Anti-choice logic untenable in cases of fatal foetal abnormality

I write for The Irish Times for the first time as Deirdre Conroy, having retained my anonymity since February 2002 when I wrote in my former Irish name, Deirdre de Barra.

On that occasion my letter to the newspaper initiated a debate on fatal foetal abnormality (FFA) and the choice a woman should have to terminate a wanted pregnancy where the baby’s congenital defects are incompatible with life. She should be able to give the baby a dignified burial, to limit the suffering on the mother and family.

Since the outcome of the inquest into Savita Halappanavar’s death I have been compelled to speak publicly about the State’s defence in the case I took to the European Court of Human Rights, D v Ireland. I remind anti-choice campaigners that the baby I buried is not an abortion.

I haven’t spoken of the long shadow cast over the last 11 years because I didn’t know it would turn out like this. Being turned away from a Dublin hospital to seek help elsewhere; the subsequent need for an emergency operation when I returned; having to conceal the fact of a termination; and four years later to be told by the Irish State that I should have gone to court here to seek permission for treatment here has had a chilling effect on my trust in the legislators. My privacy and the protection of my children’s privacy was paramount at all times.

The effects of the stigma in this country attached to any form of termination for any reason cannot be underestimated. Imagine how much worse it is to endure that stigma when your wanted baby has fatal chromosomal defects.

The anti-choice argument leads back to one point: the protection of the unborn, even in the case of FFA; that a breath of life is mandatory no matter what cost to mother and family.

I have sat through three days of Oireachtas health committee hearings and listened to countless media interviews only to hear mainly men pronounce unequivocally what I should have done, to suit their belief system, to carry on growing a baby that would die, ignoring the impact on my "born" children.

I reject Minister for Health James Reilly’s recent comment, following advice from the Attorney General, that “it would be extremely difficult” or “nearly impossible” to include an amendment in the Protection of Life During Pregnancy Bill (based on the X case), to provide for cases of fatal foetal abnormality.

I want to bring the following to their attention, which details what could be developed from X. In its defence in my case in 2005, the State argued that:

“. . . the actual decision in the X case graphically demonstrated the potential for judicial development in this area.”

“. . . while Article 40.3.3 plainly excludes a liberal abortion regime, the courts are nonetheless unlikely to interpret this provision with remorseless logic, regardless of the personal circumstances of the woman seeking a termination in Ireland. The X case clearly holds out the possibility of the further development of the law in this area where, for example, the continuation of the pregnancy seems pointless or is not medically advised or where to do so would be oppressive and at odds with humanitarian considerations.”

The case in the European Court of Human Rights did not go ahead because I had not exhausted the remedies in the Irish courts. The year after that decision, 2007, a 17-year-old woman carrying a foetus with anencephaly sought remedy through the Irish courts. Instead of this providing the opportunity for the State to address FFA, as it had argued, the young woman had to endure spits and jeers entering and leaving the court. The remedy? She was allowed to travel to England for a termination.

The protection of the unborn argument is untenable in the case of FFA. There is no protection afforded the unborn in the Constitution; the State allows women to leave with the blessing of the 13th Amendment to terminate pregnancies. As long as it doesn’t take place on Irish soil.

However, expert witness for the State Dr Gerard Hogan argued the definition of the "unborn" in its defence in D v Ireland.

“ . . . the argument that ‘unborn’ presupposes that the foetus could in fact be born alive could certainly have been advanced by the applicant [me] and, if advanced would have received serious consideration by an Irish court. If, factually, it had been established that the foetus here had no realistic prospect of being born alive, then at least a tenable argument could have been made to the effect that this foetus was not an ‘unborn’ for the purposes of article 40.3.3.

“Indeed, even if the foetus in that instance was an ‘unborn’ for the purpose of article 40.3.3, its right to life might not have actually been engaged in this case, given that it had no realistic prospect of life outside of the womb.”

In Ireland’s supplemental observations to counsel, it declared:

(i) No issue remotely comparable to the present case has ever been considered by the Irish courts;

(ii) The issue of what constitutes “unborn” for the purposes of article 40.3.3 has not received any real judicial consideration.

“Dr Hogan asserts that the argument that the protection afforded to the unborn attaches to the viable foetus is a matter that would have received serious consideration by an Irish court. It is respectfully submitted that Dr Hogan’s opinion is persuasive and indeed compelling.”

There is no longer an excuse to prolong the heartache for women and their families in a situation of a wanted pregnancy diagnosed with fatal foetal abnormality. There is clear evidence in D v Ireland that it could be legislated on.

Had I attempted to exhaust my options in the Irish courts as upheld in the State’s defence, based on the timing from X’s injunction on February 7th, 1992, to decision on March 5th, 1992, I would have been 23 weeks pregnant by the time I had got a decision, with one dead foetus and one unviable twin. A woman died last year because she was forced to wait.