The life of the mother

A great number of the submissions received by the committee maintained that abortion is never necessary to save the life of the mother. Many submissions suggested that the Institute of Obstetricians and Gynaecologists and the Irish Medical Council are in agreement with this submission. Thus the Tralee Charismatic Prayer Group headed their petition:

We, the members of the Tralee Charismatic Prayer Group, are absolutely opposed to the legalisation of any form of abortion in Ireland. We have the backing of the Medical Council and the Institute of Obstetricians and Gynaecologists who are authorities on this matter and say that abortion is never medically necessary and should not be legalised under false pretences. We favour a pro-life worded referendum to absolutely ban abortion.

Where a matter is complex and technical it is reasonable for those of us who are non-specialists to rely on authoritative sources. In this chapter the positions of the Institute of Obstetricians and Gynaecologists and of the Medical Council are examined.

In the discussion of the definition of abortion the committee found that there was a wide range of meanings for the word. Therefore abortion could not be used with safety in legal formulations without at least qualifying it in some way. In the sense in which many lawyers and doctors commonly use the word, abortion may be necessary to save the life of a mother.

Many doctors and lawyers readily use abortion in this morally neutral sense because an abortion carried out by a doctor to save the life of a mother is lawful. Such abortions are also moral in the view of the major religious bodies. Catholic teaching describes these lawful and moral abortions as 'indirect abortions'.

Direct/indirect The direct/indirect distinction derives from the moral doctrine of 'double effect'. This doctrine applies where an action has two effects, one good and one bad. The termination of a pregnancy to save the life of a mother is an example. The killing of the unborn (the bad effect) results in the survival of the mother (the good effect).

The doctrine sets out the criteria that must be satisfied to justify such acts. Firstly, the purpose desired must necessitate the means adopted. Thus if another means could be used to achieve the good effect without involving the bad effect it must be used.

Secondly, the good effect must outweigh the bad effect. Thirdly, to satisfy the moral principle that the end never justifies the means, the means chosen must lead indirectly and not directly to the evil effect. In saving the mother the means must only indirectly involve the life of the unborn (the unborn must not be targeted).

The removal of the cancerous womb of a pregnant woman would satisfy this criterion because the womb is being directly removed and the abortion of the unborn is an indirect consequence. In an ectopic pregnancy sited in the fallopian tube the tube may be removed surgically to avoid dangerous complications but the death of the unborn is a side-effect and therefore an indirect abortion.

It should be noted that the use of the direct/indirect distinction implies that there are permissible indirect abortions.

The pro-life medical position is based on a distinction between direct and indirect abortion so it does not want a total ban. Catholic teaching, being the source of the distinction, does not want a total ban either. The committee, with its responsibility to protect and promote the common good, simply could not entertain an absolute constitutional ban on abortion because it would throw into jeopardy the lives of considerable numbers of pregnant women.

A limited ban? The pro-life movement does not in fact want a total ban on abortion, it wants a partial ban - a ban on direct abortions. The distinction between direct abortion and indirect abortion was developed by moral theologians to allow the morality of certain acts to be judged. As Rev Paul Tighe, a representative of the Irish Bishops' Conference, said:

Within the Catholic tradition we would always have distinguished between a direct abortion and an indirect abortion.

The medical evidence The committee sought to establish in an authoritative manner current medical practice in Irish maternity hospitals.

Professor John Bonnar, chairman of the Institute of Obstetricians and Gynaecologists, which represents between 90% and 95% of the obstetricians and gynaecologists in Ireland made a written submission to the committee on their behalf. The submission is dated 29 February 2000 and the operative parts are set out in full as follows:

The Institute of Obstetricians and Gynaecologists is the professional body representing the speciality of Obstetrics and Gynaecology in Ireland. The Executive Council of the Institute has examined the Green Paper on Abortion and the members have been consulted. We welcome the Green Paper, which provides a comprehensive, up to date and objective analysis of the issues arising in the care of the pregnant woman. Our expertise is in the medical area and our comments are confined to these aspects.

In current obstetrical practice rare complications can arise where therapeutic intervention is required at a stage in pregnancy when there will be little or no prospect for the survival of the baby, due to extreme immaturity. In these exceptional situations failure to intervene may result in the death of both mother and baby. We consider that there is a fundamental difference between abortion carried out with the intention of taking the life of the baby, for example for social reasons, and the unavoidable death of the baby resulting from essential treatment to protect the life of the mother.

We recognise our responsibility to provide aftercare for women who decide to leave the State for termination of pregnancy. We recommend that full support and follow up services be made available for all women whose pregnancies have been terminated, whatever the circumstances.

In his oral presentation, Professor Bonnar elaborated on paragraph 2 of the submission:

We have never regarded these interventions as abortion. It would never cross an obstetrician's mind that intervening in a case of pre-eclampsia, cancer of the cervix or ectopic pregnancy is abortion.

They are not abortion as far as the professional is concerned, these are medical treatments that are essential to protect the life of the mother. So when we interfere in the best interests of protecting a mother, and not allowing her to succumb, and we are faced with a foetus that dies, we don't regard that as something that we have, as it were, achieved by an abortion.

Abortion in the professional view to my mind is something entirely different. It is actually intervening, usually in a normal pregnancy, to get rid of the pregnancy, to get rid of the foetus. That is what we would consider the direct procurement of an abortion. In other words, it's an unwanted baby and, therefore, you intervene to end its life. That has never been a part of the practice of Irish obstetrics and I hope it never will be.

As far as the law is concerned, Professor Bonnar urged caution:

What I am describing here in this Green Paper submission is that we wouldn't want any intervention by the law that would compromise existing practice which is geared to the protection of both. In dealing with complex rare situations, where there is a direct physical threat to the life of the pregnant mother, we will intervene always.

Divergent opinions were expressed in regard to the characterisation of medical treatment essential to protect the life of the mother.

Professor James Clinch, former chairman of the Ethics Committee of the Medical Council, told the committee:

If there was a constitutional ban on the direct killing of the content of the uterus that would not change my practice.

Professor Eamon O'Dwyer, Professor Emeritus of Obstetrics and Gynaecology, National University of Ireland, Galway said in his written submission to the committee:

After forty years as a consultant obstetrician gynaecologist I can state:

there is no conflict of interest between the mother and her unborn child

there are no medical indications for abortion

there is no risk to the mother that can be avoided by abortion

prohibition of deliberate intentional abortion will not effect, in any way, the availability of all necessary care for the pregnant woman.

There is therefore a fundamental difference between abortion procured with intent to abort, for social reasons for example, '... deliberate, intentional destruction of unborn life' ... and destruction of unborn life incidental to requisite medical treatment which is lawful and ethical, however distressing.

Dr PJK Conway, a practising obstetrician and gynaecologist, addressed the question of where a termination of pregnancy was necessary:

I gave three examples that we have had of mothers whose pregnancies were less than 28 weeks. In the last 20 years, out of 24,000 deliveries, we transferred three mothers with severe toxaemia to Dublin because, whatever chance the babies had of surviving, they had none in Portlaoise because we don't have intensive care and ventilators and so on.

They were all sent to Dublin and they were all delivered because that is the treatment for the severe disease that they had. You deliver them and the baby takes its chances, but when it's that immature you don't expect the baby to survive. It would be a miracle if it did. I fully agree with that. We all do that and have done it ever since I have been a consultant and since I have been involved in obstetrics.

Dr Declan Keane, Master of the National Maternity Hospital, Holles Street, Dublin, said:

I think where you are actually directly terminating a pregnancy, whether that be by surgical or medical means to end a pregnancy in the interests of a woman, that, to me, is termination of pregnancy or abortion in any shape or form you wish to define it.

Dr Peter McKenna, Master of the Rotunda Hospital, Dublin, said:

Personally, I think that you are better to be up front and clean about this and say that the pregnancy is being aborted. That is the treatment. It's not that it is a side effect of the treatment, it's not that it's an unintentional side effect of the treatment. The treatment is you end the pregnancy. That is, I think, abortion.

Therefore, putting a total constitutional ban on abortion will inevitably maybe not this year, maybe not next year but the year after next ... inevitably somebody's life is going to be put at risk, if they don't leave the country either the doctor is going to have to break the law or the woman is going to die. I would be absolutely unequivocal about that.

Dr Seán Daly, Master of the Coombe Women's Hospital, Dublin, said:

I think that if we go down the road of trying to slice up the term 'abortion', then we are only going to complicate things for ourselves even more. At the end of the day, we do need to be able to practise and if this committee, and ultimately if the country or however it is constructed, decides that there is never an indication for abortion or for the premature ending of a pregnancy, then I certainly believe that is going to make if difficult to practise in the current environment in which we practise.

The committee heard evidence about certain rare life-threatening conditions. Dr Declan Keane, Master of the National Maternity Hospital, Holles Street, Dublin, referred to a condition which he described as haemolysis elevated liver enzymes and low platelets (HELLP):

HELLP syndrome, which is a variant of pre-eclamptic toxaemia, a condition where the mother has severe hypertension where the liver is involved ... We had a case in 1998, as I say, where the woman was severely ill with this condition. She was transferred to a neighbouring general hospital under the care of the liver specialist and the medical opinion that we got from the liver specialist was that this woman was going to die if her pregnancy did not end.

It was a very difficult decision to make. We obviously had to not only talk at length with the parents involved but with our legal team as well. But there was no other way in which this woman would have lived if the pregnancy had continued.

Continuing his evidence Dr Keane referred to another rare condition:

I note that the Green Paper and indeed the submissions have talked about other possible indications which would include severe cardiac disease in pregnancy and Eisenmenger's syndrome has been mentioned.

The Coombe Hospital had a woman who died from Eisenmenger's syndrome only last year and I suspect that the master of the Coombe may wish to make a comment on that later on. Certainly in my experience in Oxford we unfortunately again had to terminate two pregnancies in women with Eisenmenger's syndrome because the real risks to the woman, if the pregnancy had continued, were considerable.

Dr Peter McKenna, Master of the Rotunda Hospital, Dublin, described a number of cases from his experience:

I think I can say unequivocally that possibly once a year a woman would be seen in this country who, if her pregnancy is not terminated within a matter of probably hours or days, will die from a complication.

The complications that I would allude to would be the one which we have personal experience of recently and that is, fulminating high blood pressure associated with heart failure, associated with a molar pregnancy and a live, an ordinary ongoing pregnancy, a most unusual condition, one which I will probably never ever see again. But the only way in which that woman could be stopped from dying of heart failure that day was by terminating the pregnancy.

Dr McKenna, in describing the condition of patients with rare complications, had this to say:

These are women who are so sick you can't actually get them out of the country. I am not talking about people who have, say, Eisenmenger's heart disease that are well enough to leave the country. I am talking about people who are in a bed and who are so sick that you can't move them.

Dr McKenna concluded his evidence:

The procedures, which I have referred to as abortion, may be referred to by other people as treatment. Now as I said before, I think that if the treatment is to empty the uterus, I can't think of any more apt term to call that than an abortion.

It doesn't imply that you want to end the life of an unwanted baby; it is simply a description of what you are doing. And it may be quite as simple, the difference may be quite as simple as somebody being able to say to themselves well there is no abortion in Ireland. That's, you know, where we can all rest assured in our beds at night.

But I wouldn't take that point of view. I feel that if there is a problem, why not name it and address it and try to deal with it in a way that people can understand? I don't think that not calling it that really clarifies it. I mean one of the consistent threads that I do get in the mail is that I am 'muddying the water'. I'm only muddying the water for people who don't think clearly, I think.

Dr Sean Daly, Master of the Coombe Women's Hospital, Dublin, also addressed the issue of rare complications:

I think that the current practice ... as we practise it at the moment, we do in general deal with the complications that arise. If we have a very bad high blood pressure problem during pregnancy, the treatment for which would be to deliver the baby or essentially to deliver the placenta, then we do practise that.

Where it is going to get more difficult for us though is in cases of complex heart disease in the mother where, in essence, what we would be seeking to do is not to treat the complex heart disease but to end the pregnancy in order to reduce the risk to that woman. The Medical Council guidelines suggest that we cannot wilfully destroy a foetus or a baby and, while none of us would wish to do that, ultimately that may be the result of what we do.

I think the whole issue of intent is an important one in that intent can be a double-edged sword. I could claim to be trying to do some heroic therapeutic intervention to a baby and, inadvertently, cause a miscarriage. I never intended to do it, but in essence I shouldn't have been doing it in the first place.

I could get myself protected under the law by that. So it is a double-edged sword. Certainly none of us wants to practise outside the law, nor indeed would we - those who are practising - feel comfortable doing that. That's why the onus is on you, I suppose, to come up with a wording which will allow us to practise in order to protect as much as we can the life of the mother and the child. ... there is no problem in my mind that the life of the mother is paramount and that we must do what we can to ensure that the mother survives.

Later, Dr Daly returned to the issue of complications and said:

I think that ultimately, in the coming years, we are going to be faced with more pregnancies complicated by maternal disease rather than less. There are going to be more women who survive congenital heart problems, coming through getting pregnant, than there were twenty or thirty years ago. We are more likely to see complicated pregnancies as time goes on and I think that we need, within the law, to be able to treat that woman as best we can in order to ensure her survival. Ultimately, if she does not survive, the baby will not survive either.

It is all about risk at the end of the day. Currently, and people can argue about the numbers, but broadly speaking, maternal mortality in Ireland is about ten per 100,000 so one per 10,000. If you have somebody who has Eisenmenger's syndrome, for example, her risk of dying is 25% to 30%. So, you are now changing her risk from one in 10,000 to 2,500 in 10,000.

We need to decide whether or not we believe that that is a significant change. If you do, then you need to try and manage that pregnancy as best you can. Ultimately, if the mother dies, the baby is likely to die. If you look at the maternal mortalities that are occurring at the moment, many of them are related, well, certainly a number which have occurred in the Coombe Women's Hospital recently, have been related to congenital heart disease. That is not to say that they would have definitely been avoided had there been termination of pregnancy.

However, there is a substantial risk and I think that that is what we need to be open with our patients about. If a woman, fully informed, decides that she is happy to take that risk, then we will, of course, look after her as best we can. If, on the other hand, she decides that she is not willing to take that risk - and it is a very big risk - then, I think that there should be an option there for her to have a termination of pregnancy.

The other situation is the very difficult pre-eclampsia and those early pregnancy complications which can sometimes necessitate having to deliver. You are really trying to deliver the placenta but ultimately you obviously deliver the baby, or cancer of the cervix presenting early in pregnancy when clearly you have to do a hysterectomy.

That is an early termination of pregnancy, be it at twelve weeks, and that is what we should call it ... I can see where some people are differentiating that from other types of abortion but ultimately they are all early terminations of pregnancy.

The issue was also raised by the chairman when Dr Michael RN Darling appeared as a representative of the Church of Ireland:

Chairman: ... Dr Darling, you are a member of the Institute of Obstetricians and Gynaecologists, I take it, and you participated in their consultation procedure?

Dr Darling: I did.

Chairman: You expressed concerns about the principle of double effect. I take it from that you would be concerned that while it may be a workable moral principle or a principle connected with conscience, that it doesn't provide certainty for you as a medical practitioner at the coalface.

Dr Darling: That's right. It comes back to definition. To me whether you are removing a uterus because it's got a cancer in it and happens to have a baby as well, that's an abortion to me, regardless of how you classify it. The system works because it is accepted medical practice. Without going into the theological arguments I suppose I was trying to, in answer to a previous query, to say that in current practice in my definition, abortion does occur, not frequently, but it does occur for very strong medical reasons.

Chairman: And you referred to these three or four cases in recent years and I take it that, as was indicated to us by the masters, that these related to Eisenmenger's type syndrome?

Dr Darling: There was one Eisenmenger's, two, I think a thing called HELLP, which is a liver failure situation, and another condition, hydatidiform mole. They are there to be scrutinised.

Chairman: And I think you can speak for everyone in this respect, it's correct to say the Church of Ireland is anxious to see that all those kind of cases are covered as medical intervention and are recognised and accepted.

Dr Darling: Yes, exactly.

Before concluding this discussion it should be pointed out that Professor Eamon O'Dwyer made the point strongly that termination of a pregnancy early in a case of Eisenmenger's syndrome does not guarantee or ensure the life of the mother.

However he indicated that others might take a different view to his:

I wouldn't quarrel with the people who take the opposite view or different view, and say that you have to interrupt the pregnancy. That's their view and I respect this view, but there is another side and I think it is only fair to be objective.

Professor O'Dwyer wrote to the committee subsequent to the hearings confirming his objective clinical judgment that he did not favour termination in cases of Eisenmenger's Complex.

In assessing the medical evidence great weight must be attached to the opinions of the masters of the maternity hospitals who spoke to the committee. They and their staff assist at about forty percent of the births which take place in the state each year. Their evidence is of particular importance because of the greater concentration of skills, experience and technical facilities in their hospitals.

There is general agreement that it is of paramount importance to protect the life of the mother, and since all the members of the Institute of Obstetricians and Gynaecologists require that principle to operate fully, any strategy to deal with the X case must respect that principle.

The committee received suggestions for wordings for a pro-life amendment from many groups and individuals. However well intentioned these may be, the committee was not convinced that they accommodated existing medical practice as outlined to the committee. The following are some of the suggested wordings:

Youth Defence: 'No law should be enacted, nor shall any provision of the constitution be interpreted, to render induced abortion, or the procurement of induced abortion, lawful in the State'.

The Pro-Life Campaign has suggested two different wordings in recent times. The first is that to Article 40.3.3( should be added:

It shall be unlawful to terminate the life of the unborn unless such termination is the unsought side-effect of medical treatment necessary to save the life of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life.

The second is in its submission to the committee in 1999 where it states that the following sentence could be added to Article 40.3.3(:

No law should be enacted, and no provision of this Constitution shall be interpreted, to render induced abortion lawful in this State.

A group of barristers proposed the following: 'Nothing in the Constitution would render lawful the deliberate, intentional destruction of the unborn or its deliberate, intentional removal from its mother's womb before it is viable.'

Professor Eamon O'Dwyer suggests that after the words 'vindicate that right' in Article 40.3.3( the following phrase be inserted '... Nothing in this Constitution shall render lawful the deliberate, intentional, destruction of unborn human life'.

The Society for the Protection of Unborn Children: 'No article in this Constitution can be interpreted as allowing direct abortion'.

Family and Life: 'Where abortion is understood to signify the intentional killing of the unborn, no law can be enacted, nor shall any provision of this Constitution be interpreted so as to render abortion lawful.'

Roderick O'Hanlon, who in his submission supported the draft amendments of the Pro-Life Campaign and Youth Defence, recommended the addition of an opening sentence to whatever formula was adopted: 'The unborn child shall, from the moment of conception, have the same right to life as the child born alive'.

A proposal to prohibit abortion while protecting the life of the mother was made by Máire Kirrane:

Insert after Article 40.3.2(:

3( Subject to the provisions of sub-sections 4 and 5 of this section: it shall not be lawful to procure, or attempt to procure, or in any manner to aid or abet or assist any person, to attempt to procure, or to procure the miscarriage of a pregnant woman [An Induced Abortion] within the state or in any place subject to its jurisdiction.

4( For the purpose of this section an Induced Abortion is attempted or procured by any act or procedure carried out with the intent and for the sole purpose of procuring the miscarriage of a pregnant woman.

5( Nothing in the section, however, shall be invoked to prohibit, control or interfere with any act, made, done or carried out by, or on the instructions of a medical practitioner in the treatment of a pregnant woman patient in the ordinary course of medical practice, and where there is a real and substantial risk to her life, notwithstanding that such treatment would, or could, have as its consequence the termination of that patient's pregnancy.

This formulation, however, in resorting to the expression 'and where there is a real and substantial risk to her life', to ensure that the actions of medical practitioners must conform to a legal test, introduces the possibility of suicide as grounds for abortion.

The Medical Council The Medical Council is the body which regulates the medical profession under the Medical Practitioners Act 1978. The Medical Council's mission is to protect the interests of the public when dealing with members of the medical profession. The twenty-five members of the council are elected by the profession or appointed by academic bodies and the Minister for Health and Children every five years. One of their functions is to publish a set of professional standards or ethical guidelines for the profession. The principles underpinning the guidelines are:

the guidelines do not have statutory force; they represent advice on generally accepted standards of practice

the guidelines do not constitute a rulebook or code of practice. Rather, they identify key ethical and professional principles

the clinical independence of doctors practising in Ireland must not be undermined by these guidelines. Each doctor must examine the ethical principles relevant to individual cases and make a personal decision about their application

the guidelines may form the basis for judging the practice of a doctor who is the subject of a complaint

breaches of the Guide to Ethical Conduct may constitute professional misconduct.

The Medical Council has a Fitness to Practice Committee which investigates complaints against doctors. Inquiries by this committee are held with legal representation. Serious allegations are dealt with under the criminal standards of evidence and proof. A penalty imposed by the Medical Council must be confirmed by application to the High Court.

In section F of the guidelines, which deals with reproductive medicine, the provision relating to the child in utero is:

The deliberate and intentional destruction of the unborn child is professional misconduct. Should a child in utero suffer or lose its life as a side-effect of standard medical treatment of the mother, then this is not unethical. Refusal by a doctor to treat a woman with a serious illness because she is pregnant would be grounds for complaint and could be considered to be professional misconduct.

The Medical Council guidelines do not use the term abortion. Professor Gerard Bury, president of the Medical Council, in his evidence to the committee pointed out:

Abortion is not mentioned in this document [the guidelines]. Abortion is a lay term. If it's going to be used technically, in my understanding as a general practitioner, it relates to any termination of pregnancy, for natural or other reasons, prior to about fourteen weeks of the pregnancy. That's the only technical sense in which it's used. The broader use of abortion seems to be as a lay term meaning a whole host of different things to different people .... The definition, then, of that lay term is entirely equivocal and open to debate ....

Professor Bury was careful to stress the limitations of the guidelines:

The ethical guidelines form the basis for the professional principles that we ask colleagues to abide by. As we have tried to stress, this is not a code book. This isn't a set of equations in which you look up the answer to your current problem and simply follow what the text says. These are core principles which we require doctors to implement carefully and conscientiously in the context of the clinical situation facing them and their patient.

.... The code is not a prescriptive document. Whether in this area or in others where dilemmas in medical practice arise, it does not take a prescriptive view for good sound reasons. One, the scientific basis for medicine changes on a regular basis. We both add and delete to our core of acceptable practice. Secondly, we've emphasised the clinical independence of practitioners in this country.

It's one of those aspects of medicine which has stood the country and the population very well over many years. We do not want to impinge and cannot be seen to impinge on that aspect of clinical independence. It is still the responsibility, and will remain the responsibility, of individual practitioners to take the core principles which are enunciated in these guidelines, in whichever current edition is in publication or in force, and to apply them to the clinical situation in which they find themselves.

These guidelines have not been subject to legal adjudication. Professor Bury recognised their inherent ambiguity:

I think that the substance of that paragraph [The Child In Utero] deals with assurances to the doctor involved that a woman must be offered and made available to her whatever treatments are appropriate. Again, this comes back to direct and indirect effects, such as the arguments being teased out. There is no doubt that the council wishes to see women not denied appropriate care.

Again, I would have to say to you that I don't want to get into speculating over the extent to which a treatment may be defined as intended to treat the woman rather than to bring about another effect. The council will take a very careful view should such a case arise in listening to submissions about that. We recognise that certain types of treatment may bring about the death of the child. It depends on intent, it depends on purpose.

The threat of suicide

In the ruling in the X case the Supreme Court said that abortion was lawful if a threat of suicide posed a real and substantial risk to the life of the mother. Therapeutic interventions that result in the death of the unborn are justified by the courts on the basis that there is a real and substantial threat to the life of the mother.

The threat of suicide, which proceeds from psychiatric rather than physical conditions, could be justified on the same grounds, if in fact, it posed a real and substantial threat to the life of the mother. From the pro-life point of view suicide is a condition that might be readily feigned or liberally interpreted by a doctor to allow a stream of abortions. It represents for them, therefore, a perfect example of the slippery slope in action.

The committee sought to find out what was the incidence of suicide in pregnant mothers and in what ways a threat of suicide could be established as a real and substantial threat.

Dr Sean Daly, Master of the Coombe Women's Hospital, Dublin, told the committee:

I am not a psychiatrist so I would not claim to be an expert in the evaluation of a woman who was threatening suicide. I do believe that suicide is rare during pregnancy and I think there is very good medical literature to support that view. That is not to say that it couldn't be a genuine risk. It has not been an issue, to the best of my knowledge, in recent times and I do not know of any abortions that were carried out because of that indication in this country.

Dr Peter McKenna, Master of the Rotunda Hospital, Dublin, told the committee:

In medicine it is very dangerous to say things don't happen. I certainly was of that opinion but last year - the first time again - we had a woman - I had never seen it before - was brought into hospital, attempted suicide quite far on in the pregnancy, and it was a very serious suicide attempt, so it can happen.

When you are dealing with humans you simply can't say it never will happen. I think you are probably on fairly safe ground to say though that the incidence of suicide in pregnant women is less than in the non-pregnant female population of a comparable age. I think that probably is true but that's not the same as saying no pregnant woman will ever seriously commit suicide.

On the incidence of suicide rates in pregnancy Dr Anthony Clare, Medical Director, St Patrick's Hospital, Dublin, told the committee:

The literature on suicide and abortion, which I, with a colleague, Janet Tyrell, in 1994, reviewed for the Irish Journal of Psychological Medicine, is pretty miserable. It is a rather sparse literature compared to that on the psychological consequences of abortion.

Many of the studies are faulty in terms of their sample selection and the absence of any appropriate control groups and in overall design. Many women, for example, up to forty per cent in some highly quoted studies, supposedly refused abortions have actually gone off and had the abortions elsewhere depending on availability. Nonetheless, these caveats notwithstanding, suicide rates in pregnancies are low, certainly lower than in non-pregnant women.

These findings are in the main derived from studies in countries in which legal abortion is available and one of the studies quoted in your briefing document, I think Louis Appleby's retrospective studies spanning ten years, found that the risk of suicide in pregnancy in the UK was one sixth of that expected for non-pregnant women.

He actually put figures on it. A total of fourteen pregnant women committed suicide during 1973 to 1984 compared with an estimated and statistically expected 281.5. That gives an overall observed to expected ratio of 0.05% or, to put that into simple figures, pregnant women had one twentieth of the expected rate of suicide.

That has led to the statement that in fact pregnancy protects women from suicide, though no one would advise that as a treatment. The mortality ratio for teenage pregnant women was 0.28 so that, although at low risk compared with teenage non-pregnant women, this group did carry a risk of suicide five times greater than that for pregnant women as a whole. What we are dealing with are very, very small numbers and a very small risk.

On the question of the number of suicides that followed a refusal of abortion, he said:

It's very hard to find this kind of work properly studied because most jurisdictions that carry out decent medical research happen to be the same jurisdictions that have legal abortion. One study in Sweden between 1938 and 1958 found three cases of suicide registered in people who had been refused abortion, none over the next twenty years.

There are a number of other studies but I have to say that one's got to be very careful about how you interpret them, so that suicide as a consequence of termination being refused is a low risk but it's not an absolutely non-existent risk. It can and has happened.

Dr John D Sheehan, consultant psychiatrist at the Rotunda Hospital, Dublin, confirmed this:

In the UK, the report on confidential inquiries into maternal deaths in the United Kingdom - the latest one is the 1994 to 1996 publication - looking at that three-year period, 1994 to 1996, in the UK, with a population of roughly sixty million people, the estimated number of pregnancies among that group was three million in the actual three years.

The total number of deaths due to suicide in women who were pregnant in the three-year period was five. So the actual number of women who commit suicide who are pregnant is extremely small. Most authors will describe the risk and describe suicide in pregnancy as a rare event.

... The actual authors of the confidential inquiry quoted Louis Appleby, who is a professor of psychiatry in Manchester. Appleby has a very widely quoted paper on suicide rates in pregnancy and after delivery. The statement that's attributed to Appleby is that, in a sense, pregnancy is a protective factor against suicide.

Professor Hannah McGee, representing Psychologists for Freedom of Information, said:

Our evidence would concur with the general thrust of the findings that have been presented to you that completed suicide during pregnancy is significantly reduced over and above levels in non-pregnant women of similar ages. However, the protective factor may not be as powerful as the one in twenty you've heard from the Appleby study in the early 1990s in the UK. This was based on death certification.

A more recent and detailed analysis in the US in 1999 by Marsoc ... where they were able to have completed autopsy or forensic examination in all cases shows that the risk of suicide in pregnant versus non-pregnant women reduces by about a third. So pregnant women have about a one in three chance of non-pregnant women of similar ages of committing suicide. Importantly, however, although the percentages in all of these studies are low, they represent real individuals.

Predictability In seeking to establish how a threat of suicide might be established as a real and substantial risk, the committee sought to establish how psychiatrists can predict suicide in such cases.

Dr Anthony Clare said:

Well, you'll be told, perhaps to your alarm, that psychiatrists are not very good at predicting suicide. I say to your alarm because, of course, under mental treatment legislation psychiatrists are permitted to detain people against their will on exactly that prediction.

I think Michael Kelleher predicted that for every hundred cases of suicide predicted the prophecy was wrong ninety-seven times. Now in the case of the Mental Treatment Act we accept that rather poor score rate because to save three from killing themselves, which is after all an irreversible decision, we're prepared to be wrong quite a few times, to err on the side of caution.

Dr John D Sheehan concurred:

There is no test or in a sense there is no fail safe way of saying the person will or will not commit suicide. It actually doesn't exist. What one usually does is that if you take a person who presents, whether pregnant or not pregnant, if we just take the concept of how does the doctor manage someone who's suicidal, the usual way is clearly you have to assess that person very carefully and you have to assess the multitude of factors that can be involved in suicide.

Then if a person has what we call suicidal intent which often - in other words, they may have a plan made, they may have stored tablets, they may have arranged times that they'll actually commit suicide - well the usual intervention at that point then would be mobilising supports for the person, perhaps admission to hospital, involving the family, if the person has had a major depression you treat the depression, if a person is drinking excessively you would obviously help them to stop drinking excessively.

In other words, the interventions are directed at helping and supporting the individual and treating whatever condition is there.

... In terms of assessment, the majority of people who threaten suicide have transient suicidal thoughts and, for example, twenty-four or forty-eight hours later when you talk to them, they will say they may have taken an overdose of tablets, but will say to you 'That was a very stupid thing I did and I am very sorry I did it'.

The majority of people who attempt suicide or threaten suicide are actually not mentally ill. The group that actually make very serious attempts at suicide - in other words, if you look at the other end of the spectrum - have what we call suicidal depression.

If you look at the tragedy say of a woman who commits suicide after having a baby, by and large you would expect that woman to have what we call a psychosis, which would be her believing that she is an inherently bad or evil person and that perhaps her little baby is inherently bad and the only way to save herself and the baby from the world is to end their lives.

Dr Geraldine Moane, representing Psychologists for Freedom of Information, said that there are well developed instruments and guidelines for suicide assessment and intervention which were recently published in the Harvard Medical School Guides to Suicide Assessment and Intervention. She said:

In the instance of abortion, we propose that it would be possible to make a judgment about the risk to life posed by the threat of suicide and to make a decision based on that judgment.

Finally, Dr Sheehan made the point that abortion itself tended to increase the chances of a woman's committing suicide. Referring to a Finnish study published in the British Medical Journal, he said:

They looked at the general population rate and compared that with women who delivered babies, women who miscarried and women who had terminations. The interesting finding there was that after miscarriage or termination, the suicide rate was actually increased relative to the general rate and again relative to the rate after delivery.

The cases of rape and incest

The Green Paper points out:

Statistics on rape collected by the Gardaí and the Dublin Rape Crisis Centre are available. However it is difficult to gauge the extent to which cases of rape and incest may be under-reported and the actual number may be rather higher than the official statistics indicate. Likewise no information is available on the extent to which such cases result in pregnancy or the outcome of the pregnancy.

In 1998, 292 cases of rape were reported or known to the Gardaí. In the same year eighteen cases of incest were reported.

Rape Crisis Centres provide counselling and therapy for victims of rape, sexual assault and child sexual abuse. Statistics produced by the Dublin Rape Crisis Centre for the period July 1997 to June 1998 show that, based on its client group, 36% of adult rape and 17% of child sexual abuse is reported to the Gardaí. The Centre's statistics show that 118 clients were identified as being at risk of pregnancy. Of these 21 (18%) became pregnant. Eight women continued with the pregnancy and kept the baby, one woman opted for adoption, five women terminated their pregnancies, two women miscarried and the outcome is unknown in the case of five women.

In its submission, the Pro-Life Campaign points out:

It is difficult to estimate the incidence of pregnancy due to sexual assault: studies have defined sexual assault differently, and assaulted women may be sexually active and hence the pregnancy may not have resulted from the assault. Different studies give estimates varying from 0.6% to 5%. The relative rarity of rape-induced pregnancy coupled with the fact that women traumatised by rape need to be treated with great sensitivity and hence are not often suitable subjects for research explains why there are few studies in the management of pregnancy resulting from sexual assault.

Fred Lowe, a psychologist, in his written submission put most emphatically the woman's right to choose in rape as well as other cases:

There is no simple solution to the abortion problem, because it is a clash between two rights, the right of the mother not to have something invade her body against her will, and the right of a foetus to be protected. When the foetus has got there by force, as in cases of rape, or by deception, as when a man cuts the top off his condom, or claims he has had a vasectomy, the woman should have the right to refuse to carry the foetus.

To force the woman to relinquish control over her body is to deprive her of a basic human right, the right to own and control what happens to her body. The crime of rape exists because someone has taken away that right and the law sees it as almost as serious as murder. For the country then to pass a constitutional law to force the rape victim to endure the effects of rape, by making her give birth to the rapist's child, is to make her the victim of a kind of secondary rape, which should perhaps be called 'state rape'. It is an odd constitution indeed that upholds the right of a rapist to force a woman to have his child. It is time it was changed.

Dr Anthony Clare said:

I feel it repugnant that we would live in a society where someone who is raped or who has been forced ... who would be made pregnant as a result of consistent, persistent or even one-off sexual abuse in a family or by a stranger is forced then to undergo ... to carry that pregnancy against her will. Yes, I find that repugnant.

Dr Peter McKenna said:

I would have to say that if it happened to a member of my family, whatever their wishes were, they would be effected. Whether they wished to carry the pregnancy or whether they wished to have a termination, that would be done.

Professor Walter Prendiville, consultant gynaecologist, Coombe Women's Hospital, Dublin, said:

... the committee has already heard from a previous expert witness declaring the profound distress of a woman who has been raped. I believe that most members of the medical profession and the public are supportive of early termination of pregnancy in this circumstance.

Professor Hannah McGee, representing Psychologists for Freedom of Information, said:

We would believe that, in terms of option seven, that we would support, where there is a serious risk to the mental health of a woman pregnant as a result of rape or incest, that there be access to abortion in that context.

Dr John D Sheehan said:

The vast majority of people whom I would see who've been victims of incest have not been pregnant, and I would see the actual major psychological consequences of that trauma. That can be a very long-lasting and profound effect. But in terms of determining from a literature point of view and a research point of view is there, in a sense, evidence to say that abortion or termination would be the correct thing to do in the case of rape, there isn't such literature there.

Dr TK Whitaker, Chairman of the Constitution Review Group, 1995-1996, told the committee:

Incest and rape are particularly difficult issues, arousing much sympathy because of the absence of the mother's consent, indeed, the invasion of her body and her probable abhorrence about being pregnant at all, especially with an unwanted child. However, having brooded over this, my view remains that the innocent life is entitled to protection but, on the other hand, that the State should be generous in the help offered to the mother during pregnancy and in providing for the care and upbringing of the child afterwards, whether by the mother, foster parents or adoptive parents.

Professor William Binchy, Legal Adviser to the Pro-Life Campaign, said:

Humanitarianism and a humanitarian society, in my judgment, gain their strength from confronting the hard cases and doing the right thing rather than the wrong thing in those hard cases. If one excludes the option of the easy but ultimately unjust solution in those circumstances, an obligation falls on the society to make a greater effort.

Richard Greene, representing Muintir na hÉireann Teoranta, said:

... in the horrific matter of rape and incest, the utmost genuine compassion and care, medical attention, support and love must be given to a woman or girl in this situation, but we must remember that an abortion of her unborn baby will never undo the rape. All the so-called hard cases amount to a very, very small percentage of those 5,000 women and girls who, according to reports, go annually to the UK to obtain an abortion.

Dr PHC Trimble, representing the Church of Ireland, said:

Pregnancy after incest and pregnancy after rape are understandably difficult and emotive situations, perhaps the most difficult in the list of exceptions, and some would argue that abortion in these cases is the lesser of two evils and the compassionate solution. However, going back to the principle outlined ... it denies the personhood and right to life of the foetus and it can itself re-traumatise the mother.

Ann Power, speaking on behalf of the Irish Bishops' Conference, said:

The first thing that must be said is that when a woman has been subjected to such horrendous violence and such a horrendous crime it is imperative upon every member of society to support her in whatever way they can ... However, one must remember that if conception has taken place, we are now dealing with two human beings to whom the same right, to whom the same duty must be discharged.

As a non-ovulant, if contraception is actually administered so as to prevent ovulation, I think, in those circumstances, clearly we are not dealing with two lives, we are dealing with one woman's life and the possibility of preventing ovulation. Where in circumstances it is established, and it can be established, I believe, that ovulation has occurred, then, I think, in those circumstances, reason requires that we deal with both human beings in exactly the same way.

Rosemarie Rowley, the writer, emphasised the limitation of abortion as a remedy in these cases:

... because the feminist ideology favours abortion, it tends to disregard the evidence of such things as post-abortion distress or trauma. However, we now have an opportunity to look at the evidence. The evidence for post-abortion trauma is mounting. All estimates agree, from the tables of psychology books to the surveys of life organisations, that serious emotional distress is at least 10% and it is believed to be 25%.

The case of foetal abnormality

There are many causes of congenital malformations. Approximately half are due to genetic abnormalities. As the Green Paper points out, in about 40% the cause is unknown and the remaining cases are due to chromosomal abnormalities, teratogens (anything capable of disrupting the foetal growth and producing malformation) and other factors.

Major malformations are structural abnormalities that have serious medical, surgical or cosmetic consequences. Minor abnormalities which have no serious consequence however are common and affect approximately 4% of children. Abnormalities may be inherited (a chromosome defect or a gene flaw) or acquired, which means that the embryo was initially normal but was damaged during its development by an injurious agent, e.g. drugs, infection, irradiation or maternal metabolic disorder.

Examples of genetic abnormalities include:

anchondroplasia - a condition causing dwarfism and hydrocephalus cystic fibrosis and haemophilia.

Other malformations include neural tube defects. These are the more common birth defects. In Western Europe the incidence is approximately 5 per 1,000 births. There is a spectrum of neural tube defects ranging from minor defects to anencephaly. In anencephaly the brain fails to develop and the death rate is 100% with most infants dying during delivery.

Chromosomal defects account for a small percentage of abnormalities (approximately 1%). Down's syndrome is the most common chromosomal abnormality and is responsible for 30% of all cases of severe mental handicap. Its frequency is approximately 1 in every 700 births.

A number of submissions propose that abortion should be permissible on grounds of foetal impairment in cases of extreme abnormality or where the condition of the foetus is incompatible with life. Most submissions express strong opposition to any such provision.

Many countries permit abortion on grounds of foetal impairment. Foetal impairment is sometimes referred to specifically, for example in England and Wales, 'where 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 other countries there is specific provision in this regard. However, in some cases an abortion may be obtained on the grounds of adverse effect on the mother's mental health.

In giving evidence to the committee Dr Declan Keane, Master of the National Maternity Hospital, Dublin, outlined the scale of neural tube defects in Ireland:

Ireland has the second highest risk of neural tube defects in the world, in which although the risks are coming down, we would still have a significantly high figure in this country, probably about four to five women per thousand. That would be either spina bifida or anencephaly.

Spina bifida is more difficult because many babies and indeed most babies with spina bifida will live, very often with a compromised lifestyle. Anencephaly is that condition where the brain is not developed and, of course, if the brain has not developed then it is inconsistent with extra-uterine life.

In response to a question from the committee regarding the termination of a non-viable foetus Dr Keane replied, 'I think we would only be happy in this country in terminating a pregnancy for a foetal abnormality if, as you say, we were 100% sure'.

In his evidence to the committee Dr Peter McKenna, Master of the Rotunda Hospital, Dublin, stated that approximately fifty women out of the total number who travelled to the UK for terminations did so for foetal abnormalities. He said, 'I am unaware of any hospital or institution that has ever terminated a pregnancy in this state for foetal abnormality'. In response to a question as to whether the law should be changed he stated:

There are two alternatives, one is that the law be changed to allow to terminate pregnancies in the face of such serious handicap. That is an enormous and seismic shift in this country if such a law were to be allowed and I would have to say that I am far from sure that is the correct thing to advise ... what I would suggest that we do arrive at, is that in those cases where this is necessary that we have all the mechanisms in place, that these people can be referred to the correct places, that the cost is not an issue, that safety is an issue and that the future wellbeing and their future reproductive health can be discussed openly, and that they be given the best advice. That would be my more immediate concern rather than advising that we would so enormously change to termination on the grounds of foetal abnormality.

Dr Sean Daly, Master of the Coombe Women's Hospital, Dublin, asked whether he thought there was an argument for providing a facility, either in this country or by way of referral to a special unit overseas, for the termination of an anencephalic foetus, replied:

Where there's an anencephalic - or indeed where there are other conditions where it is clear that the foetus is or baby is not going to survive - then I think it is difficult to ask a woman to continue that pregnancy if she doesn't want to. Having said that, many women in Ireland and many women that I have dealt with do want to continue the pregnancy and wish to deliver the baby alive, to have whatever time to have with it. But I would support the idea that there should be a provision for women who don't want to do that.

When asked if he would like to see a situation where the law would allow him to deal with pregnancies which had no viability, he said:

Yes, I think I personally would. I think if part of your practice is the diagnosis of congenital abnormalities, it is difficult to bring a couple through that, and then walk away from it to a certain extent. It does place a considerable burden on them, if they choose to terminate the pregnancy, to try and find information to ensure that they get continued good care. The difficulty with bringing in legislation for congenital abnormalities is where you draw the line. Again, while there are certain conditions that are clearly incompatible with life, there is a huge grey area.

Then you get quality of life issues, and it becomes very complex. Personally, I believe it would be very difficult to bring forward a list that includes many more cases than anencephaly. It just gets so complicated. As we decode the human gene and prenatal diagnosis comes to the next level, we are going to be able to diagnose so many things. We can diagnose cystic fibrosis in pregnant women now. I would be very uncomfortable about using cystic fibrosis and adding that to the list. There are very few conditions in which the foetus or baby is not going to survive absolutely.

In evidence to the committee Dr Berry Kiely, a representative of the Pro-Life Campaign, referred to the preventative measures for neural tube defects:

I would like to make a small point in relation to anencephaly and spina bifida. It is important that everybody is aware that most of these can be prevented. Our whole approach to that condition should be preventing it. It is a simple matter of giving a woman before she becomes pregnant if possible or as soon as she becomes pregnant a small dose of folic acid. That is what is required to prevent neural tube defects.

That is a public health problem which needs to be addressed much more actively. I appreciate that this is not part of the committee's brief. Since this has come up so many times, I think it is important to emphasise that we should be preventing neural tube defects, not being concerned whether we should terminate them or not.

On the same issue of neural tube defects Dr TK Whitaker told the committee:

On the question of what are called 'lethal deformities' one of them is anencephaly, which is a condition where there is no hope whatever of the infant, even if it's born, remaining alive and I find myself in a quandary about that situation where I might be induced to say yes, once that it is clear, one could allow a termination of the pregnancy in that case and I remain somewhat doubtful about that.

There are other cases such as cystic fibrosis and so on where it may be fatal in the long term but there is a reasonable prospect of a span of life in which the brain would still be active and alert and I couldn't bring myself to agree to a termination of pregnancy in such cases.

A number of witnesses differed in their approach as to the best method of dealing with lethal deformities in pregnancy. Dr PJK Conway, a consultant obstetrician gynaecologist, expressed the following view:

Most of these abnormal babies that won't survive after birth are picked up after sixteen weeks at a time when it is quite dangerous to induce abortion physically. There is a paper from America, reported in the New England Journal in 1996, which states categorically that the maternal mortality is higher in those who are induced to get rid - I am using the term of people who do not want the baby - to get rid of the baby which is abnormal than if they are allowed to go and have a natural pregnancy and a natural delivery ... It would be far healthier for her to carry on her pregnancy both physically and mentally than to go to England and have an abortion and I would give her that strong advice.

Another common congenital condition is that of cystic fibrosis, a disease of childhood where the lungs, liver, intestine and other organs are affected. It is a very debilitating condition requiring very intensive treatment. One person in twenty is affected by the cystic fibrosis gene. Ireland has approximately the same genetic incidence of the disease as Denmark and Scandinavia. In Scandinavia antenatal diagnosis and termination of pregnancy is regarded as normal if a baby is known to be affected by cystic fibrosis.

Dr Brian Denham, a leading paediatrician and an expert on the condition of cystic fibrosis, believes that the families of cystic fibrosis sufferers should receive sustained support and counselling to deal with such a debilitating condition.

According to Dr Denham there is no termination of pregnancy available in Ireland for families of cystic fibrosis sufferers. In evidence to the committee he outlined the current position:

Any that need a termination travel overseas but there is an antenatal diagnostic facility that is provided quite widely now in Dublin, Galway and Cork to detect whether or not a child is affected by what is ultimately a fatal disease, although it takes a very, very long time and requires an immense family effort. I cannot emphasise enough to the committee the burden of care that families of children with very severe chronic illness accept.

The families are wonderful, the patients are wonderful but the treatment takes up so much of the family time and so much effort and goes on for so long that these families have no time for anything else. Our function as doctors is to support them as very best we can.

For some families the idea of having another child is intolerable because they know what it will do to them and to their existing child. Some families accept it without too much anxiety. Either way, our duty as doctors is to support them and help them look after their children to the best of their ability.

A special problem In his evidence to the committee Dr Declan Keane, Master of the National Maternity Hospital, Holles Street, Dublin, pointed out:

Every woman [certainly in all three Dublin maternity hospitals] will have a routine scan on her pregnancy between 18 to 20 weeks and we are diagnosing foetal abnormalities, many of which are inconsistent with life outside the womb. Some of these women will take the option of travelling abroad. Many in our profession would consider that regrettable because they often travel to places where the pregnancy is terminated, where no post-mortem or autopsy is done on the baby and, therefore, the ability to counsel that woman on subsequent pregnancies is reduced.

The committee believes there is a need for the Department of Health and Children to address the questions raised by Dr Declan Keane in regard to post-mortem reports.

The physical and psychological effects of abortion

The committee received submissions and heard evidence in relation to physical and psychological effects resulting from abortion. While these could indicate the nature of the effects which resulted from abortion, they could not quantify it owing to the lack of research and statistics.

Professor Anthony Clare adverted to the lack of research:

Much is made often of the psychological consequences of abortion. We looked at that, its effects on mental health. Most studies do not find an increased morbidity following abortion but, again, there are difficulties undertaking this research and, for example, the present predicament we face is that we've no idea what kind of psychological morbidity follows in many Irish women who go for abortion because they drop out of sight once they've had their terminations. It's not something that they are necessarily going to discuss in great detail with their doctors.

Much of the evidence is anecdotal. Many psychiatrists, such as myself, will have seen women who have got guilt and regret, which is particularly activated often when they become pregnant again, perhaps in a stable relationship or whatever, and they do recall their termination and abortion, but it's anecdotal. There are after all 5,000 a year and there are many, many other women, presumably, out there who have made that decision in the most difficult circumstances and lived with it.

The medical evidence suggested that Irish women who have abortions in England and Wales were more likely to have a termination at a later gestational stage than their English or Welsh counterparts and that they face increased physical and mental risks. A major concern, raised by the medical experts, of terminations of pregnancies either for foetal abnormalities or social and economic reasons, in the UK, was the lack of post-natal counselling and medical care. Dr Declan Keane stated:

The unfortunate scenario at the moment is that women with abnormalities go to units in the United Kingdom ... most of which do not perform an autopsy on the baby so the pathology back-up for subsequent counselling, indeed the psychological support of that woman, is also lacking in these institutions.

Addressing the question of counselling and aftercare, Dr Sean Daly said:

I think all women should in an ideal world have some medical or nursing midwifery interaction before they would opt for a termination of pregnancy, that we should be able to provide that and that resources should be made available to provide that. That is important for a number of reasons. Some of these women will have medical conditions which would mean that there are perhaps certain institutions that they might opt to go to in the UK for a termination of pregnancy that would not be ideal for them. We can't give good advice about the possible risks.

The people who come back with problems afterwards are, in general, I think, slow to access medical care. I think that if there were sufficient resources we should be trying to minimise the number of crisis pregnancies as we have discussed and to provide care for women who seek to terminate pregnancies in total.

There was a consensus that measures should be adopted to reduce the necessity for terminations. Professor Patricia Casey, a psychiatrist in the Mater Hospital and an organiser of the '5,000 Too Many ...' conference, stressed this:

I treat women who have had abortions and who suffer the adverse psychological consequences. I, therefore, as a health issue, believe it's imperative that we do what we can to reduce the necessity for abortion and the consequences that affect some women.