Draft Irish Abortion Law: Protection of Conscience
Testimony before the Joint Committee on Health and Children
Houses of the Oireachtas (Tithe an Oireachtais)
In response to criticism following the death of
Savita Halappanavar the Irish government
has published an early draft of the proposed abortion law, the
Protection of Life During Pregnancy Bill 2013. It is
technically called a draft "heads of bill." Each "head"
corresponds to what is likely to become a section of the final bill, but
the wording and content of each head have not been settled.
three days in May, 2013, a committee composed of Oireachtas deputies and senators heard evidence
from a number of expert witnesses concerning the proposal. What
follows are extracts of their testimony broadly relevant to the
protection of conscience provision in the draft. Links to the
pages from which the extracts were taken are found below each entry.
Links to full transcripts of the hearings are provided in the column to
Based on the testimony of the witnesses, the committee will forward a
report to the Irish Minister of Health, who will then finalize the
actual wording of a proposed bill.
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21 May, 2013
Redacted Witness List
Dr. Simon Mills
Lecturer in Medical Ethics at the Royal College of
Ireland from 2004 until 2011 [Written
Ms. Caroline Simons
Solicitor, Legal advisor to pro-life campaign
Mr. Tony O'Connor
Dr. Simon Mills: . . . I refer to head 12 which deals with conscientious objection. I dealt with
a number of matters in my written submissions. One issue that arises is how
extensive is the right of conscientious objection, in particular to what
extent, for example, conscientious objection arises where an opinion is
sought; to what extent there is an obligation on an individual to notify
either the existence of a conscientious objection or of previously publicly
expressed views of which a patient may not be aware. It may be there is no
such requirement but there is a necessity at least to consider the balancing
of rights involved in freedom of conscience on the one hand and access to a
constitutionally available right on the other.
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Ms. Caroline Simons: Members will see that in my written submission I have dealt with the
requirements of the European Court of Human Rights decision in the case of
A, B and C v. Ireland and the requirements of the X case, and then I
have looked at the law regarding experimental treatments. Finally, because
it is so important, I have looked extensively at the law on conscientious
objection internationally. Having said that, the law on conscientious
objection should have no relevance whatever where we are talking about
doctors wanting to practice good medicine and wanting to avoid something
which has not been proven to be in any way useful to the management of a
patient in circumstances where suicide is an issue. I shall leave it at that
and welcome questions the committee raises.
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Deputy Billy Kelleher: . . . Dr. Mills also mentioned a conflict of interest in the panel. Is that a
conflict in the context of conscientious objection or is it a conflict for
some other reason? He referred to being obliged to declare a conflict of
interest. I seek clarity on the matter.
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Mr. Tony O'Connor: Senator van Turnhout mentioned the obligation of a doctor to explain a
conscientious objection. This legislation does not provide for that, but it
is my understanding that the evidence already before the committee is that
in its code of conduct the Medical Council has provided that it should be.
The new code is to be introduced with the new Medical Council and that point
should certainly be made to the Medical Council.
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Ms. Caroline Simons: . . .
Senator van Turnhout's question concerned who could exercise the right to
conscientious objection, whether the woman could, and whether she would be
entitled to know if a doctor has a conscientious objection to the treatment
she is requesting. I agree that she is entitled to that information.
However, I am a little wary of the suggestion that has arisen in the
discussions over the last few days that there might be some kind of a list
made of conscientious objectors. I feel that is a little sinister. I do not
like the sound of that.
I do feel that the list of people to whom conscientious objection is
afforded under the Bill is very limited. It is just given to midwives and
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Ms. Caroline Simons: We must appreciate that under Article 9 of the
European Convention on Human Rights, conscientious objection is not
something that is limited in the sense that freedom to manifest religion is.
I found the explanatory notes a little confusing in that regard and I will
tell members the reason. Under Article 9.1 of the European Convention on
Human Rights, the freedoms are expressed in an absolute way. These are the
freedom of conscience, thought and religion, and when one then considers
Article 9.2, the freedom to manifest one's beliefs and one's religion is
limited. However, there is no express limitation in respect of conscience.
Conscience is something that is, if one likes, bigger than any religious
objection one might have. One need not have any religion in order to have a
conscientious objection. A religious objection is something that comes from
the tenets of a particular faith of which one is a follower, whereas
conscience is a different thing altogether. Consequently, it is something
that is very important and it is important that it be protected in the
highest and most noble way for people who have a difficulty, particularly in
the area of abortion, which we have found throughout the world in any legal
text one might look at in this regard.
I suggest members extend the application of the right to conscientious
objection not just to doctors but to trainee doctors, trainee nurses,
pharmacists and anyone else who could be involved with the assisting or
facilitating the process by which an abortion is carried out. I refer
members to a decision that was made in recent weeks in the Doogan case. It
is a decision of the Scottish Court of Session in which two midwives were
relieved of any obligation to supervise nurses who were participating in
abortion on the basis of their own conscientious objection. This is a good
example for us to follow and I will leave it at that for the present.
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Mr. Tony O'Connor: Deputy Mitchell O'Connor asked about conscience. I reiterate my earlier
remarks, the guide of the Medical Council requires doctors to disclose a
conscientious objection to the patient. Senator van Turnhout raised this
issue as well, so perhaps that message can be sent out. It should be
addressed but it am not sure it is appropriate for primary legislation.
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Dr. Simon Mills: I will briefly address the question put by Deputy Mary Mitchell O'Connor
because she is my local Deputy and I want to keep her on side. There is a
requirement for a balancing act. On the one hand, one has the right of the
doctor to his or her conscientious objection while, on the other, one has
the right of the woman to exercise her right to obtain a termination in
These rights must be balanced in every circumstance.
This goes back to a question asked by Senator van Turnhout on whether there
would be a requirement to disclose at the outset of a doctor-patient
relationship. While I do not believe that would be the case, the disclosure
obligation arises when a difference arises between what the patient wants
and what the doctor is prepared to do. There is a tension here but it is one
that has been resolved in many other jurisdictions.
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Deputy Catherine Byrne: This Bill is about conscience and the judgment
we will make having listened to the evidence over the course of the
committee's hearings. The witnesses are all experts in medical law. I ask
them to answer with a "Yes" or "No" to be helpful to me and others outside
the proceedings. Will the passing of the Bill result in widespread
termination of pregnancies? Will the Bill legalise the killing of babies?
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Deputy Terence Flanagan: My next question is a general one for all of the panellists and I ask
that they give me a "Yes" or "No" answer. The question relates to
conscientious objection and head 12. Earlier today the patient was
mentioned, as were the doctors and midwives, in the context of conscientious
objection. Does an institution have a right to conscientious objection, as
endorsed by the Council of Europe?
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Deputy Bernard J. Durkan: To what extent must the legislators and the courts have regard to the
decision of the Supreme Court in the X case regarding the degree to which
conscientious objection can prevent particular procedures or treatments from
being made available to women or unborn babies?
14, accsessed 2013-05-27]
Ms. Caroline Simons: Because it has not been asked before I would first
like to respond to Deputy Flanagan's question on the right to conscientious
objection of institutions. I refer to page 18 of my written submission
wherein I point to a number of cases of the European Court of Human Rights
which deal with that very issue. In one case, Rommelfanger v. The
Federal Republic of Germany , the court held that a hospital was entitled to
dismiss a plaintiff because he took ethical positions which were contrary to
those of his employer. This would confirm that a hospital is capable in law
of holding ethical positions. That case was then confirmed in Lambardi
Vallauri v. Italy in which it was held that a Catholic institution
can limit the rights and freedoms of other people in order to protect its
ethos. I have also appended at the back of my written submission an
extensive survey of the laws in the various states of the United States of
America in relation to conscientious objection. Members will note that many
of them do afford a right of conscientious objection to institutions. There
is no difficulty at all in providing for that.
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Dr. Simon Mills: As with Mr. O'Connor, Mr.
Brady and Ms Simons, there is a limit to the number of questions that I can
answer in the time available to me. I will start with Deputy Terence
Flanagan's questions. He raised an interesting issue pertaining to
conscientious objection by institutions. There is a tension in the Bill
between the conscientious objection granted to individuals and the assertion
that institutions are not entitled to conscientious objections. If no
institution is entitled to a conscientious objection, what happens if every
individual in that institution exercises a conscientious objection? It could
possibly lead to the bizarre scenario of an add-on question at job
interviews along the lines of how the applicant feels about the Protection
of Life During Pregnancy Bill 2013. That is not necessarily an absolute
tension and there may be flexibility in terms of the provision of medical
services but it strikes me as a tension none the less. The Deputy and I did
not agree about much during on the last occasion we discussed these issues
but I think we can agree that head 12 creates a certain tension.
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Redacted Witness List
Professor William Binchy
Regius Professor of Laws, Trinity College, Dublin,
Professor William Binchy: Let us look at the way the debate and the discussion has developed. We
have the privilege here of having with us a former Supreme Court judge, who
was in the courts for many years and on the Supreme Court for a number of
those years. It is worth examining what she said on the question of late
abortions because the Government has said nothing other than that there is
no problem. Let us examine what Mrs. Justice McGuinness has said in order to
enlighten us in terms of the analysis here. Mrs. Justice McGuinness stated
that she was confident that doctors would do the right thing. As I say,
obstetricians would wish to do the right thing but if legislation constrains
them to carry out an abortion in circumstances where they do not wish to do
so, their only strategy in those circumstances is conscientious objection.
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Redacted Witness List
Dr. Ciaran Craven
Dr. Ruth Fletcher
Senior lecturer, Keele University School of Law [Written
Dr. Ciaran Craven: A good faith
defence in those circumstances would, under the terms of the scheme of this
Bill, provide an absolute defence irrespective of how that behaviour might
be considered to be referenced according to a template of evidence based
practice. A good faith opinion which is accepted without any reference or is
unsupported by any reference to evidence based practice is regressive and
potentially dangerous. It represents an old fashioned approach, one which no
longer finds favour with the courts or the regulatory body.
In that context, the question of the number of individuals who are
required to review any particular decision is of academic relevance and
significance because it presents the same difficulty or weakness in so far
as it is simply based on bona fides. Some of the particularly bad scandals
we have had over the past 20 to 25 years or so would indicate there must be
a limit to the deference that any society must give to what amounts to
clinical hegemony. If one wishes to write a recipe for abhorrent behaviour
or clinical hegemony then the way to proceed is to carry on along this line
and provide for a defence based solely on good faith.
The question of conscientious objection does not arise. When it comes to
proper ethical practice, particularly one which is evidence based, there can
be no issue in relation to conscientious objection. The model with which any
doctor here is faced when presented with a woman who is pregnant is that he
or she has two patients. It does not matter what one's view is on abortion
on a personal or political level. The factual reality is that when a doctor
is faced with a pregnant woman he or she has two patients and a duty to
both. It seems to me that this is not necessarily flagged with particular
significance in the Bill.
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Dr. Ruth Fletcher: I thank the joint committee for the invitation to
present. It occurred to me when passing my alma mater, Trinity College, that
I have been teaching and researching in this area for almost 20 years. I am
honoured to have this opportunity today.
For someone like me who works in the area of ethics and law the proposed
legislation in terms of its recognition of a public obligation to implement
an existing constitutional right to life-saving abortion, is welcome.
However, it does not do enough to meet the ethical obligation to value
women's lives. I will focus my opening remarks on four key points, including
the definition of the unborn; the significance of risks under heads 2 to 4
justifying a termination of pregnancy; the limits on the rights to
conscientious objection and the inappropriateness of criminalisation.
On the definition of the unborn, head 1 suggests that the unborn should be
defined to mean following implantation, drawing on Roche v.
Roche concerning frozen embryos as a precedent. With respect, the ethical
arguments for choosing the point of implantation as a significant moment for
legal protection of human life have not been adequately addressed. Given
past failures to interrogate the assumed wrongness of abortion and, given
the particular factual context of Roche v. Roche, it is open to this
Legislature to consider more fully the criteria by which the unborn should
be defined. The best ethical argument available to us from the literature
and moral philosophy justifying protection of early forms of unborn life
from implantation is that of potential personhood. This is the argument that
from its earliest stages, subject to assistance from the pregnant woman, the
embryo and foetus will go on to become a person. This future personhood
argument does not apply, however, to foetuses with lethal abnormalities.
Much to the anguish of their parents, they will die after birth and,
therefore, they do not have a future as persons. That ethical argument does
not apply in this case. Moreover, the State argued in D. v. Ireland
that foetuses with lethal abnormalities could be excluded from the legal and
constitutional definition of the unborn. Given that D lost her case before
the European Court of Human Rights, partly because this was the argument
made by the State and domestic remedies were not exhausted, there is, I
would argue, more of a moral obligation on the Legislature to deliver on
that argument and to address the definition of the unborn in a way that
excludes foetuses with lethal abnormalities.
A second important aspect of this ethical argument for protection of early
embryonic life from implantation is that it rests on the potential to become
a person rather than on actual personhood. Potential personhood is best
regarded as giving early embryonic and foetal life moral value because of
what it will become in the future. This potentiality is obviously ethically
significant but not as significant as the moral status we give to sentient
forms of human life, namely, forms of human life that are developed to the
point of feeling pain or pleasure. That is another stage of development with
another set of capacities and another level of moral protection is due it.
It is also not the same as the higher moral status which comes with full
personhood, namely, the capacity to reason, communicate, will and act on our
lives. A person's interest in her own bodily and moral integrity may justify
limitations on the duty to sentient beings. This is because part of what
makes life valuable is the person's ability to reflect on her life over time
in particular factual circumstances and to make moral choices in that
regard. That is part of what we value about being human.
To sum up, the following categories I would suggest provide a better ethical
framework for the protection of unborn human life than does the assumed
significance of implantation underpinning the legislation. First,
pre-sentient embryonic and foetal life has moral value rather than moral
status. It should be taken into account in moral decision-making but in
itself does not impose harm-reducing duties on others. Second, sentient
foetal life has moral status and may impose a duty on other persons to
reduce harm to that sentient foetal life. Third, self aware personhood has a
higher moral status than sentient life and this can limit the duties we owe
sentient forms of life. They are the three ethical frameworks discussed in
literature on medical ethics and law, which I believe will be helpful in
informing the debate around protection of unborn life in its early stages.
My recommendation in this regard is that the unborn should be defined so as
to exclude those foetuses which have lethal abnormalities and which will not
have a future independent life. This possibility is open to the Legislature.
It does have the power to do this. Also, the unborn should be defined to
mean the foetus following the earliest moment at which sentience is
On heads 2 and 4 and the risk of loss of life that justifies a termination
of pregnancy, these heads provide for the kinds of risk to a woman's life
which will legally justify a termination of pregnancy under the scheme.
Others have commented more eloquently than I can on the need to remove
obstacles in life-saving abortion care and on the troubling mistrust of
women with suicidal ideation. I would like now to focus on the narrowness of
the risk to life ground for termination of pregnancy. This ground has been
drawn very narrowly, in part because it is assumed that Article 40.3.3Â°
requires the life of the pregnant woman to be treated the same as the life
of the embryo or foetus. Again, turning to ethical moral philosophy and
legal theory, equality scholars have long argued that equality does not mean
sameness rather ethical treatment requires the accommodation of actual
differences between beings of all shapes and forms. Vindicating the life of
the unborn with due regard to the equal right to life as directed by Article
40.3.3Â° should entail a full evaluation of all the interests that the
woman's life entails, as well as all the interests of the unborn.
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Dr. Ruth Fletcher: To state the
issue concisely, women are conscious, sentient beings with moral viewpoints
and responsibilities to other people. Foetuses are not quite that. They are
the bearers of biological life and they will be future persons but this is
not the same kind of life as that of the breathing, feeling and thinking
woman. The current legal test treats women and foetuses as if they are the
same, which I argue devalues both forms of life. It does not value their
specificity and particularity sufficiently.
In regard to head 12 on conscientious objection, in principle the
inclusion of a conscientious objection clause is defensible, subject to two
conditions. First, it must be applied to individuals rather than to
organisations and, second, it must only be applied in circumstances where
alternative provision is available to a woman needing termination of
pregnancy. If respecting human life includes respecting the personal choices
which give life meaning, obviously health care practitioners may avoid
performing health care that infringes their moral values. As the explanatory
notes acknowledge, however, conscientious objection is not an absolute
interest but is limited by the need to prevent harm to other people,
pregnant women in this instance. In circumstances where a health care
practitioner cannot arrange alternative provision without undue delay, the
right to conscientious objection may be limited by the duty to prevent harm
to patients. That is an issue of which we must be mindful in legislating for
conscientious objection. This recognition of health care practitioners'
consciences is worthy but it is inconsistent with the lack of legal
recognition of women's consciences in this context. If conscientious
objection to the provision of abortion is legally acceptable, as in head 12,
so is an equivalent objection to sustaining the embryo or foetus within
one's body. If a woman's conscience tells her that terminating a pregnancy
is the best moral resolution of all the complex issues that arise in a
particular factual pregnancy, her conscience equally deserves recognition
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Dr. Ruth Fletcher:
I will respond to Deputy Healy's question on the definition of the unborn
and the possibility for having that definition exclude foetuses with lethal
abnormalities. The main argument I was making in terms of having a brief to
talk about the ethical arguments today, was that the future potential
personhood of those foetuses unfortunately is not going to be achieved. In
ethical terms, one is asking women to sustain pregnancies when a future
independent life is not going to be achieved at the end of the day. It would
be regarded as unethical in that sense in that one is imposing suffering
when a good is not going to be attained out of that suffering at the end of
On the legal point in D v. Ireland, given the ethical arguments and
given the legal possibility of defining the unborn in a way that it would
exclude foetuses who have these particular extreme conditions, which mean
that they cannot survive birth, that would achieve the delivery of the
State's argument in D v. Ireland which, in effect, meant that D lost
her case before the European Court of Human Rights because she had not gone
to a local court in Ireland. The European Court of Human Rights said that
argument could have been made before a domestic court and therefore the case
was thrown out. That gives the Legislature an added responsibility to act on
behalf of those women given that this case was thrown out by the European
Court of Human Rights on the basis of that argument because it believed in
the possibility that Irish courts and the Irish Legislature could interpret
Article 40.3.3o in this way. The Legislature does have a moral
obligation to pick that up as well.
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Dr. Ciaran Craven: My comments in relation to conscientious objection have to be taken in
context. If the proposed Bill is reflecting proper ethical, legal
consideration, then the question of conscientious objection simply cannot
arise because it accords with both the ethical imperative and the legal
imperative as I tried to make out. If, on the other hand, it is doing
something different, then it may well be the case that a question of
conscientious objection arises. Whereas the case has been made that
conscientious objection is something of a personal right and is vested in
individuals, it in itself, as we know from other jurisdictions, is capable
of giving rise to all kinds of issues and difficulties when one steps one
position more remote from the person who is involved in the procedure. In
our neighbouring jurisdiction there have been significant problems in
relation to it.
In so far as the question of whether this is a right which vests in
institutions is concerned, again the courts recognise that no doctor or
health care professional can be obliged to do something which he or she
considers to be contrary to the best interests of the patient. Institutions
do not have arms and legs or eyes and ears, they can only operate through
the personnel they employ or engage. Trying to make a distinction between a
right to object in relation to institutions, on the one hand, and
individuals, on the other, is, in my view, not sustainable.
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Dr. Ruth Fletcher: Many rich questions were asked and I thank committee
members for them. I will address the points on the definition of the unborn.
The question was asked as to how the proposed definition of "unborn" would
deal with the idea that it applied to those foetuses which are born and
survive for one second. Another issue was whether it includes dead embryos
or foetuses in the womb.
At present we do not have legal precedents on the definition of the
unborn where a lethal abnormality exists. We do not have a direct legal
precedent on this particular issue. Because we do not have this direct legal
precedent the Legislature has the ability to define "unborn" in a way which
would address these problems which have arisen through acknowledging the
suffering of women and couples who have had to travel, even though the
pregnancies will not survive. The view has been put forward that "unborn"
could apply to foetuses which have survived even for one day, but I advocate
we do not accept this view and that we define the unborn in a way which
excludes foetuses which do not have the capacity to survive. This is not to
say these foetuses have no value; I do not argue this at all. I am just
arguing no good will be achieved by forcing a woman to continue a pregnancy
when the child will not survive.
With regard to the point on the current definition of the unborn being
overly broad and not excluding even dead embryos or foetuses, it is
interesting that the institute raised this issue. Obviously as a medical
matter it is seen as excluded and comes under the category of miscarriage.
This is what is happening in medical guidelines and practice at present. We
need a tighter definition of the unborn to exclude this possibility. We also
have an opportunity to have a definition of the unborn which deals with
foetuses which would survive through pregnancy but would not survive for
long after birth.
The second interesting set of questions raised were to do with arguments
around full personhood and how we distinguish between the foetus as sentient
life and the born patient stripped of consciousness because he or she was in
a crash or is a patient with Alzheimer's disease. We are not stating that
full personhood is all that counts; we are saying there are three different
forms of human life which all impose values and status. I distinguish
between the example of a person with Alzheimer's disease or the person in a
crash and sentient foetal life in the womb because a person with Alzheimer's
disease or a person who has been stripped of consciousness through an injury
had been sentient with a conscience and a will but through accident or
disease this capacity has been lost. Because such people had this full
personhood status it is possible to distinguish them from an earlier foetus
which has not yet attained these capacities. Its ability to attain these
capacities is dependent on a pregnant woman getting it to the point of
attaining them. There are ethical ways in which we can distinguish these
cases. The ways in which they are similar are obviously that in all cases
families and loved ones are concerned about the value of these forms of
life. If they are sentient forms of life they are similar in this way and
this can impose duties on us. I am just saying they are not the same order
of duties as full personhood would impose.
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Dr. Ciaran Craven: The questions asked by Senators Reilly, Byrne and
Bacik relate to foetal abnormality and what the unborn is. I listened with
interest to what Dr. Fletcher stated and it strikes me as quite a novel
proposition that we can characterise life as having three different forms.
Be this as it may, I am concerned about Senator Bacik's characterisation,
and I am subject to correction on this, when she discussed the question of
lethal foetal abnormality and whether it is something which ought to be
protected. We must be very careful to note the mere fact a baby happens to
have a lethal abnormality does not of itself mean it is wholly inconsistent
with life. Generally it means it is inconsistent with prolonged life. It may
well be a matter of minutes, hours, days or even months.
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