Attorney General should have role in vindicating rights of unborn
It is the AG’s duty to guard constitutional rights and to initiate action to vindicate such rights
Measure of protection
There can be little doubt that the provisions of sections 9 to 14 are intended to afford a measure of protection to the foetus and that, at least insofar as it would no longer be possible for a woman to claim dishonestly to a medical practitioner that she was suicidal because of her pregnancy and for that medical practitioner, acting honestly or otherwise, to terminate her pregnancy purely on the basis of her claim. Such an action would of course be unlawful, at least on the part of the woman and possibly or probably on that of the medical practitioner, but the proofs necessary for a successful prosecution would rarely, if ever, be available. To that extent the provisions of sections 9 to 14 do extend some measure of protection to the foetus. The question arises, however, of the adequacy of such protection. I have no wish to be disrespectful to the medical profession (for which I have and have reason to have the utmost respect) or to the psychiatric branch thereof but I find it difficult to accept that an examination by the group of three practitioners referred to in section 9 (1) would be the best or even an appropriate method of assessing the bona fides of a woman’s claim to suicidal ideation.
Certainly the expert opinions of an obstetrician and of two psychiatrists would be of great assistance and would indeed be essential in assessing a degree of risk of suicide once such risk exists. But the business of establishing or otherwise the bona fides of a claim of suicidal ideation is surely forensic in nature and requires procedures and skills for which expert psychiatric opinion might well be of great assistance, but which it is at least doubtful that it could be adequately discharged simply by an examination such as is envisaged by section 9 (1) (b). In this context one wonders why the words “in good faith” and “reasonable” were thought necessary or appropriate in the drafting of section 9 (1).
While it is not explicitly stated in the Bill, the examination provided for in section 9 would take place at the request of the woman or of someone on her behalf. This is explicitly the situation in relation to a review under sections 10 to 14. Of its nature, the foetus has not and cannot have any say personally in relation to the initiation of procedures under section 9 or under sections 10 to 14. That does not necessarily mean that ways of advocating its interests could not be devised. At this stage it is well to revert to the provisions of article 40, section 3, subsection 3 and to recall that they provide for an equality of the rights to life of the mother and of the foetus. They also require the State in its laws to respect and, as far as practicable, by its laws to defend and vindicate the right to life of the unborn. The State has a similar obligation, otherwise under the Constitution, in relation to the constitutional rights of the mother and specifically her right to life. Under section 9 of the Bill the mother is given the legal right to apply for a certificate which would enable her to have the right to life of the foetus set at nought and, under sections 10 to 14, in the event of her failing to get the section 9 certificate, to apply to a committee set up under section 12 for a review of the decision made under section 9. She gets two chances to have the life of the foetus terminated. At both hearings or examinations she has, very properly, the explicit right to be present and to be heard. As matters stand at present, the foetus gets no chance to have its right to survival advocated at all or otherwise vindicated. It is hard to see how this could be regarded as consonant with the Constitution and in particular with the clear provisions of article 40, section 3, subsection 3 calling for a vindication of its equal right to life. Surely that calls for an equality of opportunity to have both rights to life adequately asserted.