I am concerned here with one issue only – whether the terms of the Protection of Life During Pregnancy Bill 2013 as published are consistent with the Constitution and in particular with article 40, section 3, subsection 3.
I am not addressing any of the issues which have arisen and been the subject of public controversy since the enactment of the subsection and the delivery of the various judgments in the X case.
For the purposes of this article I am proceeding on the basis that legislation to regulate medical practice and clarify legal issues following the X case judgments is required and that the Bill represents, in the considered view of its proponents, the best available vehicle to achieve such regulation and clarification. In a further attenuation of the scope of this study, I am assuming and believe that the Bill is indeed the best attempt possible to achieve such regulation and clarification in cases falling within the purview of sections 7 and 8 of the Bill – risk of loss of life from physical illness and physical illness in emergency. I am concerned only with cases coming under section 9 – risk of loss of life from suicide.
There is an immediate and obvious essential distinction between cases arising under sections 7 and 8, on the one hand, and cases arising under section 9, on the other hand. Issues which will, sadly but unavoidably, arise under the former category would be issues of objectively ascertainable physical fact, however difficult such ascertainment would in many cases be for the medical practitioners involved. They are peculiarly suitable for professional resolution by such practitioners. While psychiatric expertise would no doubt be of assistance in ascertaining the reality of a claim that a woman is suicidal because of her pregnancy, it could scarcely be asserted that such expertise is peculiarly or exclusively appropriate for the resolution of such a claim. Obviously this would be particularly true of a case where a woman would make a spurious or dishonest claim of suicidal ideation for the purpose of obtaining a termination of her pregnancy under the provisions of the Bill if enacted in its present form.
Under the Constitution, and in particular article 40, a pregnant woman’s right to life, like that of all others, must be vindicated by the State and its laws. Such a woman has a facility not available to the foetus, the facility to assert her constitutional rights. It could, and no doubt will, be argued that the provisions of sections 9 to 14 of the Bill constitute protection for the constitutional right to life of the foetus. It is necessary to consider if those provisions do in fact constitute such protection, and if they do, whether such protection is adequate and whether the provisions comply with the requirements of article 40, section 3, subsection 3, particularly but not exclusively because of the absence from them of any mechanism for the assertion on behalf of the foetus of its constitutional right to life corresponding to the facility available to the woman.
Measure of protection
There can be little doubt that the provisions of sections 9 to 14 are intended to afford a measure of protection to the foetus and that, at least insofar as it would no longer be possible for a woman to claim dishonestly to a medical practitioner that she was suicidal because of her pregnancy and for that medical practitioner, acting honestly or otherwise, to terminate her pregnancy purely on the basis of her claim. Such an action would of course be unlawful, at least on the part of the woman and possibly or probably on that of the medical practitioner, but the proofs necessary for a successful prosecution would rarely, if ever, be available. To that extent the provisions of sections 9 to 14 do extend some measure of protection to the foetus. The question arises, however, of the adequacy of such protection. I have no wish to be disrespectful to the medical profession (for which I have and have reason to have the utmost respect) or to the psychiatric branch thereof but I find it difficult to accept that an examination by the group of three practitioners referred to in section 9 (1) would be the best or even an appropriate method of assessing the bona fides of a woman's claim to suicidal ideation.
Certainly the expert opinions of an obstetrician and of two psychiatrists would be of great assistance and would indeed be essential in assessing a degree of risk of suicide once such risk exists. But the business of establishing or otherwise the bona fides of a claim of suicidal ideation is surely forensic in nature and requires procedures and skills for which expert psychiatric opinion might well be of great assistance, but which it is at least doubtful that it could be adequately discharged simply by an examination such as is envisaged by section 9 (1) (b). In this context one wonders why the words “in good faith” and “reasonable” were thought necessary or appropriate in the drafting of section 9 (1).
While it is not explicitly stated in the Bill, the examination provided for in section 9 would take place at the request of the woman or of someone on her behalf. This is explicitly the situation in relation to a review under sections 10 to 14. Of its nature, the foetus has not and cannot have any say personally in relation to the initiation of procedures under section 9 or under sections 10 to 14. That does not necessarily mean that ways of advocating its interests could not be devised. At this stage it is well to revert to the provisions of article 40, section 3, subsection 3 and to recall that they provide for an equality of the rights to life of the mother and of the foetus. They also require the State in its laws to respect and, as far as practicable, by its laws to defend and vindicate the right to life of the unborn. The State has a similar obligation, otherwise under the Constitution, in relation to the constitutional rights of the mother and specifically her right to life. Under section 9 of the Bill the mother is given the legal right to apply for a certificate which would enable her to have the right to life of the foetus set at nought and, under sections 10 to 14, in the event of her failing to get the section 9 certificate, to apply to a committee set up under section 12 for a review of the decision made under section 9. She gets two chances to have the life of the foetus terminated. At both hearings or examinations she has, very properly, the explicit right to be present and to be heard. As matters stand at present, the foetus gets no chance to have its right to survival advocated at all or otherwise vindicated. It is hard to see how this could be regarded as consonant with the Constitution and in particular with the clear provisions of article 40, section 3, subsection 3 calling for a vindication of its equal right to life. Surely that calls for an equality of opportunity to have both rights to life adequately asserted.
Judicial review
In all areas of human interaction in Ireland, the courts are the citizen's last and best chance of vindication of rights and of safety. They are of course a human institution and thereby prone to error but they act independently and have over many years devised procedures designed to get at truth. I have expressed reservations above about the ability of the bodies envisaged at sections 9 and 12, however eminently composed, to ascertain truth in such a difficult area as suicidal ideation in pregnant women, at least without carefully crafted procedures additional to the provisions of the Bill. At the very least it would seem that there would need to be present at all proceedings of those bodies someone to represent the rights of the foetus and that a full record of such proceedings be taken. In the event of a certification under section 9 or 13, there would have to be a short period of delay before a termination of pregnancy to enable appropriate action, such as judicial review, to be taken if considered necessary. As has been repeatedly held, the function of guarding constitutional rights and of initiating action to vindicate such rights is vested in the Attorney General. It would seem appropriate accordingly that the Attorney General would be the person to ensure that the constitutional right to life of the unborn, who cannot assert it on its own behalf, should be vindicated at all stages of the proceedings under the Bill if and when enacted and to initiate any application for judicial review which might appear appropriate.
Devising procedures to enable this to happen should not be beyond the wit of mankind. To anyone who may say that it adds an unnecessary procedural layer to an already difficult area, I would simply say that that area is one of life and of death.
Eamon Barnes is a former director of public prosecutions