Six successive Irish governments have failed to enact laws in accordance with a constitutional amendment that gives the mother and her unborn baby equal right to life

It is a tragedy that the 31-year-old Savita Halappanavar had to die in the 21st century, not in a back-of-beyond “third world” country, but in Ireland, which ranks among the world’s most highly developed countries, and is high on the health index. Its maternal mortality and infant mortality rates are one of the lowest in the world.

There is worldwide outrage at Savita’s death because it is seen as a global tragedy, perpetuated by a fundamentalist religious nation, steeped in archaic beliefs and laws. Ireland is a Catholic country and by deduction, the world has condemned the Catholic church for the existence of such archaic and barbaric laws which led to the death. But can we put all the blame on the Catholic Church?

Not much of an attempt has been made to understand the law as it exists in Ireland. The world at large cannot be blamed for this because the Irish themselves do not seem to understand their own law, certainly not the medical community.

The Eighth Amendment

Let me try to decipher the law: Right to life is governed by sections 58 and 59 of the Offences Against the Person Act, 1861. Even though Ireland became independent in 1922, British law still holds sway. Under the above law, abortion is a criminal offence; those convicted can be sent to jail for a maximum of five years; those liable to be convicted include doctors who carry out the abortion. The law was much more severe earlier — in 1957 an abortionist doctor was sent to the gallows after the death of a patient.

By the Eighth Amendment to the Constitution of Ireland, approved by a referendum in 1983, the following paragraph was inserted as paragraph 40.3.3:

“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.”

The amendment has three parts:

1. The unborn has the right to life

2. The mother has equal right to life

3. Necessary laws must be enacted to validate the above right.

Thus, the right to life of not only the unborn, but also of the mother has been guaranteed. This means that when there is danger to the life of the mother, abortion could be an option. The Constitution is the supreme law of the land. Therefore, from 1983 onwards, whatever was laid down in paragraph 40.3.3 was technically available to the citizens.

In 1992 the Supreme Court of Ireland ruled in X that abortion was permitted if there was “a real and substantial risk” to the life of the mother. The Attorney-General had sought an injunction against a 14-year-old girl, pregnant from rape, from travelling abroad for an abortion. The court ruled that “there is real and substantial risk to the life, as distinct from the health, of the mother,” which included the risk of suicide, and therefore abortion was permitted, but abroad. As it turned out, the girl suffered a miscarriage, and did not need to have an abortion. The twelfth and twenty-fifth amendments, which proposed removal of the threat of suicide as a ground for abortion, were thrown out in a referendum. Subsequent amendments to the Constitution, through referendum, allowed women to travel abroad for abortion and also to have information regarding availability of such services abroad.

European court ruling

The issue received global attention again on December 16, 2010, when the European Court of Human Rights ruled that there is no inherent right for a woman to have an abortion. The court also held that Irish law struck a fair balance between women’s rights to their private lives and the rights of the unborn. However the court found that Ireland violated the European Convention on Human Rights by “failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under the current Irish law.”

Dáil, the Parliament of Ireland, had to enact laws in accordance with the two principles laid down in the constitutional amendment, the spirit of X and the ruling of the European Court of Human Rights. However, six successive governments failed to enact laws.

The net result is that the onus of codifying the criteria as to what constitutes “risk to the life of the mother” rests with the doctor. The doctor is also responsible for applying the criteria to each individual case. If the doctor gets the criteria wrong s/he can be prosecuted. There is not even an indicative list provided by the government or by the medical council. If the doctor gets the application of the criteria in an individual case wrong, s/he can be sent to jail for up to five years. Fortunately, capital punishment has been taken off the statute!

In the final analysis whom do we blame for the untimely death of a woman whose life could have contributed so much to the happiness of the family and the community at large? The Catholic Church? The Irish Parliament? Or the doctors at Galway University Hospital?

The view of the Catholic Church is very clear: choose the lesser evil. If there is danger to the life of the mother and she cannot be saved except through an abortion, the church not only permits, but commands that abortion must be done to save the life of the mother. In a country that wears Catholicism on its sleeve, the medical profession should have followed the Church diktat, especially after having commented that “Ireland is a Catholic country.” If they had done so, Savita would be alive today. Therefore, it is unfair to hold the Catholic Church responsible for Savita’s death.

When the Eight Amendment clearly states that the mother has equal right to life, and the Irish Supreme Court and the European Court of Human Rights have unequivocally said that abortion is permissible if the mother’s life is in danger, why didn’t six successive Parliaments enact laws laying down conditions under which it would be allowed? This is an unpardonable failure. Politics in Ireland seems to be as murky as politics in India.

And what about the doctors? Days before her death (at least from October 24) it was evident that she could be contracting septicaemia (blood poisoning), that may lead to death, if the fetus was not aborted. Doctors knew there was no chance for the fetus to survive. If so, why did they not follow the constitutional mandate to give the mother her right to life? There can be only two answers to that question: ignorance of the law, or plain incompetence.

(K.J. Alphons is a former IAS officer and ex-MLA.)

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