Irish Examiner Wednesday December 9th 2009
Case seeks to clarify deadly grey area
The rights of mother and the foetus are competing when the health of one means the death of the other, Writes Europe Correspondent Ann Cahill
THE Grand Chamber of the European Court of Human Rights gathers today to hear the case of three women challenging the ban on abortion in Ireland.
The chamber of 17 judges is only assembled to hear cases that raise serious questions on the European Human Rights Convention - a document Ireland has signed up to together with the 47 members of the Council of Europe. This is a completely separate body to the European union.
The court's decision - which will not be available for months - is binding, but is unlikely to force Ireland to introduce abortion on demand. If it finds in favour of the women, it will insist that Irish abortion law respects their human rights.
Julie Kay is an international expert on reproductive law working now in the US but she is well aware of the Irish "Catch 22" situation in relation to abortion. She has been working for the past few years with the three women who have agreed to take their cases to the court in Strasbourg.
An Irish woman can be jailed for life if she has an abortion in Ireland, but if she can afford to travel she can get one abroad legally. Malta is the only EU country with more stringent law where it is illegal for women to have an abortion outside the country.
The state has no figures for abortions and the only ones available are from the British clinics where about 4,000 Irish women a year say they are from Ireland. Many more go to the Netherlands and Spain where costs are lower, according to the Irish Family Planning Association that is supporting the latest case.
But even these figures, although low by international standards, are higher than those for Belgium and the Netherlands where abortion is legal.
The case revolves around Article 40.3.3 of the Constitution that states: "The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."
But the rights of the mother and the foetus are competing when the health of one means the death of the other.
"The state has a right to protect prenatal life, bit not at such a high cost to the woman - there is no balance in Irish law and the Irish Constitutions requires that there be as fair a balance as is practicable," said Ms Kay.
The three women involved in this latest case represent typical cases where it might be decided that the woman's right to life and health was paramount and so could allow her an abortion in Ireland.
In one case, the foetus had no chance of surviving; in another the mother's life was at risk from cancer and in the third the mother was unable to cope with an addition to her family.
"It's difficult to get any real discussion on this issue, but it's a reality for a lot of women who need a solution - and going abroad is not the answer," she said.
The X case in the early 1990s made it clear that abortion was allowable when a woman's life is at risk, but the courts or the state have not said just when this is the case.
"She has a right, but this right is hollow as there are no services available.
"Physicians face life in jail if they were found to be performing abortions illegally. They need some kind of guidelines to say what they are doing is legal."
This is not the first time the court has dealt with abortion issues from Ireland. Two years ago they refused to give a ruling on the D case where a 45-year-old woman lost one of the twins she was carrying and the second had a fatal syndrome that meant it would die days after birth.
She had an abortion in Britain and had to return home without receiving counselling or support or information on the likelihood of her suffering further similar pregnancies.
But the court said she should have taken her case to the Irish courts.
Lawyers say their action as telling the Irish authorities to clear up the issue and a statement from the court made it quite plain that she had a case that could be dealt with by the Irish courts and they believed it was important to give the courts an opportunity of interpreting the Constitution.
The judges' statement said the X case had recognised an exception to the constitutional ban on abortion when the mother's life was at risk from self harm. This had shown that the Irish constitutional courts could develop the protection of individual rights through interpreting the Constitution.
Their statement said: "It was particularly important in a common law system to allow the courts to develop constitutional protection for fundamental rights by way of interpretation, particularly when the central issue was a novel one, requiring a complex and sensitive balancing of the constitutionally enshrined equal rights to life and demanding a delicate analysis of country-specific values and morals."
At the time they also said that from the evidence they had heard: "Since abortions (in the case of a real and substantial risk to the mother's life) were already available in Ireland and since the evidence was that the masters of the main obstetric hospitals were not against terminations in the case of a fatal foetal abnormality, the court considered that the relevant declaratory and mandatory orders could have been implemented in good time."
Since then there has been no effort made by the courts or the Government to clarify the situation or balance the equal rights to life mentioned in the Constitution.
Many believe that the Grand Chamber might now do so, as it did in the Norris case that successfully challenged Ireland's criminalisation of gay people.