Ireland’s cruel and unusual abortion law

It astonishes how the authorities in Ireland pick their battles over abortion. At the end of April, the nation was transfixed by a legal dispute between a pregnant teenager, known only as ‘Miss D’, and the Health Service Executive (Ireland’s social services). D had been taken into care under an interim care order. She was living with her boyfriend, and was pregnant. On 23 April, which happened to be her seventeenth birthday, she attended hospital for a scan. The technician who did the scan told her that her baby had no head.

The official diagnosis was that her baby had anencephaly: a neural tube defect, which meant that a large part of the skull and brain is missing. The condition is fatal. Miss D decided that she wished to terminate her pregnancy.

The HSE’s reaction to her decision was extraordinary: it wrote to the police to ask them to arrest D if she tried to leave the country. And it told the Passport Office not to issue D with a passport. Faced with this officiousness, D fought back. On 30 April her boyfriend started a legal challenge on her behalf, to establish her right to leave the country. D, who sounds a feisty soul, said that it was her body and her right to decide what happened to it. The HSE opposed her application for judicial review saying, ‘it could not get involved’ in D’s plan to terminate her pregnancy.

This bizarre dispute arose because of Ireland’s exceptionally restrictive law on abortion. In 1983, voters amended Ireland’s Constitution. Article 40.3.3 grants the ‘unborn’ a right to life equal to that of the pregnant woman. The Irish State undertakes to ‘uphold and vindicate’ this right. In a high-profile case in 1992 called X (1), the State got a court injunction to prevent a 14-year-old from leaving the country for an abortion. As X had become pregnant as the result of sexual assault, the court’s intervention seemed particularly cruel. Eventually the Supreme Court ruled by 4:1 that because X was thought to be at risk of suicide, her right to life took precedence over the fetus, so she could lawfully terminate her pregnancy in Ireland. However, it also held that women could be prevented from travelling for an abortion if their lives were not at risk.

This decision caused outrage amongst hardline opponents of abortion, who promptly demanded a referendum to exclude the risk of suicide as a ground for abortion, and amongst everyone else, who demanded that women be free to travel abroad for an abortion, if they wished. The Constitution was amended in 1992 to give women freedom to travel, but the attempt to narrow the grounds for an abortion in Ireland failed. It is a criminal offence for a doctor to make an appointment, or any other arrangement, for a woman seeking an abortion (2).

A subsequent case called A & B v C concerned a 13-year-old traveller girl in care who had been raped, and was at risk of suicide (3). The local authority sought the court’s permission to take her aboard for an abortion, which was granted. But the judge said: ‘This [constitutional] amendment…was intended to prevent injunctions against travel or having an abortion abroad. A court of law, in considering the welfare of an Irish child in Ireland and considering whether on health grounds a termination of pregnancy was necessary, must, I believe, be confined to considering the grounds for termination which would be lawful under the Irish Constitution and cannot make a direction authorising travel to another jurisdiction for a different kind of abortion.’

In a recent case before the European Court of Human Rights, D v Ireland, another woman (also named ‘D’) argued that she should have been entitled to a lawful termination of pregnancy after her fetus was diagnosed with Trisomy 18, a lethal chromosomal anomaly (4). The Irish State argued that she should have applied in the Irish courts first, because she had reasonable chances of establishing that the Constitution did not apply to a fetus with a lethal anomaly. Although Article 40.3.3 excludes a liberal abortion regime, a court would not apply it with ‘remorseless logic’ to such exceptional and tragic circumstances. This was a novel argument, which had never featured before in official publications on abortion, such as the Government Green Paper (1999) and the Report of the All-Party Oireachtas Committee on the Constitution (2000).

The first Ms D lost her Strasbourg challenge on 5 July 2006, because she had failed to exhaust her domestic remedies in the Irish courts first. So it is remarkable that in the latest case, no one seemed willing to ask the question: why did Miss D have to travel at all? If fetuses with lethal anomalies are not protected by the Constitution, women in that situation can be treated at home.

The assumption that pregnant women in that situation, who are cared for in specialist maternity units, should have to head off into the unknown is unacceptable, because it leads to sub-optimal maternity care. What about post-mortems, genetic counselling, and so on? And what is to happen to the fetal remains – are women supposed to arrange for the transportation home for burial? Leading obstetricians or ‘Masters’ (as they are called) from Dublin’s three main maternity hospitals gave extensive evidence to the All-Party Committee in 2000. All were asked for their views on lethal fetal abnormality. Their measured testimony shows conscientious professionals who all agree on the answer to the problem, yet who struggle with an inflexible system.

Dr Keane of the National Maternity Hospital said that in cases of lethal fetal abnormality, it would be preferable for women to terminate their pregnancies at an Irish hospital rather than have to go abroad and be deprived of autopsy and counselling services. He said: ‘Ireland has the second highest rate of neural tube defects in the world.’

Dr Peter McKenna, Master of the Rotunda, explained: ‘We are the people who diagnose the fetal abnormality. They are diagnosed in maternity hospitals and because those fetal abnormalities have recurrence rate in future pregnancy it is important that these patients should have the best information available on their babies’ post mortems and on the likely risk of recurrence.’ He guessed that there were possibly 50 or so women who left Ireland each year to have severely abnormal fetuses terminated outside the country.

Dr McKenna gave an anecdote in which he said that, about 18 months previously, he had received a phone call ‘from an official at the [Irish] Department of Health and Children concerning a woman whose baby did have a lethal congenital abnormality and who was travelling outside the State. It was felt appropriate that that baby would be brought back to the country for a post mortem and the official at the Department of Health and Children had the dilemma as to how to advise that woman to bring the baby back. Should it be declared and then coffined and flown back as a dead corpse or should it be brought back, almost surreptitiously, as hand luggage? That is the sort of practical distasteful dilemma that we are currently working in. I did not know the answer to that question, I should say, and neither did the officials at the Department of Health and Children when I was speaking to them. But the practical problem was landed with the family and I do not think it over-dramatic to say that this is not the sort of dilemma that somebody who has lost a baby needs or wants.’

Dr McKenna was asked whether a couple whose fetus had been diagnosed with a chromosomal abnormality would receive information and counselling from the Irish maternity hospital. He replied: ‘We are probably a little bit guarded as to what advice we can give, or we feel we can give. What I would like to move to is a situation where we could discuss this openly, we could say “the Department of Health and Children has negotiated a contract with a preferred hospital in the United Kingdom, this is the route, if you have got to leave the country this is what you will do and this is what will happen, we will see you, we will have a copy of the post mortem when you come back”. At present it is a little bit under cover.’

Senator O’Meara asked: ‘So, you would like to be able to refer patients, in effect, where they choose to take that route?’ Dr McKenna answered: ‘Almost…indeed, that this was done at an official level, that we could go and buy services officially or it would be done for us, that parents could go to such and such a hospital. Many of these terminations are done privately where cost is the major consideration. As I say, that is not the sort of pressure that you want people to be put under. You would like them to get into a system that can look after them carefully and comprehensively.’

Senator O’Meara asked: ‘So I take it that the parents would arrange those terminations themselves?’ Dr McKenna answered ‘usually, yes. We would certainly give them some pointers but, as I say, one has got to be a bit circumspect.’

Dr Sean Daly of the Coombe Hospital was asked whether in the case of grave fetal abnormality, there was merit in the argument that women should have the choice of either a termination in Ireland or of a formal referral overseas. He said, ‘Yes I do.… I think women deserve a choice there, though, because ultimately being pregnant is a more dangerous time than not being pregnant, and the reason that we justify that increased risk, albeit a small increase in risk, is because a pregnancy is going to result in the birth of a live baby.’ (5)

In the latest case of Miss D, matters took a curious course. After days in court, with Miss D, her mother, the HSE, the Department of Health and the fetus all represented by teams of leading counsel, the High Court judge enquired whether the HSE considered that an abortion was in Miss D’s best interests. Obviously he expected the answer to be yes. But it came back as ‘No’. After an adjournment, the HSE back-tracked and said that it would be in Miss D’s best interests, provided that (i) her mother agreed (which she did), (ii) D had counselling, and (iii) the District Court which had made the interim care order thought that her decision was fully considered, and agreed that allowing her to travel was lawful (6).

On Saturday 5 May, the HSE asked the District Court to authorise Miss D’s travel. The District Judge refused, saying his obligation to the unborn prohibited the making of such an order. So on Sunday 6 May, the HSE went back to the High Court to start its own judicial review, to overturn the District Court’s decision. After more legal argument on Monday, the judge said he would reserve his decision until the afternoon of 9 May.

He concluded that there was no legal obstacle whatever to Miss D’s travelling, and was critical of the HSE. The litigation is estimated to have cost one million euros (7). On 10 May 2007, Dr Keane called for the law to be changed, while the other Miss D, who took her case to Strasbourg under conditions of strict anonymity, agreed for the first time to do a radio interview (8).

But cases like these only fuel opposition to Ireland’s exceptionally restrictive abortion laws. The HSE, which is responsible for many pregnant girls in care, now faces a serious set of logistical problems: some of these girls will want to travel for terminations, and will insist that the HSE facilitate them. As for women diagnosed with lethal fetal anomaly, perhaps the time has come for obstetricians to take a test case to force Ireland’s Department of Health make proper arrangements for such women, too.

Barbara Hewson is a barrister at Hardwicke Building in London, and was counsel for D in D v Ireland (2006).

(1) Attorney General v X [1992] 1 IR 1

(2) Section 8, The Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995

(3) A & B v Eastern Health Board, Judge Mary Fahy, C and the Attorney General (Notice Party) [1998] 4 I.R. 464

(4) (2006) 43 EHRR SE191

(5) All-Party Oireachtas Committee on the Constitution, Fifth Progress Report on Abortion (November 2000): see pp. A98-9, A101-2, A104-5, A113.

(6) “After four days, High Court gets to key issue” Examiner 5 May 2007

(7) “High Court rules that girl can travel for an abortion” Irish Times 10 May 2007

(8) http://www.rte.ie/news/morningireland/index.html