CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 juin 2006

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Bonello ,   Mr   J. Hedigan,   Mr   M. Pellonpää ,   Mr   K. Traja ,   Mr   J. Borrego Borrego ,   Mrs   L. Mijović, judges , and, successively, Messrs M. O’Boyle and T. L. Early , Section Registrars , Having regard to the above application lodged on 11 July 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the comments submitted by The Irish Family Planning Association, The Center for Reproductive Rights, the Pro-Life Campaign and the Society for the Protection of Unborn Children, Having regard to the parties’ oral submissions at the hearing on 6   September 2005, Having deliberated, decides as follows: THE FACTS 1.     The applicant, D, is an Irish national who was born in 1961 and lives in Ireland. She is represented before the Court by Ms B. Hewson, a barrister practising in London. The Irish Government (“the Government”) are represented by their Agent, Ms P. O’Brien. At the oral hearing on 6 September 2005 the applicant was further represented by Mr M Forde S.C., counsel, and by Mr A. Qureshi, Adviser. The respondent Government were additionally represented by Mr B.McMahon, Co-Agent, by Mr D. O’Donnell, S.C. and Ms E. Barrington, B.L., both counsel and by Messrs C. O’Rourke and L. McCormack, Advisers. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 3.     The applicant has two children and attended the same family doctor for all her pregnancies. In late 2001 she became pregnant with twins by her current partner. She received antenatal care as a private patient in Hospital A where she expected to give birth and under the care of a consultant obstetrician (Doctor X). On 7 January 2002 an amniocentesis was performed in Hospital B, the 14 th week of pregnancy being the optimal time in terms of reducing risk to the foetus and obtaining reliable test results. On that day and following an ultrasound, she was informed that one foetus had “stopped developing” at 8 weeks gestation. The full results, communicated to Hospital B on 23 January 2002 (the applicant’s 17 th week of pregnancy), confirmed that the second foetus had a severe chromosomal abnormality (Trisomy 18, known as Edward’s Syndrome). The clinical outcome of this condition is described, in a report submitted by the Government (and adopted by the applicant), as “a lethal genetic condition” and it is confirmed that “those affected will die from the condition” and that “the median survival age is approximately 6 days”. While there were rare reports of those surviving beyond one year, the report indicated this was “the exception rather than the rule”. Doctor Y in Hospital B gave the applicant the results on 24 January 2002 and explained the diagnosis (fatal). He also arranged for a further sample to be sent for a second test: on 25 January 2002 the second amniocentesis confirmed the diagnosis. 4.     The applicant was devastated by the loss of her twins and dismayed by the prospect of carrying the pregnancy to term. She felt unable to tolerate the physical and mental toll of a further five months of pregnancy with one foetus dead and with the other dying. She did not consider any legal proceedings in Ireland at that point, but rather made arrangements to travel to the United Kingdom (“UK”) for an abortion. She felt unable to inform her family doctor and submitted that her health insurance did not cover the abortion costs. While she explained her wish to terminate the pregnancy to Doctors X and Y, they were “very guarded” in their responses indicating that they “appreciated that she was not eligible for an abortion in Ireland”. Hospital B “thought that she could not take her notes with her if she travelled abroad”. She did not clarify whether she brought a copy of her file and medical records to the UK or who made the appointment for her but confirmed that she had been “unable to obtain a referral”. 5.     At that stage, the proposed Twenty-fifth Amendment of the Constitution was due to be voted upon in a referendum fixed for 6 March 2002 (see paragraphs 43-45 below). 6.     On 28 January 2002 the applicant travelled to the UK. She did not say who made the appointment for her but indicated that she was relieved to see she was expected when she arrived at the relevant hospital in the UK. She was given an information booklet she found useful and consulted with a doctor. On 30 January 2002 the abortion was performed. The applicant chose the medical induction option (leading to 24 hours labour) as she felt it was the option most respectful of the second foetus. She felt that there was a culture of concern in this hospital which she found re-assuring. She did not have time to remain in the UK to have counselling on the genetic implications for future pregnancies, although she was given some statistical information about the recurrence of this abnormality. She transported the foetus to Ireland for a discrete burial by a sympathetic minister. 7.     The applicant submitted that, when she discussed this experience with her consultant (Doctor X), he advised her to get over it and that, when she confided in a replacement doctor, the latter gave her a sympathetic nod but no counselling. A close friend who was also a doctor offered to prescribe anti-depressants. Further to complications following the abortion, the applicant attended at a hospital in Ireland in February 2002 (for a procedure known as dilation and curettage of the womb): she felt unable to explain to that hospital or to her family doctor that she had had an abortion so she said that she had had a miscarriage. 8.     The applicant submitted that, as a result of the strain, she and her partner separated; she stopped working and re-studied; she took grief counselling, acupuncture, a holiday and genetic counselling. While Doctor X referred her to a psychiatrist in early 2003, she did not continue after the first visit for costs reasons and since “she had moved on”. B.     Relevant domestic law and practice 1. The legal position prior to the Eighth Amendment of the Constitution 9.     Article 40.3 of the Constitution stated as follows: “1 The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.” 10.     The courts’ judgments in certain cases relied upon these and other Articles of the Constitution to recognise the right to life of the unborn and to suggest that the Constitution implicitly prohibited abortion ( McGee v. Attorney General [1974] IR 284; G v. An Bord Uchtála [1980] IR 32; Finn v. Attorney General [1983] I.R. 154 and Norris v. Attorney General [1984] IR 36 ). 11.     Section 58 of the Offences Against the Person Act 1861 (“the 1861 Act”) provides that: “Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not be with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony ...” Section 59 of the 1861 Act states that: “Whoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour ...” Section 58 of the Civil Liability Act 1961 provides that: “The law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive". 12.     Section 10 of the Health (Family Planning) Act 1979 re-affirms the statutory prohibition of abortion and states as follows: “Nothing in this Act shall be construed as authorising - (a) the procuring of abortion, (b) the doing of any other thing the doing of which is prohibited by section 58 or 59 of the Offences Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of any instruments to procure abortion) or, (c) the sale, importation into the State, manufacture, advertising or display of   abortifacients.” The meaning of section 58 of the 1861 Act was considered in England and Wales in the case of R-v- Bourne [1939] 1 KB 687 . This case involved a fourteen-year-old girl who had become pregnant as a result of multiple rape. An abortion was carried out by Dr. Bourne, who was then tried under the section. In his ruling, Macnaghten J. accepted that abortion to preserve the life of a pregnant woman was not unlawful and, further, where a doctor was of the opinion that the probable consequence of a pregnancy was to render a woman a mental and physical wreck, he could properly be said to be operating for the purpose of preserving the life of the mother. The Abortion Act 1967 (as amended) now supercedes the Bourne case in England and Wales. The 1967 Act permits the termination of pregnancy on one or more of the following grounds: A. the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy was terminated; B. the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; C. the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman; D. the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of any existing child(ren) of the family of the pregnant woman; E. there is a substantial risk that if a child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped or, in emergency, certified by the operating practitioner as immediately necessary F. to save the life of the pregnant woman; or G. to prevent grave permanent injury to the physical or mental health of the pregnant woman. No time-limit attaches to grounds A, B and E, but there is a time-limit of 24 weeks for abortions under grounds C and D. 13.     The Abortion Act 1967 Act does not apply in Northern Ireland whose courts have applied the Bourne principles to interpret section 58 and 59 of the 1861 Act so as to find lawful abortions performed on minors or mentally disabled adults ( Re. F, unreported judgment of the High Court (Sheil J.) of 14 October 1993, Re. A.M.N.H, unreported judgment of the High Court (Mac Dermott L.J.) of 21 January 1994, Re S.J.B. unreported judgment of the High Court (Pringle J.) of 28 September 1995 and Re C.H. unreported judgment of the High Court (Sheil J.) of 19 October 1995 ). 14.     No Irish court had relied on the above-cited Bourne judgment. In the case of the Society for the Protection of the Unborn Child v. Grogan and Others (Unreported judgment of 6 March 1997 ) Keane J. maintained that “the preponderance of judicial opinion in this country would suggest that the Bourne approach could not have been adopted ... consistently with the Constitution prior to the Eighth Amendment”. 2. The Eighth Amendment of the Constitution 15.     Since the early 1980s some concern was expressed about the adequacy of existing provisions concerning abortion and the possibility of abortion being deemed lawful by judicial interpretation. There was some debate as to whether the Supreme Court would follow the course adopted in Roe v. Wade 410 US 113 (1973) of in the above-cited R v. Bourne case. 16.     A referendum was held in 1983 resulting in the adoption of a provision which became Article 40.3.3 of the Irish Constitution, the Eighth Amendment (53.67% of the electorate voted with 841,233 votes in favour and 416,136 against). This Article reads as follows: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” This is a self-executing provision of the Constitution not requiring legislation to give it effect. 3. Relevant case-law thereafter and the Thirteenth and Fourteenth Amendments 17.     A number of cases then came before the courts concerning the interpretation of the Eighth Amendment and the provision of information on or referral to abortion services available in other countries. 18.     In 1986 the Society for the Protection of the Unborn Child (“SPUC”) obtained an injunction restraining two organisations (Open Door Counselling and the Dublin Well Woman Centre) from furnishing women with information which encouraged or facilitated an abortion. The Supreme Court held ( Attorney General (S.P.U.C.) v. Open Door Counselling [1988] I.R. 593]) that it was unlawful to disseminate information, including the address and telephone number of foreign abortion services, which had the effect of facilitating the commission of an abortion (see also, S.P.U.C. (Ireland) v. Grogan and Others [1989] I.R. 753 ). These two organisations complained to this Court about restraints on their freedom to impart and receive information. A violation of Article 10 of the Convention was established ( Open Door and Dublin Well Woman v.   Ireland , judgment of 29   October 1992, Series   A no.   246 ‑ A) which led (see Committee Of Ministers resolution DH(96) 368) to the entry into force of The Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 (“the 1995 Act” – paragraphs 24-31 below). 19.     The interpretation of the Eighth Amendment was further considered in the landmark case of Attorney General v. X ([1992] 1 IR 1 ). X was a fourteen-year-old girl who became pregnant as a result of rape. Her parents took her to the UK for an abortion and then raised with the Irish police the question of having scientific tests carried out on retrieved foetal tissue with a view to determining paternity. The Director of Public Prosecutions was consulted who, in turn, informed the Attorney General. On 7 February 1992 an interim injunction was applied for by the Attorney General. It was obtained on an ex parte basis to restrain X from leaving the jurisdiction or from arranging or carrying out a termination of the pregnancy. X and her parents returned from the UK to contest the injunctions. The State undertook to pay the costs of the defendant minor, irrespective of the result. On 17 February 1992 the High Court granted an interlocutory injunction in essentially the same terms. On 26 February 1992, on appeal, a majority (4 to 1) of the Supreme Court discharged the injunctions. The Supreme Court held that, if it were established as a matter of probability, that there was a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful. The Supreme Court accepted the evidence that had been adduced in the High Court that the girl had threatened to commit suicide if compelled to carry her child to full term and deemed this threat of suicide to constitute a real and substantial risk to the life of the mother. 20.     Prior to interpreting the Eighth Amendment, the Chief Justice noted that no interpretation of the Constitution was intended to be final for all time (citing McGee v. the Attorney General [1974] IR 284), which statement was “peculiarly appropriate and illuminating in the interpretation of [the Eighth Amendment] which deals with the intimate human problem of the right of the unborn to life and its relationship to the right of the mother of an unborn child to her life.” He went on: “36. Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity, ... leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur. Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother’s right to life. 37. I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article [40.3.3] of the Constitution. Considering that a suicide risk had to be taken into account in reconciling the right to life of the mother and the unborn, the Chief Justice continued: “44. I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no way contested, and on the findings which he has made, that the defendants have satisfied the test which I have laid down as being appropriate and have established, as a matter of probability, that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by termination of her pregnancy. 45. It is for this reason that, in my view, the defendants were entitled to succeed in this appeal, and the orders made in the High Court have been set aside.” Similar judgments on the substantive issue were delivered by three other judges. McCarthy J noted that “the right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery”. He went on: 141. In my judgment, ... It is not a question of balancing the life of the unborn against the life of the mother; if it were, the life of the unborn would virtually always have to be preserved, since the termination of pregnancy means the death of the unborn; there is no certainty, however high the probability, that the mother will die if there is not a termination of pregnancy. In my view, the true construction of the Amendment, bearing in mind the other provisions of Article 40 and the fundamental rights of the family guaranteed by Article 41, is that, paying due regard to the equal right to life of the mother, when there is a real and substantial risk attached to her survival not merely at the time of application but in contemplation at least throughout the pregnancy, then it may not be practicable to vindicate the right to life of the unborn. It is not a question of a risk of a different order of magnitude; it can never be otherwise than a risk of a different order of magnitude. 142. On the facts of the case, which are not in contest, I am wholly satisfied that a real and substantial risk that the girl might take her own life was established; it follows that she should not be prevented from having a medical termination of pregnancy.” 21.     Some of the obiter dicta of the majority in the Supreme Court also indicated that the constitutional right to travel could be restrained so as to prevent an abortion taking place in circumstances where there was no threat to the life of the mother: the right to travel simpliciter did not take precedence over the right to life. 22.     The decision in the X case gave rise to a number of different questions: the Supreme Court had found that abortion could be lawful under Article 40.3.3 where it was necessary to avert a real and substantial risk to the life of the mother; the possible abuse of a suicide risk as a ground for obtaining an abortion; and the apparent willingness of the Supreme Court to grant injunctions to restrain persons from travelling abroad to abort. 23.     A further referendum was therefore called in November 1992. 68.18% of the electorate voted. Three proposals were put forward. The first proposal related to what was described as the “substantive” issue of the circumstances in which an abortion would be permissible within the State. The following wording, an addition to Article 40.3.3, was proposed as the Twelfth Amendment of the Constitution but it was rejected (1,079, 297 votes to 572,177): “It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction”. The second proposal, an addition to Article 40.3.3, concerned the issue of travelling abroad to obtain an abortion. It was accepted (1,035,308 votes to 624,059) and this Thirteenth Amendment reads as follows: “This subsection shall not limit freedom to travel between the State and another state” The third proposal (the Fourteenth Amendment) was also accepted (992,833 votes to 665,106) and it concerns the provision of information and read as follows: “This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.” 4. The Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 (“the 1995 Act”) 24.     The 1995 Act defines the conditions under which information relating to abortion services lawfully available in another State might be made available in Ireland. 25.     Section 2 defines “Act information” as information that (a) is likely to be required by a woman for the purpose of availing herself of services provided outside the State for the termination of pregnancies; and (b) relates to such services or to persons who provide them. Section 1 confirms that a “person to whom section 5 applies” means a person who engages in, or holds himself, herself or itself out as engaging in, the activity of giving information, advice or counselling to individual members of the public in relation to pregnancy. 26.     Section 5 of the Act provides as follows: “Where a person to whom section 5 applies is requested, by or on behalf of an individual woman who indicates or on whose behalf it is indicated that she is or may be pregnant, to give information, advice or counselling in relation to her particular circumstances having regard to the fact that it is indicated by her or on her behalf that she is or may be pregnant- (a) it shall not be lawful for the person or the employer or principal of the person to advocate or promote the termination of pregnancy to the woman or to any person on her behalf, (b) it shall not be lawful for the person or the employer or principal of the person to give Act information to the woman or to any person on her behalf unless— (i) the information and the method and manner of its publication are in compliance with subparagraphs (I) and (II) of section 3 (1) (a) and the information is given in a form and manner which do not advocate or promote the termination of pregnancy, (ii) at the same time, information (other than Act information), counselling and advice are given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances aforesaid, and (iii) the information, counselling and advice referred to in subparagraph (ii) are truthful and objective, fully inform the woman of all the courses of action that are open to her in relation to her particular circumstances aforesaid and do not advocate or promote, and are not accompanied by any advocacy or promotion of, the termination of pregnancy.” 27.     Section 8 of the 1995 Act reads as follows: “(1) It shall not be lawful for a person to whom section 5 applies or the employer or principal of the person to make an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies. (2) Nothing in subsection (1) shall be construed as prohibiting the giving to a woman by a person to whom section 5 applies or the employer or principal of the person of any medical, surgical, clinical, social or other like records or notes relating to the woman in the possession of the person or the employer or principal of the person or a copy or copies thereof in written form.” 28.     A person breaching sections 5 or 8 is guilty of an offence and is liable, on summary conviction, to a fine not exceeding £1,500. A prosecution may be brought by or with the consent of the Director of Public Prosecutions. 29.     Before its enactment, the 1995 Act was referred by the President to the Supreme Court for a review of its constitutionality. The Supreme Court found it to be constitutional ( Information (Termination of Pregnancies) Bill [1995] 1 I.R. 1 ) so that the 1995 Act thereby became immune from future constitutional challenge (Article 34.3.3 of the Constitution). 30.     In so concluding, the Supreme Court examined, inter alia , whether the provisions of Articles 5 and 8 were repugnant to the Constitution namely, whether, from an objective point of view, those provisions represented “a fair and reasonable balancing by [Parliament] of the various conflicting rights and was not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or on the constitutional rights of the mother or any other person or persons.” In this respect, the Supreme Court noted that: “The [1995 Act] merely deals with information relating to services lawfully available outside the State for the termination of pregnancies and the persons who provide such services. The condition subject to which such information may be provided to a woman who indicates or on whose behalf it is indicated that she is or may be pregnant is that the person giving such information is (i) not permitted to advocate or promote the termination of pregnancy to the woman or any person on her behalf; (ii) not permitted to give the information unless it is given in a form and manner which do not advocate or promote the termination of pregnancy and is only permitted to give information relating to services which are lawfully available in the other State and to persons, who in providing them are acting lawfully in that place if (a) the information and the method and manner of its publication are in compliance with the law of that place, and (b) the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of the termination of pregnancy. At the same time information, counselling and advice must be given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances and such information, counselling and advice must not advocate or promote and must not be accompanied by any advocacy or promotion of, the termination of pregnancy. Subject to such restrictions, all information relating to services lawfully available outside the State and the persons who provide them is available to her.” 31.     The Supreme Court went on to point out that: “It was further submitted that in certain circumstances a woman’s life and/or health may be placed at serious risk in the event that a doctor is unable to send a letter referring her to another doctor for the purposes of having her pregnancy terminated. This submission is based on a misinterpretation of the provisions of the [1995 Act] and in particular that of Section 8(1). This section prohibits a doctor or any person to whom Section 5 of the [1995 Act] relates from making an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies. It does not preclude him, once such appointment is made, from communicating in the normal way with such other doctor with regard to the condition of his patient provided that such communication does not in any way advocate or promote and is not accompanied by any advocacy of the termination of pregnancy. While a doctor is precluded by the terms of the [1995 Act] from advocating or promoting the termination of pregnancy, he is not in any way precluded from giving full information to a woman with regard to her state of health, the effect of the pregnancy thereon and the consequences to her health and life if the pregnancy continues and leaving to the mother the decision whether in all the circumstances the pregnancy should be terminated. The doctor is not in any way prohibited from giving to his pregnant patient all the information necessary to enable her to make an informed decision provided that he does not advocate or promote the termination of pregnancy. In addition Section 8(2) does not prohibit or in any way prevent the giving to a woman of any medical, surgical, clinical, social or other like records relating to her. ... Having regard to the obligation on [parliament] to respect, and so far as practicable, to defend and vindicate the right to life of the unborn having regard to the equal right to life of the mother, the prohibition against the advocacy or promotion of the termination of pregnancy and the prohibition against any person to whom Section 5 of the Bill applies making an appointment or any other arrangement for and on behalf of a woman with a person who provides services outside the State for the termination of pregnancies does not constitute an unjust attack on the rights of the pregnant woman. These conditions represent a fair and reasonable balancing of the rights involved and consequently Sections 5 and 8 of the Bill are not repugnant to the Constitution on these grounds.” 5. The Constitution Review Group Report 1996 32.     Established in April 1995, the Group’s terms of reference were to review the Constitution and to establish those areas where constitutional change might be necessary with a view to assisting the governmental committees in their constitutional review work. In its 1996 report, the Group considered the “substantive” law on abortion in Ireland following the X case and the rejection of the Twelfth Amendment to be unclear (for example, the scope of the admissibility of the suicidal disposition as a ground for abortion and the absence of any statutory time-limit on terminations allowed following the decision in the X case). Although no specific reference to the specific case of lethal foetal abnormality was made, the Group did consider the option of amending Article 40.3.3 so as to legalise abortion in constitutionally defined circumstances, finding in this respect that: “Although thousands of women go abroad annually for abortions without breach of domestic law, there appears to be strong opposition to any extensive legalisation of abortion in the State. There might be some disposition to concede limited permissibility in extreme cases, such, perhaps, as those of rape, incest or other grave circumstances. On the other hand, particularly difficult problems would be posed for those committed in principle to the preservation of life from its earliest stage.” 33.     The Group concluded that, while in principle the major issues discussed should ideally be tackled by constitutional amendment, there was no consensus as to what that amendment should be and no certainty of success for any referendum proposal for substantive constitutional change in relation to Article 40.3.3. The Group therefore considered that the only practical possibility at that time was the introduction of legislation to regulate the application of Article 40.3.3. That legislation would, inter alia , afford express protection for appropriate medical intervention necessary to protect the life of the mother, require written certification by appropriate medical specialists of “real and substantial risk to the life of the mother” and impose a time-limit to prevent a viable foetus being aborted in circumstances permitted by the X case. 6. A & B v. Eastern Health Board, Mary Fahy, C and the Attorney General (notice party) [1998] 4 I.R. 464 (the “C case”). 34.     This case concerned a thirteen-year-old girl (“C”) who became pregnant following a rape. The Eastern Health Board, which had subsequently taken the girl into its care, became aware that she was pregnant and, in accordance with her wishes, obtained a District Court order (21 November 1997) allowing the Health Board to bring her abroad for an abortion and to make all necessary arrangements. C’s parents sought to challenge those orders by judicial review. On 28 November 1997 the High Court accepted that, where evidence had been given to the effect that the pregnant young woman might commit suicide unless allowed to terminate her pregnancy, there was a real and substantial risk to her life and such termination was therefore a permissible medical treatment of her condition where abortion was the only means of avoiding such a risk. An abortion was therefore lawful in Ireland in C’s case and the travel issue became unnecessary to resolve. However, the High Court indicated that it would have granted the relief sought by the parents to annul the District Court order. The Thirteenth Amendment was framed in negative terms so that one could not be prevented from travelling abroad to have an abortion but the amendment was never intended to give a new substantial right to travel abroad to have an abortion. While the High Court had advised the parties to approach the Supreme Court to facilitate an early appeal and while the Supreme Court cleared its schedule to hear any appeal within days, no appeal was lodged. 7. The Interdepartmental Working Group Green Paper on Abortion, September 1999 (“Green Paper on Abortion”) 35.     The introduction noted that: “The current situation ... is that, constitutionally, termination of pregnancy is not legal in this country unless it meets the conditions laid down by the Supreme Court in the X case; information on abortion services abroad can be provided within the terms of the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995; and, in general, women can travel abroad for an abortion. There are strong bodies of opinion which express dissatisfaction with the current situation, whether in relation to the permissibility of abortion in the State or to the numbers of women travelling abroad for abortion. Various options have been proposed to resolve what is termed the “substantive issue” of abortion but there is a wide diversity of views on how to proceed. The Taoiseach indicated shortly after the Government took office in 1997 that it was intended to issue a Green Paper on the subject. The implications of the X case were again brought sharply into focus in November 1997 as a result of the C Case, and a Cabinet Committee was established to oversee the drafting of this Green Paper, the preparatory work on which was carried out by an interdepartmental group of officials. While the issues surrounding abortion are extremely complex, the objective of this Green Paper is to set out the issues, to provide a brief analysis of them and to consider possible options for the resolution of the problem. The Paper does not attempt to address every single issue in relation to abortion, nor to give an exhaustive analysis of each. Every effort has been made to concentrate on the main issues and to discuss them in a clear, concise and objective way. Submissions were invited from interested members of the public, professional and voluntary organisations and any other parties who wished to contribute. ...” 36.     Chapter 4 of the paper examined those circumstances, other than the suicide risk of the X and C cases, in which other jurisdictions allowed abortion. One of the grounds of abortion examined was a termination following a diagnosis of congenital malformation. The paper noted: “4.20 A number of submissions seek that abortion be permissible on grounds of foetal impairment in cases of extreme abnormality or where the condition of the foetus is incompatible with life. Many others, however, express strong opposition to any such provision. 4.21 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 no specific provision in this regard. However, in some of these an abortion may be obtained on the grounds of adverse effect on the mother’s mental health. 4.22 Congenital malformations/anomalies are a major cause of stillbirth, neonatal death and of physical and mental defects and metabolic disorders. Approximately 2% of new-born infants have a major malformation. The incidence may be as high as 5% if malformations detected later in childhood, including abnormalities of the heart, kidneys, lungs and spine, are included. Malformations are also common among spontaneous abortions. 4.23 There are many causes of congenital malformations. Approximately half are due to genetic abnormalities. In about 40% the cause is unknown and the remaining cases are due to chromosomal abnormalities, teratogens (anything capable of disrupting foetal growth and producing malformation) and other factors. Major malformations are structural abnormalities that have serious medical, surgical or cosmetic consequences. Minor anomalies which have no serious consequences 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. 4.24 Examples of genetic abnormalities include achondroplasia (a condition causing dwarfism and hydrocephalus), cystic fibrosis and haemophilia. Other malformations include neural tube defects. These are among 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. 4.25 The identification of pregnancies that are of greater risk is a fundamental concept of antenatal care. This is achieved through a process of history taking, physical examination and screening. The purpose is to detect and treat any condition that puts the mother and baby at risk. Prenatal screening is also used to detect and assess possible congenital malformation. There are a number of prenatal diagnostic tests available. Common indications for prenatal diagnosis are advanced maternal age and a previous child with either Down’s Syndrome or neural tube defect. Amniocentesis is frequently used in the detection of these conditions. Other prenatal diagnostic tests include ultrasound and the use of cellular and biochemical markers to detect potential foetal abnormalities. 4.26 Estimates of the incidence of congenital abnormalities in Europe, which include statistics on induced abortions, suggest that induced abortions as a result of foetal malformations represented 14.8% of all reported congenital abnormalities in 1994. Induced abortions among pre-natally diagnosed cases of malformation were the most frequent in anomalies of the nervous system (anencephaly) and in chromosomal anomalies (Down’s syndrome). 4.27 In 1996 in England and Wales a total of 1,929 abortions were carried out under ground E, i.e. where there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. Of these, 882 were terminated because of congenital malformations, 561 were due to chromosomal abnormalities and 486 were due to other conditions. In total they account for slightly more than 1% of all abortions carried out in England and Wales. 4.28 Terminations where a congenital abnormality is suspected are usually performed before 20 weeks gestation with a number of exceptions (usually 24 weeks). Authorisation of abortions on these grounds is usually given by one, two or a panel of doctors. In Belgium and France after the first trimester two doctors must agree that the foetus is believed to be seriously impaired. In Denmark authorisation is made by a committee comprising a social worker and two doctors. In Finland an abortion on grounds of foetal impairment must be authorised by the State Medical Board. In England and Wales, in common with the other statutory grounds under which abortion is available, the abortion must be certified as justifiable by two registered medical practitioners, while in Spain authorisation involves two specialists of an approved public or private health centre neither of whom is the doctor performing the abortion or under whose direction the abortion is to be performed.” 37.     Chapter 7 of the paper comprised a discussion of seven possible constitutional and legislative solutions: -           an absolute constitutional ban on abortion; -           an amendment of the Constitution so as to restrict the application of the X case; -           the retention of the current position; -           the retention of the constitutional status quo with a legislative restatement of the prohibition of abortion; -           legislation to regulate abortion as defined in the X case; -           a reversion to the pre-1983 position; and -           permitting abortion beyond the grounds specified in the X case. 38.     In this latter respect,