK or among Irish women who travel to have abortions)?

THE ANSWER

In total, 3,265 Irish residents travelled to the UK for a termination in 2016.  According to the UK Department of Health, 141 Irish women in 2016 had a termination under ground E.

Ground E abortions are those performed because of fetal abnormality at any gestation.

In the UK, a total of 3,208 terminations were performed under this ground that year. Almost half of those involved congenital malformations – the most common were malformations of the nervous system.

Among the Irish cases, there were 13 cases of anencephaly. This is a condition where the brain or spinal cord of an embryo does not develop properly. This means the bones of the skull do not form properly and this results in severe damage to the brain when it is developing.

There were also nine cases of congenital malformations of the cardiovascular system.

A large percentage of the Irish cases in 2016 (20 cases in total), involved a diagnosis of Edwards’ syndrome, also known as trisomy 18.

According to the NHS ”most babies with complete trisomy 18 die before they are born or shortly after birth”. Babies with partial or mosaic trisomy 18 can live beyond a year, it says, but this is rare.

Amanda Mellet successfully brought a complaint against the Irish State after she was forced to travel to the UK in 2011 for a termination when her unborn baby was diagnosed with this condition.

The current law

Pregnant women who have received diagnoses described as ‘fatal foetal abnormalities’ (FFAs) by their doctors are not permitted lawful terminations in Ireland.

The Protection of Life During Pregnancy Act 2013 allows for the termination of a pregnancy in just three specific circumstances:

  • A “real and substantial risk” of loss of life from physical illness
  • A risk of immediate loss of life from physical illness in an emergency
  • A “real and substantial risk” of loss of life from suicide

If there is a diagnosis of a fatal foetal abnormality, the unborn baby may die before full term, or, if they are delivered, they are not expected to not live for long. However, there generally is no substantial risk of loss of life for the pregnant woman and so there is no provision in this legislation for a termination in these situations.

Why does the Constitution prevent the government from legislating for these cases?

The government has, in the past, already expressed a desire to put in place laws to allow women to access abortions if they receive a fatal foetal diagnosis. Two health ministers – James Reilly and Simon Harris - addressed the issue when proposals on FFA were put before the Dáil in 2013 and again in 2016.

Each time they were advised by the Attorney General that their hands were tied by the Constitution.

In the run up to the debate on the Protection of Life During Pregnancy bill in 2013 a number of pro-choice lawyers had argued that because of the use of the term “as far as practicable” in the amendment, it was possible these cases could be legislated for.

However, then Health Minister James Reilly said he had been advised that it was not possible under the Constitution to legislate for cases of fatal foetal abnormalities. Speaking to the Health Committee that year, he said “no one can fail but to have sympathy for women who find themselves in this situation”.

He said his legal advice, however, was that they could not be legislated for in this bill.

“Some believe it would require a referendum and others believe otherwise. I have to take the advice available to me.”

Ms P v HSE case 

The foetal right to life was reaffirmed a year later in a case involving a brain dead pregnant woman who was being kept on life support to preserve the life of her unborn child. 

The High Court ruled that the woman’s right to dignity could take precedence because there was no reasonable prospect of the baby being born alive if life-support continued. But, the ruling also stated:

“When the mother who died is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living. ”

Legal experts have said this ruling reaffirmed the right of the foetus to be born if there is a chance it will live outside the womb, regardless of the expected quality or length of that life.

This was strengthened in 2015 legislation which included a section allowing people to draw up guidelines on how they would like to be treated medically should they lose capacity. According to this legislation, even if a woman stated that she wanted to refuse treatment if ever declared brain dead while pregnant, doctors would have to refer the case to the High Court.

Clare Daly and Mick Wallace’s 2016 bill

In 2016, Independents4Change proposed an amendment to the 2013 act, which would allow abortion in the case of a fatal foetal diagnosis.

At the time, Health Minister Simon Harris told the Dáil that he was not opposed to the purpose of the amendment. However, he received advice from the Attorney General of his department that it was unconstitutional because of the amendment.

“Let me be clear – I am not opposed to the purpose behind the bill and I will here set out in detail the grounds on which it is currently not possible to support it. In doing so, I am fully reflecting the legal advice available to me in relation to the constitutional issues pertaining to this bill as well as the medical advice I have received from the Chief Medical Officer for the information of the House,” he said.

He referenced a 2010 Supreme Court ruling, which stated that “the capacity to be born, or birth, defines the right protected”.

“Therefore in the case of a foetus with a condition that is incompatible with life, but which is capable of being born alive, and survive even for a very short period, such a foetus is protected by Article 40.3.3 of the Constitution,” Harris told the Dail in 2016.

The Eighth Amendment acknowledges the equal right of the life of the mother and the unborn baby - even if the baby is not expected to live for more than a few minutes outside of the womb after birth. The government’s legal advice and court rulings over the years have backed up this position.

This means if the Eighth Amendment remains part of the Irish Constitution, the government cannot amend current laws or pass new legislation to allow for terminations in these cases.

Some of the reader questions above also asked about legislating for cases of rape, incest and underage pregnancies – we’ll be addressing that in a separate Q&A next week. 

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