In an article in Saturday’s Irish Times,
Eamonn Barnes, who retired in 1999 after 25 years as DPP, says it is
“hard to see” how the proposed suicide clause is consistent with article
40 of the constitution, which refers to the “equal right to life” of
the mother and the unborn.
He suggests that, when
doctors are considering a termination on suicide grounds, the attorney
general should represent the interests of the unborn at all stages of
proceedings and be empowered to initiate judicial review of a decision.
In line with the X-case ruling of the
Supreme Court in 1992, the Protection of Life During Pregnancy Bill
provides for a medical abortion where there is a real and substantial
risk of loss of the woman’s life by way of suicide.
In
cases of suicidal intent, a panel of three specialist doctors must
jointly certify that the risk to the mother’s life can be averted only
by carrying out the termination.
Pointing out that
the Bill allows the mother to apply for a review of the decision if she
is refused a termination, Mr Barnes writes: “She gets two chances to
have the life of the foetus terminated . . . As matters stand at
present, the foetus gets no chance to have its right to survival
advocated at all or otherwise vindicated.”
“Surely,” he writes, article 40 “calls for an equality of opportunity to have both rights to life adequately asserted”.
The
Bill says the three specialists assessing cases involving suicidal
intent must include an obstetrician and two psychiatrists. Mr Barnes
expresses concern about these procedures, saying he finds it “difficult
to accept” that a group of three doctors would be the best way of
assessing the “bona fides” of a woman’s claim to be suicidal.
While
psychiatric expertise would no doubt be of assistance in “ascertaining
the reality of claim that a woman is suicidal because of her pregnancy”,
he writes, it could “scarcely be asserted that such expertise is
peculiarly or exclusively appropriate” in arriving at a decision.
“Obviously
this would be particularly true of a case where a woman would make a
spurious or dishonest claim of suicidal ideation for the purpose of
obtaining a termination of her pregnancy under the provisions of the
Bill if enacted in its present form,” he adds.
Proposing
changes, Mr Barnes suggests the attorney general should be the person
to ensure that the constitutional right to life of the unborn should be
vindicated at all stages. The attorney should also initiate any
application for judicial review which “might appear appropriate”.
Where
a termination is granted under the suicide clause, there should be a
short delay before a termination is carried out so as to enable judicial
review to be taken. “Devising procedures to enable this to happen
should not be beyond the wit of mankind,” writes Mr Barnes.
As
DPP in 1992, Mr Barnes had a role in the drama that culminated in the
landmark X-case judgment. Early that year, a family told gardaí their
14-year-old daughter had been raped by a neighbour and was pregnant.
They said they intended to bring her to the UK for an abortion.
Mr
Barnes referred the matter to the then attorney general, Harry
Whelehan. He sought an injunction to prevent the girl leaving the
jurisdiction, believing the 1983 amendment required the State to do so
to protect the unborn child’s life.
The High Court granted the
injunction but the case ultimately ended up in the Supreme Court.