The Case for an Abortion Tribunal in Ireland

Section 1: Abstract

This paper:

(a) provides a brief analysis and discussion of the literature dealing with abortion and the law, specifically describing the many differences between definitions of when life begins, who is involved in issues to do with abortion (mother, father, zygote [unborn], and society). The literature review concludes that no single view on abortion can be said to have the unalloyed support of a majority of the Irish people, and therefore some compromise is necessary

(b) suggests that in the absence of a clear legal and societal consensus as to when abortion generally should and should not be permitted, a method of decision-making should be effected whereby decisions are made on a case by case basis, taking into account as best as possible the interests of all the stake-holders, in order to provide a reasoned basis for the permission for abortion in a society where there is no general consensus as to what is permissible and

(c) examines one or two models familiar to Irish law dealing with similar issues, in particular mental health tribunals, and proposes how such a decision-making body, entitled the Abortion Adjudication Panel should be set up. The study concludes with a short model statute defining the constitution and functions of such a body, and methods of appeal therefrom.

Section 2: Literature survey

(a) Pro Choice Literature

Judith Jarvis Thompson (1971) in her A Defence of Abortion accepts for the sake of argument that the fetus from conception has moral status but concludes that the women’s right to consent outweighs the right to life on the basis that a women is under no moral obligation to support a fetus against her wish. Abortion does not violate the fetus’s right to life but merely deprives the fetus of something—the use of the host—to which it has no right. Thus, it is not that by terminating her pregnancy a woman violates her moral obligations, but rather that a woman who carries the fetus to term goes beyond her obligations.

John Finnis (1973) concludes that the fetus personhood or potential personhood makes abortion morally wrong even in the case of rape

David Boonin (1997) concludes that the Thompson defence is good not only for rape cases but also where consent was given because even if the woman is responsible for the fetus existing, she could not have caused the fetus to exist without it being dependent on her, she is not however responsible for the fetus’s need to use her body as a host.

Kenneth Einar Himma (1999) concludes that he accepts the Thompson general view that the right to life does not imply the right to use another persons body to vindicate that right , however in the specific case of the mother and fetus the view does not hold because the parties do not have a history of physical independence and the fetus is not an autonomous moral agent capable of incurring obligations

John K Davis(1999 ) rejects Himmas’s thesis of the physical independence condition and also concludes that a non- Hohfeldian view of rights allows rights to be exercised where there is no corresponding obligation.

Mary Anne Warren (1989) in her essay “The Moral Significances of Birth” concludes that pregnancy is such an intimate relationship between the mother and the fetus that to give equal protection to both infringes the mothers basic rights. Birth severs this intimacy and although the infant is not instantly transferred into a person it can be protected without negating the basic rights of the mother because it is independent of the host. This protection can not be extended to late term fetuses even if capable of sentience and of a high moral standing because of the intimacy of the mother and fetus gives the mother a preferential right.

Catriona Mackenzie (1992) Abortion and Embodiment

Rosiland Pollack Petchesky (1987) The Power of Fetal Images

Susan Himmelweit (1988) More Than a Woman’s Right to Choose

Catharine A. MacKinnon (1991) Sex Equality

Janet Gallagher (1987) What’s Wrong with Fetal Rights

(b) Anti-Abortion Literature

Raanan Gillon (2001) concludes that personhood is a theological rather than a moral issue and that a number of “standard positions” of when personhood or moral status begins have emerged. At one end of the spectrum is the Catholic Church position that moral status is attained at conception by ensoulment or must be treated as such even if we do not know the exact moment at the risk of making a mistake; next is the Primitive streak which occurs after 14 days; then the “quickening” after 20-21 weeks when the women can feel the fetus. Brain life and the capacity for sentience are the next way points followed by viability of the fetus to survive independent of the mother and then to the end of the spectrum where the fetus and even the newborn must have the capacity for autonomous thinking and perhaps also social acceptance. He suggests that the arguments for moral status at conception and awareness at either end of the spectrum, and are more sustainable than for those in between.

John Finnis (1973) concludes that the Fetus personhood or potential personhood makes abortion morally wrong even in the case of rape

(c) Abortion as a Relativist Problem

Although the literature on the law of abortion appears to fall into two broad strands, most commentators decline to adopt either and prefer some illogical and equivocal admixture of both, thus negatingthe primary rule of morals, which is that a moral rule should jot be subject to inchoate exceptions.

First, there are those whose primary stance is to argue from a morally absolutist position, that abortion should be proscribed. Some of these will argue that abortion is acceptable in various situations, such as rape, suicide of the mother, etc.

Within this second strand, there are commentators like Mary Anne Warren (2005) who sidestep the issue by suggesting that though abortions should not be proscribed, the necessity for late abortions should where possible be obviated by societal intervention.

Secondly, there are those who argue from a morally relativist position, that the right to life of the foetus is counterpoised by other rights, such as the right to choose. The majority of commentators find the absolute positions difficult to sustain and argue, with greater or less conviction, in favour of some moral compromise, which they adjudge to be sufficient to form a basis for normative often legal intervention.

Thus Bonnie Steinbock (2005) suggests that though women have an obligation to avoid inflicting pre-natal harm, there may be occasions when the infliction of such harm is in fact morally permissible, e.g. to defend the mother’s rights to privacy, bodily integrity and autonomy.

Section 3: The legal position in Ireland contrasted to England, Wales and USA

Image Credit: Toronto Sun

Abortion is defined as the destruction of life in utero and homicide as the destruction of life ex utero. The legislative provisions on abortion are set out in Section 58 to 60 in the Offences Against the Person Act 1861;

• Section 58 provides for life imprisonment for “performing or procuring an abortion”
• Section 59 provides for five years imprisonment for “providing the equipment or poison or other noxious article used to perform an abortion”
• Section 60 provides for two years imprisonment for “concealing the death of a child, whether it died before, during or after birth”

Article 40.3.3 as amended in 1983 sets out the constitutional provisions;

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.

Which appeared to make any abortion illegal, however the Supreme Court in the X case on the basis of “the equal right to life of the mother” there is a “real and substantial risk to the life, as distinct to the health, of the mother” in addition that there is a right to travel to procure an abortion outside the state and receive information in the State about abortion outside the State.

A further referendum enshrined the travel and information right in the constitution at 40.3.3

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

and enacted in statute by The Regulation of Information (services outside the State for termination of Pregnancies) Act 1995.

However the Act also prohibited the promotion or advocacy of abortion while providing information. The Supreme Court in the Y case in 2007 continued to apply the X case.

In contrast in England and Wales (which does not have a written constitution) abortion is codified in the Abortion Act 1967 (as amended in 1996) and is permissible by a doctor if two other doctors form an opinion in good faith that;

(a) the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b) the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated;

(d)or, that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

In addition the Act provides that when determining whether the continuance of a pregnancy would involve such risk of injury to health, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

In the USA the right to abortion is derived from its Constitution. The US Supreme Court in Roe v Wade ruled, that the 14th Amendment (which deals with the right to privacy), that a right to abortion is an ancillary right to the right to privacy and abortion is permissible until fetal viability occurred in the third trimester.

The 1981 Act and the Constitution still bans abortion albeit the Supreme Court has interpreted this as a conditional ban.

It is permitted to receive information about abortion in other jurisdictions and to travel outside Ireland to obtain one but not to promote or advocate abortion when supplying this information.

Despite the changes, the law in Ireland is still unclear and has not obtained the constitutional or statutory certainty of other jurisdictions In the absence of a clear legal and societal consensus as to when abortion generally should and should not be permitted, a method of decision-making should be effected whereby decisions are made on a case by case basis, taking into account as best as possible the interests of all the stake-holders, in order to provide a reasoned basis for the permission for abortion in a society where there is no general consensus as to what is permissible.

Section 4: Similar models – MHT, Human Embryology Authority in England

The CAHR having concluded that both the ethical and legal position on AHR in Ireland and were lacking in clarity;

“Article 40.3.3 of the Irish Constitution provides constitutional protection for the ‘unborn’. It is not clear whether protection applies from fertilisation or from some subsequent point in the process”.

“The [ethical] evidence also indicates that the treatment of the in vitro embryo is a complex issue on which public opinion is divided. The Commission itself was unable to reach unanimity.”

It went on to recommend that a new Act of the Oireachtas should be passed to establish a regulatory body and its functions would be the issuing of mandatory licences to service providers who followed its guidelines. It would also take a direct decision-making role in cases “where embryos are abandoned, where the commissioning couple cannot agree on a course of action, where the couple separates or where one or both partner(s) dies or becomes incapacitated.”

In the UK, the Human Fertilisation and Embryology Authority (HFEA) was established by the Human Fertilisation and Embryology Act of 1990. The HFEA issues licences to labs and clinics that conduct assisted reproduction and embryo research. It also regulates the storage of gametes and embryos.

The Authority is selected for their personal expertise and not as representatives of any groups and more than half of the members must come from disciplines other than medicine or human embryology. The MHA was enacted to address modern thinking on mental illness and its treatment and the radical change from the paternalist nature of the doctor/patient relationship to the recognition of autonomous rights of patients.

It provides for the setting up of MHT’s composed of a lawyer, psychiatrist and layperson who are charged with deciding if the decision of the treating psychiatrist to detain a person is in accordance with the following criteria:

• that the person is suffering from a defined mental disorder and
• that not to detain would cause serious harm to the patient or others and or the mental disorder is such that not to detain the person would lead to a serious deterioration in his condition or would prevent the administration of treatment and
• that the detention and treatment will benefit the person to a material extent.

In coming to its decision it must have regard to the best interests of the patient but the interests of others who may be affected is to be taken into account in doing so. It is clear that laws can and will be enacted to regulate competing interests.

Section 5: How the Abortion Review Panel might operate

(a) Purpose

The purpose of the of the RP is to (a) affirm or revoke a decision to abort by the mother and (b) in the event of a decision to revoke to make such orders as it considers reasonably necessary to protect the interests of the mother and fetus. The guiding principle in coming to a decision shall be the best interest of the mother with due regard being given to the interests of other persons (which shall include the fetus) who may be reasonably considered by the RP to be affected by its decision.

(b) The Review Panel

1. The Panel shall consist of three members , at least two of whom are women.

(a) one should be a practising lawyer

(b) one should be medical doctor

(c) one other who should be neither a lawyer nor a medical professional

2. At a sitting of the panel each member shall have a vote and every question shall be determined by a majority vote.

(c) The Hearing

1. The RP shall hold sittings for the purpose of a review by it and at the sittings may receive submissions and such evidence as it thinks fit.

2. The RP may, for the purposes of the functions of the review —

(a) direct in writing any person whose evidence is required by the panel to attend before the panel to give evidence and to produce any document or thing in his or her possession or power specified in the direction

(b) direct in writing any person to send to the tribunal any document or thing in his or her possession or power specified in the direction, and

(c) give any other directions for the purpose of the proceedings concerned that appear to the tribunal to be reasonable and just.

3. If a person gives false evidence before a panel in such circumstances that, if he or she had given the evidence before a court, he or she would be guilty of perjury, he or she shall be guilty of that offence.

The procedure of a panel in relation to a review by it shall be determined by the panel and the panel shall make provision for;

(a) notifying the medical doctor responsible for the care and treatment of the applicant the subject of the review and the applicant or his or her legal representative of the date, time and place of the relevant sitting of the tribunal,

(b) giving the applicant the subject of the review and her legal representative a copy of any report furnished to the tribunal

(c) subject to subsection (11), enabling the patient the subject of the review and his or her legal representative to be present at the relevant sitting of the tribunal and enabling the patient the subject of the review to present his or her case to the tribunal in person or through a legal representative,

(d) enabling written statements to be admissible as evidence by the tribunal with the consent of the patient the subject of the review or his or her legal representative,

(e) enabling any signature appearing on a document produced before the tribunal to be taken, in the absence of evidence to the contrary, to be that of the person whose signature it purports to be,

(f) the examination by or on behalf of the tribunal and the cross-examination by or on behalf of the patient the subject of the review concerned (on oath or otherwise as it may determine) of witnesses before the tribunal called by it,

(g) the examination by or on behalf of the patient the subject of the review and the cross-examination by or on behalf of the tribunal (on oath or otherwise as the tribunal may determine), of witnesses before the tribunal called by the patient the subject of the review,

(h) the determination by the tribunal whether evidence at the tribunal should be given on oath,

(i) the administration by the tribunal of the oath to witnesses before the tribunal, and

(j) the making of a sufficient record of the proceedings of the tribunal.   A witness whose evidence has been, is being or is to be given before the panel in proceedings under this Act shall be entitled to the same privileges and immunities as a witness in a court. Sittings of a Panel shall be held in private.

(d) Appeals

No appeal shall lie against a decision of the RP other than an appeal on a point of law to the Circuit Court.

Section 6: Conclusion

Since there is no agreed moral position as opposed to a moral compromise, which a majority of the Irish electorate would regard as acceptable, and since the decision to undergo a termination impacts on the interests of many stakeholders, this paper argues for the creation of an abortion regulator and an abortion adjudication panel which will remove the responsibility of taking care of all interests from the mother where at present such responsibility rests.

Main Image Credit: Sculpture of a Pregnant Woman