Written evidence from the Alliance for
Choice
INTRODUCTION
1. Alliance for Choice welcomes the opportunity
to provide evidence to the Northern Ireland Affairs Committee
on a Human Rights Bill for Northern Ireland. Our evidence relates
to reproductive rights, specifically the right to abortion in
Northern Ireland. We at Alliance for Choice believe that a Human
Rights Bill for Northern Ireland should be consistent with current
international standards and reflect the particular circumstances
of Northern Ireland. We therefore reject the Northern Ireland
Human's Rights Commission (Dec 2008) assertion in their advice
to the Secretary of State that "it is inappropriate for
abortion to be dealt with in a Bill of Rights".
2. Northern Ireland continually fails to meet
international human rights standards due to the failure to decriminalise
abortion and provide women access to safe and free abortions similar
to other women in the United Kingdom. Abortion is legal in Northern
Ireland in some circumstances but access is severely restricted
and abortion law is still bound by the 1861 Offences Against the
Person Act. Other parts of the United Kingdom rely on the 1967
Abortion Act for abortion law.
3. Alliance for Choice is an organisation that
campaigns for the extension of the 1967 Abortion Act to Northern
Ireland. It is made up of women and men, from both Catholic and
Protestant communities in the North of Ireland, who want to see
equality and self-determination for women here. Alliance for Choice
was set up in 1996, emerging from the Women's Right to Choose
Group, to encourage the incoming Labour government to implement
Labour Party policy to extend the Act.
4. Much of our work has been about making
heard the voices of the tens of thousands of women from NI who
have had abortions in England and elsewhere since 1967—thereby
exposing the hypocrisy of the politicians who say there is "no
demand for abortion rights" in NI.
Ms. C:
"When I was aged 25 and my daughter Caroline
was almost eight, I went for a pregnancy test at the LIFE offices.
My distress at the positive test was so great, the counsellor
took some time to calm me down. I explained that Caroline has
severe autism and challenging behaviour. As a lone parent, I was
just about managing to keep her in the community. Another child
would mean that Caroline would end up in care and I wasn't having
that.
The counsellor said that maybe God was sending me
this child `to make up for Caroline'. This insult to my darling
daughter summed up the `pro-life' attitude for me. Getting respite
care for a few days to allow me to go to England was very difficult,
although the all my friends rallied round with money, so that
part wasn't too bad.
Five years on, Caroline is still at home with me
and her behaviour is greatly improved. If I had continued that
pregnancy, I have no doubt that she would be in care and much,
much worse in her behaviour and abilities."
DEPARTMENT OF
HEALTH, SOCIAL
SERVICES AND
PUBLIC SAFETY
(DHSS&PS)—GUIDANCE ON
THE TERMINATION
OF PREGNANCY:
THE LAW
AND CLINICAL
PRACTICE IN
NORTHERN IRELAND
5. The DHSS&PS published guidance on
the termination of pregnancy in Northern Ireland following a Judicial
Review brought by the Family Planning Association in 2004. The
Review found that the DHSS&PS had failed in its statutory
duty to issue guidance in relation to the termination of pregnancy
in Northern Ireland and to investigate the difficulties in obtaining
services for the termination of pregnancy.
6. The Guidance was published on 13th March 2009.
The Guidance produced by the DHSS&PS appears to present a
number of additional barriers such as need a psychological assessment
and the use of chaplaincy services.
7. Alliance for Choice believes that these
additional barriers and indeed the Guidance are not compatible
with international human rights standards and do not guarantee
access to abortion service in Northern Ireland. It is these "particular
circumstances" that should be included in a Human Rights
Bill for Northern Ireland.
CONTEXT OF
INTERNATIONAL LAW
Platform for Action
8. The Platform for Action, agreed at the Fourth
World Conference on Women in Beijing in 1995, stated that:
"... the neglect of women's reproductive
rights severely limits their opportunities in public and private
life, including opportunities for education and economic empowerment.
The ability of women to control their own fertility forms an important
basis for the enjoyment of other rights. Shared responsibility
between women and men in matters related to sexual and reproductive
behaviour is also essential to improving women's health".
The Convention on the Elimination of all forms
of Discrimination Against Women
9. The United Nations Convention on the Elimination
of all forms of Discrimination Against Women (CEDAW), in Article
12 refers to "access to health care", and specifically
includes family planning. The General Recommendation 24: on Health
states that, "it is discriminatory for a State Party to
refuse to legally provide for the performance of certain reproductive
health services for women".[65]
The General Recommendation points to barriers such as criminalising
medical procedures only needed by women who undergo those procedures
as well as high fees, requirement of spousal, parental or hospital
authorisation and inaccessibility because of distance or travel.
10. The Government in its 4th (1999) and 6th Periodic
Report (2007) of the United Kingdom and Great Britain and Northern
Ireland (May 2007) to the CEDAW Committee states that the 1967
Abortion Act does not apply to Northern Ireland and is not devolved
to the Assembly.
11. Concluding comments from the Committee on
hearing the 4th Periodic Report in 1999, were highly critical
of the failure to provide abortion services to women of Northern
Ireland and,
"... noted with concern that the Abortion Act
1967 does not extend to Northern Ireland where, in limited exceptions,
abortion continues to be illegal. It recommends a process of public
consultation on reform of the abortion law".[66]
12. Concluding Comments of the CEDAW Committee
in July 2008 were equally damming, by calling again for a public
consultation process on abortion law and in line with General
Recommendation 24 and the Beijing Declaration and Platform for
Action to consider amending abortion law "to remove the
punitive provision imposed on women who undergo abortion".
The European Convention on Human Rights
13. The European Convention on Human Rights
(ECHR) has also been tested on the issue of abortion. Recently
in Tysiac v Poland,[67]
the European Court (ECrtHR) held that failure to provide an abortion
to a woman where her pregnancy threatened her health was a violation
of Article 8, "Right to Respect for Private and Family Life".
The Court held that the "chilling effect" on doctors
due to the uncertainty of the law and the possibility of them
incurring criminal responsibility must be alleviated. The legal
framework, "... must first and foremost, ensure clarity
of the pregnant woman's position".
14. In June 1993, the Standing Advisory Commission
on Human Rights (SACHR) issued a public consultation document
on the issue of abortion. Written by Simon Lee, Professor of Law
at the Queen's University of Belfast, it observed that: "The
law on abortion in Northern Ireland is so uncertain that it violates
the standards of international human rights law. It could not
withstand a challenge before the European Court of Human Rights
at Strasbourg."
15. A pamphlet produced by the NIHRC in 2001,
"The Bill of Rights: Women"[68]
states that it is probable that the current law in Northern Ireland
is likely to be in violation of the European Convention on Human
Rights, for failing to provide for abortion and for not being
clear as to the legality of the current situation.
Foetal Rights?
16. The concentration of foetal rights in medical
discourse and social conscience reinforces the notion of foetal
rights, despite no basis in law. However, the ECHR has been tested
on whether it covers foetal rights through Article 2, "Right
to Life", in Vo v France.[69]
The patient was six months pregnant and as a result of confusion
with another patient who was to have a coil removed, the applicant
lost her unborn child. In attempting to remove the coil, the doctor
ruptured the amniotic sac causing loss of fluid, which resulted
in her losing her unborn child. Under French law, she could not
bring criminal proceedings, as the foetus cannot be the victim
of unintentional homicide. The ECrtHR held that it was not practicable
to answer in the abstract whether the unborn child is a person
for the purposes of Article 2 (Overy and White, 2006).
17. Whilst the ECrtHR has not expressly recognised
the right to abortion, the Grand Chamber judgement in Vo stressed
that any right to life enjoyed by the foetus is "implicitly
limited by the mother's rights and interests".[70]
18. The Republic of Ireland has however codified
foetal rights within its constitution. Article 40.3.3 of the Constitution
provides:
"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".[71]
19. A series of challenges have been made to
this, notably the X case,[72]
D case,[73]
where the competing rights of the woman and the foetus were discussed
in terms of foetal rights and the right to travel.
20. Samiloff (2007) in considering whether Irish
abortion law breaches human rights law argues that the right to
travel has now been established, but the rights of the foetus
remain open to challenge. He suggests that it is likely that Article
40.3.3 of the Constitution is in breach of the European Convention
on Human Rights.
International Law
21. O'Rourke (2007) in her Shadow Report submission
to the 6th Periodic Report of the UK, notes that the provision
of non-directive information and advice on healthcare is integral
to Article 12, "Right to Health", of CEDAW and points
to the difficulty of availing of this service in Northern Ireland.
She notes how the Brook Advisory Clinic, which provides free confidential
advice to young people, does not include referral services for
abortion; and the Fpa offices in Belfast and Derry are frequently
picketed by anti-abortion campaigners and religious groups. Women
and staff are harassed and intimidated as they enter these premises,
which she argues, goes beyond the freedom of assembly guaranteed
under international human rights treaties.
Ms. A:
"It was 1993 and my youngest child was eight
years old when I found myself pregnant again. My marriage had
broken up a few years before and my husband had left me to raise
our five children alone with no support, financial or emotional.
I had returned to education as a mature student and I was in the
final year of my degree.
All the struggling to keep up with home and University
was about to pay off. I was just months away from my final exams.
When I told the man I was seeing that I was pregnant, he just
didn't want to know. He had children of his own from a previous
relationship and wouldn't be around to help, no matter what I
decided to do.
Even though I was raised a Catholic and I didn't
agree with abortion, when I was faced with these circumstances,
I felt I had no other choice. It took five weeks from when I decided
to have a termination to raise the money to travel over. I borrowed
money from friends, lying to some and trusting others with my
secret. I had to use the phone-bill money as well, so we got cut
off just before I left for London. Northern Ireland is part of
the UK, so I don't understand why I couldn't have the abortion
here".
PUBLIC OPINION
22. It is assumed that there is strong opposition
to abortion in Northern Ireland. However, the evidence that does
exist suggests that public opinion is broadly sympathetic to a
liberalisation of abortion law:
— The Ulster Marketing Surveys conducted
in May 1992, February 1993 and August 1994 show significant increases
in the number of people who supported abortion at the request
of the woman.
— In 2000-01 a survey of women attending British
abortion clinics, carried out by Marie Stopes International found
that 95% would have preferred to have their abortion in Northern
Ireland—44% had to borrow money, 68% knew of other women
who also had abortions and 95% supported the extension of the
1967 Abortion Act to Northern Ireland.[74]
— The Northern Ireland Assembly on 20 June
2000 debated a motion on abortion and a poll by the Belfast Telegraph
on the day of the debate reported that fifty eight percent of
respondents felt that abortion on demand should be legalised.[75]
23. The British Medical Association has
called for the extension of the 1967 Abortion Act to Northern
Ireland as have the majority of Trade Unions.
COSTS
24. This service for women in England and Wales
is provided under the National Health Service, in that it is provided
free of charge. Women from Northern Ireland have to access abortion
services through the private sector and pay for travel and accommodation.
For women on low incomes and women in rural areas, these barriers
can have serious implications.
25. The cost of an abortion from Marie Stopes International
is in the region of £550 to £670 depending on gestation
period and choice of anaesthetic. For women from the island of
Ireland, this is reduced to £410 to £500, to acknowledge
the restrictions and limitations in terms of the legislative,
public policy and service provision arenas. In addition to the
cost of the procedure, flights and accommodation need to be factored
in (approximately £250 to £350). This does not take
account of the emotional and distressing nature of having to travel
in secret and often alone.
26. Issues of the provision of information,
non-directive counselling and follow-up care for women who have
undergone abortions need to be considered also:
Ms. G:
"I really thought felt so close to insanity
when I discovered I was pregnant. It should have been an ideal
time—my son was just two years old, the perfect time to
conceive a sibling. But Michael has severe brain damage and the
prognosis was that he would never walk, talk, see, hear, get out
of nappies. I was already traumatised by that knowledge and the
idea of having another baby—with the danger that the same
thing might happen again—it just terrified me in a way that
I can't describe. I can say that I understood for the first time
how women can risk their lives using knitting needles or coat
hangers to cause an abortion, because I felt desperate enough
to do that. I had nightmares that somehow I would be stopped before
I got to England and forced to continue the pregnancy. I was unable
to function for the five weeks I had to wait until I was far enough
along to have a termination. Although I needed him with me, my
partner couldn't accompany me although he wanted to because someone
had to look after our son; if I had been able to have the termination
in our local hospital, it would have been far easier for the whole
family. From what I understand now about the law here, I think
I was certainly entitled to an abortion in my local hospital because
`nervous wreck' underestimates how traumatised I was".
BARRIERS
27. The "Other Irish Journey",
published by Marie Stopes International in 2001, outlines the
findings of a survey of Northern Irish women attending abortion
clinics in GB. The report reveals the nature of the barriers faced
by women from Northern Ireland in assessing abortion services:
— interviews revealed confusion amongst
GPs about abortion provision; and
— almost half had to borrow money to finance
their abortion.
28. The Fpa in its response to the DHSS&PS
Draft Guidance argue that it is not uncommon in Northern Ireland
for all doctors in a group practice to object to abortion on conscientious
objection grounds. The legal right for health professionals to
opt out of providing treatment or care for pregnant women comes
under the provisions of Article 4 of the 1967 Abortion Act, "conscientious
objection to participation in treatment". As this does not
apply to Northern Ireland, health professionals are not protected
in this instance.
CONCLUSIONS
29. Alliance for Choice believes that the current
situation in Northern Ireland in relation to abortion is unacceptable
and it is important that a Human Rights Bill for Northern Ireland
locates this as a human rights issue for women. It is no longer
right that in the 21st Century and in a modern democracy, that
women, in one part of the United Kingdom are denied access to
abortion services close to home. The need to travel and pay for
abortion places unacceptable financial and emotional burdens on
women in addition to unnecessary health risks.
30. Alliance for Choice believes that the essence
of a Human Rights Bill for Northern Ireland should be to put the
emphasis on the protection and promotion of women's human rights
in relation to health and well-being, allowing for the exercise
of personal conscience at individual level.
April 2009
65 General Recommendation 24, "Health," 1999
CEDAW Committee. Back
66
Committee on Elimination of Discrimination Against Women concludes
Consideration of UK Reports, WOM/1132, 10 June 1999. Back
67
Tysiac v Poland 5410/03 20 March 2007. Back
68
NIHRC, January 2001, "The Bill of Rights: Women"; p
13. Back
69
(App. 53924/00), Judgement of the Grand Chamber 8 July 2004;(2005)
40 EHHR 259. Back
70
Plomer, 2005, p 332. Back
71
Constitution of Ireland, July 1937. Back
72
Attorney General v X [1992] I.R.1. A young girl was raped
and as a result of this became pregnant and was restrained from
travelling to England to obtain a termination. An appeal to the
Supreme Court in Ireland held that the young girl had a right
to an abortion under Article 40.3.3 if there was a "real
and substantial risk" to her life. Back
73
D v Ireland (App 26499/02) 28 June 2006. A young woman
(D), pregnant with a foetus with anencephaly, a condition where
a major part of the brain is missing, was being refused the right
to travel to obtain an abortion in England. Back
74
Rossiter and Sexton (2001) The Other Irish Journey. MSI. Back
75
Fegan, E, Rebouche, R (2003) "Northern Ireland's Abortion
Law: The Morality of Silence and the Censure of Agency".
Feminist Legal Studies No 11 pp 221-254. Back
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