An extra weekend will be added to the Citizens’ Assembly agenda in order to allow members more time to consider the eighth amendment to the Constitution, it was decided this weekend.
Members of the Citizens’ Assembly on Sundaty discussed for the first time what its eventual recommendations on possible changes to the law on abortion could look like.
On Sunday morning the members wrote a reflective exercise on issues that might impact on eventual recommendations. Chairwoman Ms Justice Mary Laffoy read what she emphasised was an “ad hoc flavour” of written responses from members which they wrote during the exercise.
Asked what were the reasons to regulate or not to regulate through the Constitution, there was “a very wide range of views”, Ms Laffoy said.
Among the responses in favour of regulation through the Constitution was that it was a “basic human right of choice over the the reproduction of the body”.
Another response said it should be in the Constitution to prevent lobby groups from exercising influence, and another said it would protect the ethos and culture of the Irish people in a more permanent way.
Another said the right to life was inalienable and needed to be protected in the Constitution.
Among the responses as to why there should not be regulation through the Constitution were because it would control women’s behaviour and because culture slowly evolves and locking it into the Constitution did not make sense.
Another response said the best scenario was to repeal the Eighth Amendment and replace it with laws.
Another response said it was a medical issue and should be treated as such and not be in the Constitution.
The assembly meeting in Malahide this weekend consisted of 99 citizens and is chaired by the Supreme Court judge.
It is charged with discussing and making recommendations on a number of public policy issues, but must first deal with the future of the Eighth Amendment to the Constitution, which as article 40.3.3 underpins Ireland’s anti-abortion laws.
On Saturday members heard from experts on the medical, legal and ethical issues raised by fatal and other foetal abnormalities and how they relate to the human rights of women and the current constitutional protection of the unborn.
New ante-natal screenings which can detect chromosomal disorders such as Down syndrome pose ethical issues for society, the Citizens’ Assembly was told.
Ante-natal screening poses ethical issues
Prof Peter McParland, the director of Foetal Maternal Medicine at the National Maternity Hospital, Dublin, said new non-invasive techniques involving blood samples, which can separate the DNA of a mother from her unborn child, has had a huge impact and were a powerful tool for screening.
He told members of the assembly that said non-invasive screening procedures (NIPT) can now detect chromosomal conditions such as Down syndrome or Edwards syndrome to an accuracy level of 99 per cent.
As a result there has been no baby born with Down syndrome in Iceland in the last four years since the screening programme was brought in, while in Denmark, which has a similar screening programme, only a handful of babies have been born with the condition.
“We are not Iceland and we’re not Denmark but there is a trend there,” he said.
“Down syndrome is not lethal or fatal, but women are choosing to have the test. It is widely available. They want the reassurance that their baby is okay. If their baby is not okay, they have this dilemma.
“In some countries there will be some that will have no Down syndrome baby. The science has got way ahead of the ethical discussion. As a society we have not reflected on what the implications are.”
Prof McPartland said that of the 3,451 Irish women who had abortions in the UK last year, 135 (or 4 per cent) had theirs under Section E which is serious physical or mental handicap. Of the 135, 112 were over 20 weeks gestation.
They were divided almost equally between those who had a serious anatomical condition (66) and those who have chromosomal abnormalities (69). Forty Irish women had abortions after screening tests showed their child would be born with Down syndrome.
He said an ultrasound, another screening technique, is not always accurate and some situations do not turn out to be as bad as the ultrasound suggests. However, he stressed that in the vast majority of cases it is accurate.
In his address to the Citizens’ Assembly on ante-natal diagnosis and management of foetal abnormalities, he said two to three per cent of unborn children will have a congenital abnormality divided equally between those conditions that are regarded as minor and those that are regarded as major.
He said the “vast majority” of those whose children are diagnosed with a major abnormality, opt to carry on the pregnancy and are given a plan for delivery and subsequent care. Contrary to some media reports, he stated that those who have child with a severe congenital abnormality get the best of care.
Amanda Mellet judgment
Senior counsel Eileen Barrington was asked by members of the Citizens’ Assembly about the implications for Ireland in international law if no change is made in the Constitution in relation to the repeal of the eighth.
She was asked the question in the context of the Amanda Mellet v Ireland judgment. Earlier this year the UN Human Rights Committee held that Ireland’s abortion laws violated the human rights of Ms Mellet under the International Covenant on Civil and Political Rights (ICCPR).
Her unborn child was diagnosed with a fatal foetal abnormality and she travelled to Liverpool to have an abortion. The committee found that Ireland had violated several articles of the ICCPR and the State paid her €30,000 in compensation.
Ms Barrington said the response of the State to the Mellet judgment was that the matter was under review by way of the Citizens’ Assembly.
If there is no change to the law, UN Human Rights Committee may decide that Ireland continues to be in breach of the law.
When the issue of Ireland’s abortions law came before the European Court of Human Rights, the State made the argument that the people had voted on the issue on a number of occasions. It argued that a “significant moral choice” had been made on the issue by the people. If the people voted against an amendment of Article 40.3.3, the State would have to go back to defend the will of the people again, she suggested.
International pressure
Dr Noelle Higgins, a senior lecturer in law at Maynooth University, said the issue of abortion will come up “again and again” at international committees dealing with human rights if Ireland’s abortion law is not changed.
“There is a huge amount of international pressure to Ireland to review its laws, but Ireland will be always be defending its laws at this committee.”
The 99 members of the assembly meeting at the Grand Hotel in Malahide heard different sides of the philosophical argument in relation to abortion.
Shattering experience
Dr Helen Watt of the Anscombe Bioethics Centre in Oxford, a Catholic institution, took an anti-abortion stance. She said abortions carried out even when a foetus has a life-limiting condition can be a “shattering experience” for the women involved.
She said research suggests that the women who carry their babies to term in such circumstances do better with perinatal hospice support than those who opt for abortion.
She suggested human beings are all morally equal including unborn ones. No human being is a thing owned by anyone else; “neither age, size, location or level of development makes somebody a moral subperson”.
Morally conservative position
Advocating from a pro-choice point of view, Prof Bobbie Farsides, professor of clinical and biomedical ethics at Brighton and Sussex Medical School, said the law in Ireland reflected the most morally conservative position on the status of the human foetus.
She said how we treat the foetus has an “unavoidable” impact on how we treat the women carrying the foetus.
She suggested the law cannot ultimately decide what is absolutely right on this matter because so many people find it difficult to agree.
She said people who are anti-abortion could, in the circumstances where abortion is legalised, still argue for their position, but those who are pro-choice have no such freedom.
“Those who hold to the position of equal status as an article of faith or moral belief will always be free to base their own deliberations and choices upon that view,” she said.
“Until the law changes women who hold a different view will have no such freedom.”
One could be pro-life, but still respect and allow for those who have a different opinion, she said.
“One can in society decide that you are willing to accept as legally permissible something that you personally will never accept as morally acceptable.
“We may not like or respect the way in which some people characterise the foetus, we may not approve of all the choices people make, but we can still think it important to protect their right to make them.”
