The Eighth Amendment and Disability

Source – Irish Times, Letters 22nd January 2018

Sir, – We read with dismay William Binchy’s suggestion that if abortion is legalised in line with the recommendations of the Joint Oireachtas Committee on the Eighth Amendment, legislation will be abused to prevent the birth of children with disabilities (“Oireachtas committee has opened the door to abortion for disability”, Opinion & Analysis, January 6th). More recently, Fianna Fáil’s Justice spokesman made a similar claim. There is no evidence to support their position.

One example is that basic prenatal screening is offered in most maternity hospitals at 13 weeks, and later in some rural hospitals. Nuchal translucency tests and amniocentesis are currently provided at 14 to 15 weeks. Fetal anomaly scans take place after 19 weeks. A non-invasive (Harmony) test can be performed at 10 weeks, if a woman knows to ask for it, but is currently only available privately. Results may take weeks to process, and should be confirmed with a later amniocentisis. It is therefore highly unlikely that women will seek to terminate pregnancies for reasons of disability within the first 12 weeks.

Moreover, concerns about pregnancy terminations on grounds of fetal impairment and anticipated disabilities are better addressed through ensuring that women and girls receive non-directive counselling following prenatal screening and access to pregnancy-related information that enables them to make informed choices and to prepare for caring for and supporting a child with a disability, as well as social and financial support for families raising children with disabilities.

Unlike the Citizens’ Assembly, the Joint Oireachtas Committee did not recommend a “non-fatal disability ground” for abortion in any post-repeal legislation. In 2016, 141 women giving Irish addresses terminated pregnancies in the UK under the “serious disability” ground of the Abortion Act, 1967. Under the Joint Oireachtas Committee’s recommendations, many women in that position must continue to travel to access services.

With this in mind and based on the recommendation of the UN Committee on the Rights of Persons with Disabilities (UNCRPD), Ireland should avoid enshrining into law a specific “disability exemption” because it tends to suggest that the law devalues the lives of people with disabilities. However, the UNCRPD does not allow the promotion of disability rights at the expense of women’s human rights and reproductive freedom. Rather, these should be pursued in tandem. This can be achieved through not only ensuring women have access to abortion, but that they have access to pregnancy-related information, including prenatal testing. Following receipt of testing results, women should receive accurate, non-directive counselling that works against disability-based stigma and discrimination, and informs women about the means of and support for caring for a child with a disability, as referenced earlier.

We are concerned that while the Citizens’ Assembly and the Joint Oireachtas Committee heard significant expert and advocacy submissions on fatal foetal anomalies, they did not hear equivalent evidence on serious non-fatal disability. A discursive vacuum has emerged as a result. The experiences of women who have terminated, or continued, pregnancies after diagnoses of severe disability have not been discussed. Disabled citizens are spoken of only as children and disabled women’s reproductive rights are not discussed. Disability must not be used as a reason to stigmatise difficult abortion decisions and further restrict the limited proposals of the Citizens’ Assembly and the Joint Oireachtas Committee. – Yours, etc,

Dr EILIONÓIR FLYNN, Centre for Disability Law & Policy, NUI Galway

MAIRÉAD ENRIGHT, Birmingham School of Law, University of Birmingham

Prof DONNCHA O’CONNELL, School of Law, NUI Galway

Prof BRIAN HUGHES, School of Psychology, NUI Galway

SUZY BYRNE, Disability Rights Activist, Dublin


Dr RUTH FLETCHER, School of Law, Queen Mary University of London

GAYE EDWARDS, Parent and Campaigner

ROISIN DERMODY, Disability Rights Advocate

JAMES RICKARD, Diversity and Inclusion Manager, Rehab

Dr SINÉAD RING, Kent Law School, University of Kent

Dr SHIVAUN QUINLIVAN, School of Law, NUI Galway

Dr JOAN McCARTHY, Lecturer, Healthcare Ethics, School of Nursing, University College Cork

Dr MARY McAULIFFE, Gender Studies, UCD

Dr SHEELAGH McGUINNESS, Bristol Law School, University of Bristol

Dr SHANE DARCY, Irish Centre for Human Rights, NUI Galway



JENNIFER SCHWEPPE, School of Law, University of Limerick

Dr CLODAGH MURRAY, School of Psychology, NUI Galway

EMMA BURNS, Centre for Disability Law & Policy, NUI Galway

Dr MARIA LAURA SERRA, Centre for Disability Law & Policy, NUI Galway

JESS MANNION, School of Nursing and Midwifery, Trinity College Dublin

CHARLOTTE MAY-SIMERA, Centre for Disability Law & Policy, NUI Galway

FIONN CROMBIE ANGUS, Disability Rights Campaigner

JONATHAN ANGUS, Disability Rights Campaigner

Dr SHEILA GARRITY, Unesco Child & Family Research Centre, NUI Galway

DONNA McNAMARA, School of Law and Government, Dublin City University

Dr DELIA FERRI, Department of Law, Maynooth University

CLÍONA DE BHAILÍS, Centre for Disability Law and Policy, NUI Galway

GEARÓIDÍN McEVOY, School of Law and Government, Dublin City University

Dr CLAIRE EDWARDS, School of Applied Social Studies, University College Cork

ALYSON McGRATH, Parent and Advocate

PAT FLANAGAN, Lecturer, Adapted Physical Activity, IT Tralee

ANN LYONS, Community Knowledge Initiative, NUI Galway

EMILY BRENNAN, Irish Centre for Human Rights, NUI Galway