Jun 272012

Dear Minister Reilly,

We write as Labour Party TDs, Senators and MEPs who wish to see legislation introduced in Ireland specifically to permit terminations of pregnancy in cases of fatal foetal abnormality where sought by the pregnant woman.

We write in the context of the recent presentations provided to members of the Oireachtas by a group of four women who had to travel to England to terminate their pregnancies in cases where each pregnancy had revealed a fatal foetal abnormality. We do not believe that women facing such tragic and traumatic personal circumstances should be forced to travel out of this jurisdiction to terminate their pregnancies if they wish to do so. We believe that they should be able to access a continuum of medical care here in Ireland with their own medical advisers, to include termination of pregnancy if they wish. In the interests of their health, and in the interests of common humanity, we believe that women should be entitled to access terminations of pregnancy on grounds of fatal foetal abnormality in Ireland.

Further, on an analysis of the relevant law, and in particular the case of D v. Ireland (ECHR, 6th September 2005, Ref No 26499/02), we believe that legislation setting out the criteria whereby terminations of pregnancy may be carried out in cases of fatal foetal abnormality would be compatible with Article 40.3.3 of the Constitution, and therefore capable of being introduced without
constitutional amendment.

We also believe that the issue of fatal foetal abnormality should come within the remit of the Expert Group set up to examine the implications of the European Court of Human Rights judgment in ABC v. Ireland (16th December 2010, Ref No 25579/05).  We note that the terms of reference of the Expert Group on the ABC v Ireland Judgment, as approved by Government on 29th November 2011, are as follows:

‘To examine the A, B and C v Ireland judgment of the European Court of Human Rights;

To elucidate its implications for the provision of health care services to pregnant women in Ireland;

To recommend a series of options on how to implement the judgment taking into account the constitutional, legal, medical, and ethical considerations involved in the formulation of public policy in this area and the over-riding need for speedy action.’

We note further that a written answer to a Parliamentary Question was given by the Minister for Health on 16th May 2012  (http://debates.oireachtas.ie/dail/2012/05/16/00031.asp), stating that:

‘The Expert Group is to report back to the Government within six months of establishment by means of a written report. The Group will meet on a periodic basis. I wish to assure the Deputy that the Group may receive written submissions from interested parties and additional relevant experts and professionals.’

Accordingly, as interested parties, we are presenting this letter as a written submission both to you and to the Expert Group.  We all greatly welcome the establishment of the Expert Group and are hopeful that it will recommend in due course the introduction of legislation to clarify the criteria under which terminations of pregnancy may be carried out in order to save a woman’s life.  We note that the Court in the ABC case concluded that the Irish Government had violated the right to privacy under Article 8 of the  onvention in respect of the third applicant, whose pregnancy had posed a risk to her life, because:

‘.. the authorities failed to comply with their positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland in accordance with Article 40.3.3 of the Constitution.’ (para 267 of the judgment).

However, in addition to considering the need for legislation in respect of terminations of pregnancy necessary to save women’s lives, we believe that the Expert Group should also consider the need for legislation in respect of terminations of pregnancy in cases of fatal foetal abnormality. We submit that the terms of reference of the Expert Group do encompass such cases.  Although none of the three Applicants in ABC had experienced pregnancies involving fatal foetal abnormality, the issue nonetheless arose in the ABC case judgment where the Court considered the earlier decision in D v. Ireland (ECHR, 6th September 2005, Ref No 26499/02).

In that case, which did concern fatal foetal abnormality, the Court found the application inadmissible because the applicant ‘did not comply with the requirement to exhaust domestic remedies as regards the availability of abortion in Ireland in the case of fatal foetal abnormality’ (para 103 of the judgment).

In the ABC case, the Irish Government argued that the three applicants should, like D, have brought their cases initially in their domestic courts. However, the Court ruled against the Government in respect of all three applicants, having concluded that their cases were significantly different from that of Ms D.

In respect of the first two applicants A and B, at para 148 of the judgment in the ABC case, the Court stated that:

‘..the balance of rights at issue in the D v. Ireland case were relevantly different from those at issue in the first and second applicants’ cases: in D v. Ireland the Court found that Ms D could have argued in the domestic courts, with some prospect of success, that the relevantbalance of competing interests was in her favour since one of the twin foetuses she was carrying was already dead and the other had an accepted fatal foetal abnormality.’

In respect of the third applicant C, again her case differed significantly from that of D in the earlier case. Here, the Court noted that C feared her pregnancy constituted a risk to her life and had complained under Article 8 about the lack of legislation implementing the constitutional right to an abortion in the case of such a risk (para 154). This was the argument that ultimately succeeded before
the Court.

In the D case, the Irish Government had successfully argued that:

‘there was “at least a tenable” argument which would seriously be considered by the domestic courts to the effect that a foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb. In the absence of a domestic decision, it was impossible to foresee that Article 40.3.3 clearly excluded an abortion in the applicant’s situation in Ireland.’ (para 69 of the judgment).

In accepting this argument, the Court made reference to the Fifth Progress Report of the Oireachtas Committee on the Constitution (15th November 2000). The Court noted that the Committee in the course of its deliberations had met the Masters of the three major maternity hospitals in Dublin.  At para 40 of the judgment, the Court noted that:

‘All three [Masters] spoke in favour of permitting in Ireland termination of pregnancy in cases of foetal abnormality (including neural tube defects – Ireland having the second highest rate in the world – and anencephaly) where the foetus would not survive to term or live outside the womb. Certain of the Masters noted that going abroad deprived a mother of a post-mortem on an aborted foetus and of full and proper advice and counselling on the source of the abnormality and the risk of recurrence in a future pregnancy and criticised the lack of ability to make any referral to a hospital providing the referral service or to make any arrangement for this to take place and for follow-up.’

At para 44 of the judgment, the Court noted further that, in the context of a constitutional referendum on abortion in 2002, at a press conference called on 27th February 2002 by the three Masters of the major obstetric/maternity hospitals in Dublin, the Masters stated again that the State should sanction abortion in certain cases including where a foetus would not survive outside of the womb (para. 44 of judgment).

The Court noted further that ‘Since abortions (in the case of a “real and substantial risk” to the mother’s life) were already available in Ireland and since the Masters of the main obstetric hospitals were not against terminations in the case of a fatal foetal abnormality…

the Court finds unsubstantiated the suggestion that the relevant declaratory and mandatory orders would not have been  implemented in good time [had the applicant sought a remedy before the domestic courts].’ (para 88 of the judgment).

Thus, the Court concluded in the D case that there was ‘a feasible argument to be made that the constitutionally enshrined balance between the right to life of the mother and of the foetus could have shifted in favour of the mother when the “unborn” suffered from an abnormality incompatible with life’ (para 90) and found that if she had initiated legal action before the Irish courts, the applicant’s
case would have been ‘an arguable one with sufficient chances of success’ to mean that a domestic legal remedy was therefore in principle available to her, and she should have pursued her case through the Irish courts before applying to the ECHR (para 92). Accordingly her application was deemed inadmissible.

The judgment of the Court in D v. Ireland clearly envisages that terminations of pregnancy in cases of fatal foetal abnormality would be declared lawful in Ireland under Article 40.3.3 of the Constitution, if any application were to be taken by a woman in such circumstances.  We believe that, given this legal analysis, the Expert Group should, alongside its consideration of the introduction of legislation setting out the criteria whereby terminations of pregnancy may be carried out in order to save a woman’s life (the direct issue on which the ECHR found against Ireland in the ABC case), also consider the introduction of legislation setting out the criteria whereby terminations of pregnancy may be carried out in cases of fatal foetal abnormality (as in the D case). We submit that legislation setting out criteria in both cases would be compatible with Article 40.3.3 of the Constitution, and therefore capable of being introduced without constitutional amendment.

If at this stage the Expert Group is not in a position to consider the cases of pregnancy involving fatal foetal abnormality, we submit that the Group should at least acknowledge in its final report the pressing need for introduction of legislation to enable women facing such traumatic crisis pregnancies to have their necessary medical care take place in Ireland, including if they wish, the termination of
their pregnancy.

Finally, we submit that, whether the Expert Group makes any recommendation concerning cases of fatal foetal abnormality or not, it is incumbent on this Government to introduce legislation not only dealing with the cases of women whose pregnancy poses a risk to their lives, but also setting out the criteria whereby terminations of pregnancy may be carried out in cases of fatal foetal abnormality,
where the woman wishes in such circumstances.

We would be very grateful if you, and the Expert Group, could consider our submissions seriously, and we look forward to hearing from you.


Yours Sincerely,


Senator Ivana Bacik

Eric Byrne TD
Ciara Conway TD
Robert Dowds TD
Anne Ferris TD
Dominic Hannigan TD
Senator Aideen Hayden
Kevin Humphreys TD
Sean Kenny TD
John Lyons TD
Ged Nash TD
Derek Nolan TD
Senator Susan O’Keeffe
Aodhan O’Riordain TD
Ann Phelan TD
Emmet Stagg TD
Alex White TD
Nessa Childers MEP
Emer Costello MEP
Phil Prendergast MEP
CONTACTS: Senator Ivana Bacik, Leinster House. ivana.bacik@oireachtas.ie
Ciara Conway TD, Leinster House. ciara.conway@oireachtas.ie



Previously on Bock:  No Country for Young Women

  26 Responses to “Foetal Abnormality and Termination of Pregnancy. Labour TDs, Senators and MEPs Write to Health Minister”

Comments (25) Pingbacks (1)

    Its not up to me to decide on this issue,However the choice should be there for who ever needs it


    Fair play to Ivana, she’s been to the fore of this debate for a long time and upset a lot of the more socially conservative elements in Irish politics in the process.

    However while Labour are nominally committed to legislating for the X case (it’s only been a Supreme court ruling for 20 years now…) I can’t see the old guard in FG relenting on this easily.


    If Ged Nash wasn’t called “Ned Gash” all his life, I’ll eat my hat.


    Why is this even in question ?? What a lonesome journey for a woman. Enough to discover an abnormality, enough to have to decide to abort, enough to have to face the questions of others as to what happened to the pregnancy, but to have to head off to do so, no home to the ministrations of your own mother, or indeed the comforting presence of your own four walls !! What if you can’t afford to go, what if you have children that need to be gotten to school or little ones at home? Do you go yourself without your spouse or partner.?? Similar to the Catholic Church the goverment of Ireland grants a second-class citizenship to its women. They are only as valuable as child vessels and it would seem, perhaps even less than that.


    It’s only in question because of the insane Catholic agenda that dominated Ireland since the 1850s.


    It appears as though the “insane Catholic agenda” still dominates the mindset of most of our politicians to this day. Maybe this is the reason why we’ve been waiting for so long for movement on this issue!


    Am I wrong in saying that if it’s a FATAL foetal abnormality that it should be left well enough alone..?
    Why rush to murder someone that is going to die anyway?
    Don’t jump in with the religious argument. I don’t subscribe to any of the many fairytales that abound the world and I’m not a crusty tree hugging hippie.
    I just don’t get this…
    Lady gets pregnant = HOOORAAAAY :)
    Doc gives bad news = BOOOOOOO :(
    Lady decides: “well if this baby is gonna die then it’s gonna be on my terms!”
    Is there more that I’m missing?


    “Is there more that I’m missing?”
    Yeah, a bit of cop on and sensitivity.


    Nothing will be done at this time, and for some time to come, to help, assist or in any way aid the distressed.


    Thank you for that inspirational contribution.


    Keith — I have nothing to add to the comment from FF1, but I’m guessing you have little personal experience of these things. Maybe I’m wrong, and if so, you can correct me. But you do come across as somebody with little or no understanding of the issue.

    Since you use words like murder, my guess is that you’re associated with Youth Defence or some such crowd. Am I wrong?


    Hi Keith.
    I’ll give you the benefit of the doubt and answer your question genuinely and try to explain to you what you are missing.
    I’m guessing that you have never been pregnant from your comments.
    Pregnancy is very hard physically and emotionally.
    Labour is very hard indeed.
    To have to carry a baby that is going to die to full term…….
    To have to go through that and labour…………..
    That would be very, very hard on a woman, her partner and her family.


    Hello Bock, I’m a 33 year old father of 3, not a member of Youth Defence.
    I use words like murder because that’s what it is, plain and simple.
    You can package it or dress it up any way you wish but that what it boils down too, “The unlawful premeditated killing of one human being by another”.
    FF1, I don’t wish to seem insensitive but I’m not a clown and I’m not a keyboard warrior. I asked a genuine question.
    Mairead, thanks for your comments. As mentioned above I’m a father myself. Our last baby was a very tough pregnancy with threatening miscarriages, Severe morning sickness, SPD etc followed by a 26 hour labour followed by further complications for Mother and baby so I realise how tough it all is and then to not have the “reward” of a brand new baby at the end… can only be soul destroying.
    I’m a very hands on father and invest EVERYTHING into my kids, be they still in the womb or (as my 3 year old is doing now) battering me out of my own bed at unholy hours of the morning.
    I can’t bear to think how ANY expectant parent (male or female) could feel given the news that a child they’re expecting will never live no matter how much they will or wish it to be different. I have discussed this at length with my wife who shares the same view as me.
    As I said previously, I just dont get it. I will keep thinking about it though and see if I can make sense of it. To be honest I just REALLY struggle to justify a termination in any circumstance but that’s just me and I’ve been like that since I was a teenager and will not be changing anytime soon.


    Do you think that inducing a delivery is murder? And as a supplementary, is it possible, by inducing birth, to murder a baby that has no brain?


    Hi Keith. Did you miss this question?


    women should be left alone to choose what is right for them. If they want to terminate so let it be. If you stop them be prepared to help them raise the children. You should not be involved in one issue and not the other.


    Fully agree with allowing a woman the right to choose (if the father agrees) to *ask* a medical professional to terminate a fatally ill foetus without having to travel to another country. Fully agree with the right of the professional to decline. Fully *disagree* with allowing a woman the sole (or part) decision to decide to abort a perfectly healthy one just because it doesn’t suit. (Now Lizza, are you happy :) ) Also fully hope to god, or whatever is out there, that parents who find themselves in the situation that gave rise to the post, can someday get the all support and help they need.


    A foetus is not a person. That is the law.
    A foetus becomes a person outside the womb.
    Therefore one can’t murder the unborn. Fact.
    Now when I think of abortion my skin crawls but I can’t let my feelings impinge on the right of the mother to terminate her pregnancy should she wish.
    Ireland’s position on abortion means that it’s greatest export is moral cowardice.
    However I’d hate to see abortion used as an alternative to contraception but as this is beyond the scope of this post I’ll stop here.


    I watched this documentary on the telly there recently –

    “3. “It’s Not Always A Wonderful Life” (Narrated by Melvin Van Peebles and directed by Eugene Jarecki, this segment explores the question of what led to a decline in the urban crime rate in the US during the mid- to late 1990s. The authors of Freakonomics suggest that a substantial factor was the 1973 US Supreme Court case, Roe v. Wade, in the US which permitted people to have legal abortions, leading to more wanted children with better upbringings”

    I’m sure they mentioned the Donohue-Levitt hypothesis, which proposes the same effect.

    It’s all well and good people proclaiming what they disagree with.. but are they going to do the rearing?

    And in terms of foetal abnormality, at the minimum we shouldn’t be forcing women affected by this to skulk off abroad. It’s a disgrace.

    People like Keith piss me off with the flippant comments and calling it murder.. with his Waltons family life, can’t see beyond his own fucking nose.


    Years ago when debating the odds with a “Youth Defence” stormtrooper
    I suggested that sex education would go a long way toward preventing unwanted pregnancies she got very angry and revealed her true colours.
    YD is a fascist Roman Catholic organisation with Opus Dei roots wanting to control
    all aspects of that most basic of human urges.
    My suggestion is to give all girls approaching menarche a Persona machine and explain to them that the consequence of careless sex is that “You’ll be left holding the baby”.
    Same as it ever was.


    Jesus FF1, you are a piece of work! Think you might need to take a step back from that keyboard, take a few breaths and stop trying to promote abortion as a means of “future” crime prevention. You’ve been watching too much Minority report! Waltons family life my arse. You don’t know me, please do not make assumptions about my life.

    Bock, I’m sorry but I did miss your question… To induce a delivery, in theory, is not murder but surely it depends on the term of the foetus, no? Also, on your supplementary I have to say I honestly do not know. I don’t have all the answers Bock and wasn’t trying to “stir the shit” with my previous comments. If I come across as sharp or insensitive it’s because I’m writing in a hurry which I shouldn’t be doing given the gravity of the subject matter and the possibility of causing distress to somebody with real experience of such matters or even God forbid to FF1 who seems to have opinions on almost every post you put up.
    Getting back to your supplementary question: I have to say no it’s not. If a foetus has no brain then it has no nerve centre and nothing to tell vital organs what to do etc when it has to operate on its own after being born therefore it has no hope of survival. But that brings me back to my original comment/point. Having said that I have little or no faith in the medical profession as a whole, specifically not on this little island of ours so I would find it very hard to accept such bad news in the first place but doubly hard to accept it from a Doctor in this country.
    I’ve spent too much time thinking about this one and think I’ll just go back to my idylic ilfe for now. Goodnight John boy!


    Keith — Anencephaly isn’t diagnosed by accident. It’s not a matter of a doctor’s opinion. Unfortunately, Ronan Mullen and his supporters, in all their Catholic smugness, dismissed women in precisely this predicament, calling them murderers.


    Keith, I’m not trying to promote abortion as a crime prevention.. I linked to a recently documentary I watched – ‘Freakonomics’ – where some economists discussed this – based on some research. Not based on a movie.

    RE – “Why rush to murder someone that is going to die anyway”
    “I use words like murder because that’s what it is, plain and simple.
    You can package it or dress it up any way you wish but that what it boils down”

    No it doesn’t boil down to murder and it’s not so plain and simple..

    So sorry for the Waltons remark, but I fail to see what your kids -” Be they still in the womb” meaning EVERYTHING to you, has to do with women in this predicament?


    Keith is being conciliatory. Consider the possibility of being likewise.


    I thought I was..

    Oh alright then, night John-boy.

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