A pregnant woman attends her 20-week scan excited and intrigued: will the baby be a boy or a girl? Will the baby be measuring small or large? The atmosphere in the room is tense, and then suddenly the sonographer turns silent, concentrating hard on the screen as she presses the ultrasound wand into the pregnant woman’s belly.
She pauses and phones a colleague. After they examine the grainy black and white imagery together, they turn to the pregnant woman and explain that there is a problem with the baby’s brain, and further tests will be required.
Over the next week, the extent of the problem is revealed to be devastating. The diagnosis is complicated and rare. The baby is likely to die shortly after birth.
The current law is so restrictive that conditions that would have been considered fatal before [2018] are now not 'fatal enough'
The woman makes the decision to end her pregnancy: she can't bear the thought of carrying the baby for 20 more weeks, only for the baby to live only a few hours or days in pain. But the woman is then told that a termination won't be possible in Ireland and that if she wants to end the pregnancy, she'll have to travel to the UK, becoming another addition to that sad statistic.
Stories like this are not unheard of – even in 2021, explains Claire Cullen Delsol of Terminations for Medical Reason Ireland (TFMR), a campaigning group that supports parents and families following diagnosis of a serious foetal anomaly: “The hardest thing we’ve encountered is that the people who have to travel for a termination aren’t expecting it. They’re saying, ‘We voted for this, why can’t we have an abortion here?’ Then they’re being told that ‘your baby’s specific condition isn’t covered or your baby’s condition isn’t fatal enough’.”
Three years ago, 66.4 per cent of Irish voters opted to repeal the Eighth Amendment and allow for safe, legal and free abortion, a result that then taoiseach Leo Varadkar hailed as "resounding". But people are still being forced to travel to access terminations. In 2019, the year that abortion services became available in Ireland, 375 Irish women travelled to the UK for an abortion: more than one person each day made the journey that voters had been told would be a thing of a past.
Even during the Covid-19 crisis, people have continued to board planes and ferries, negotiating travel restrictions, carrying letters from British abortion clinics and Irish maternity hospitals that stress the urgency of their trip.
“[At TFMR] we have come across at least 30 people who have been forced to travel during the pandemic,” says Cullen Delsol. “They have to show that letter to strangers, who scrutinise it, asking if their reason for travelling is really essential. There have been women turned away who have had to reschedule and turn back. The fear and the shame and the stigma and the grief and the loss is just magnified 10 times over by going through those kinds of horrible circumstances, on their way to lose their baby.”
Many more people will have travelled from Ireland to access terminations for other reasons: because they missed the 12-week cut-off period or because they do not have a PPSN, for example.
Risk to life
Abortion in Ireland was legalised under the Health (Regulation of Termination of Pregnancy) Act 2018 and became available in January 2019. Terminations are available on request for pregnancies less than 12 weeks of gestation and until viability if there are significant risks to maternal health or life (including in an emergency), as well as at any stage due to a fatal foetal anomaly.
In 2019, 6,666 people had a termination in Ireland. This figure is perhaps slightly higher than might have been expected: just under 3,000 people travelled to the UK the previous year. Pro-life groups seized on the number when the statistics were released last summer, with Aontú leader Peadar Tóibín claiming it showed a “massive spike”. But pro-choice campaigners pointed out that the previous figures were likely to have been an underestimation. People might not have given an Irish address when accessing abortion services abroad and people who bought abortion pills online would not have been counted in any official statistics.
The vast majority of abortions carried out in the Republic in 2019 were early medical abortions (EMA), with more than 98 per cent of abortions carried out before 12 weeks gestation. Twenty-one abortions were carried out on the grounds of “risk to life or health”; three were carried out because of “risk to life or health in an emergency”; and 100 were carried out due to a “condition likely to lead to death of foetus”.
For thousands of people, the existing abortion legislation has worked well: using the HSE’s My Options website and freephone line, they have been able to access free, safe and legal abortion services in their own counties or without having to travel long distances. The issue, which for the months before the Repeal referendum dominated Irish life, has disappeared from the front pages.
Now though as a review into the State's abortion legislation by the Department of Health gets underway, abortion is once again making headlines. This is partly owing to moves from pro-life groups: earlier this month a group of 11 independent pro-life TDs, led by Carol Nolan, launched a Bill that proposes foetuses be given pain relief during late-term abortions. But also, many pro-choice campaigners – who were so instrumental in securing that resounding Yes vote – say that the existing legislation has serious limitations, which especially impact those in the most difficult and painful of circumstances.
In Ireland, abortion is usually carried out in the community before or at nine weeks with GPs and family planning clinics administering EMAs. An EMA involves taking two medicines, mifepristone and misoprostol, 24-48 hours apart. The first medication ends the pregnancy while the second medication makes the womb contract, causing cramping, bleeding and loss of the pregnancy similar to a miscarriage. After nine weeks until 11 weeks plus 6 days gestation, medical or surgical abortions are carried out in hospitals with maternity units.
Once the 12-week limit passes, the legislation dictates that someone who wishes to terminate a pregnancy with a serious foetal anomaly can only do so if two doctors agree that the diagnosis means the foetus is likely to die before or within 28 days of birth.
TMFR's 'number one' request of the Department of Health is the decriminalisation of abortion for medical practitioners
There are three diagnoses where doctors can generally agree on this and a termination is always offered – Edwards syndrome, Patau syndrome and anencephaly – but when faced with a rarer or more complicated diagnosis, it can be impossible to say with any degree of legal certainty how long a baby will survive for. Given that doctors can still be criminalised for providing abortions – with a maximum sentence of 14 years in prison – most will take a very cautious approach, sometimes urging people to travel to the UK to access a termination rather than providing it here in Ireland.
“The current law is so restrictive that conditions that would have been considered fatal before [2018] are now not ‘fatal enough’,” says Cullen Delsol. “There was a baby with a really complicated set of catastrophic symptoms, but because it hadn’t been seen before, the legal basis for the finding that the baby wasn’t compatible with life just didn’t exist. The doctor could tell [that it was a fatal foetal anomaly] through their own understanding of medicine, but they were afraid that they weren’t able to prove it – because there was no precedent for this condition. And so they felt that they couldn’t offer a termination here.”
TMFR’s “number one” request of the Department of Health is the decriminalisation of abortion for medical practitioners. “Secondly,” Delsol says, “allowing a woman to make the decision about whether or not she’s going to continue with pregnancy after a diagnosis of a foetal anomaly is essential. Women need to be able to access terminations here; we cannot keep exporting vulnerable women.”
Helen Stonehouse, co-convenor of the Abortion Rights Campaign (ARC), says that the current law “falls short in so many ways”.
“Ireland’s on-request abortion access is strictly 12 weeks and zero days after the first day of your last period,” she explains. “So if you discover you’re pregnant too late, you can’t get an abortion here unless you meet very strict grounds. Typically, people access abortion after 12 weeks because they are in some way disadvantaged: they didn’t know they were pregnant, which might be an educational issue; it might be younger people who have irregular cycles; it might be people who don’t have good access to healthcare. You’re looking at people who are already disadvantaged and then you’re just making their life harder.”
It can also be difficult to access abortion services depending on where you live, she says; in Sligo for example, there are no GPs offering abortion services. According to a recent report sponsored by the Department of Sexual and Reproductive Health and Research at the World Health Organisation (WHO), "there is an uneven or incomplete geographic coverage of abortion services both in the community and in hospitals, particularly in rural regions and in the west and north of Ireland".
The HSE confirmed to The Irish Times that three years after the 2018 abortion referendum, almost half of hospitals with maternity units still do not offer full abortion services. “Ten out of 19 maternity units are currently providing elective abortion care for women under 12 weeks,” a spokeswoman says, adding that all maternity units provide care in rare cases “where there is a risk to their life or health” and in cases of fatal foetal abnormality.
When asked if there is a plan to ensure that all hospitals with maternity units can provide full abortion services, the spokeswoman said: “The HSE is working towards increasing the availability of abortion care for women under 12 weeks.”
The WHO report maintains that “in the providing hospitals, abortion services have been set up by a handful of ‘champion’ doctors, nurses, and midwives” but that “in some hospitals it is clear that the leadership expected from the management is lacking”.
In some hospitals where staff members are conscientious objectors, it can present staffing issues, limiting the amount of terminations that can be carried out.
The existing legislation mandates a three-day wait for everyone who wants an abortion for whatever reason in Ireland. So if a person sees a GP on a Monday, the earliest they can have an abortion is Thursday. In cases where finding a local GP or hospital to administer the abortion has been difficult or where a person has not realised that they were pregnant until 10 or 11 weeks, this can be a further barrier to access, pushing someone over the 12-week limit.
“We also know cases of people who have had an early medical abortion, which has failed, and after a medical abortion, you have to wait two weeks to take a pregnancy test and obviously at that point you could easily have gone over 12 weeks,” says Stonehouse. “Then those people have had to travel to England to access an abortion.”
During the Covid crisis, with face-to-face visits to the doctor discouraged, telemedicine abortion consultations have been permitted, with GPs carrying out consultations over the phone or on video calls and sending the prescription for abortion medication directly to a pharmacy. Pro-choice campaigners such as Stonehouse believe that this model should be retained after the crisis as it removes barriers to access. But it’s not clear whether it will be, with the Department of Health saying that, “The arrangement enabling remote consultation will be reviewed once the public health emergency is declared over.”
One clear argument for retaining telemedicine consultations would be that it would mean that people accessing abortions would not have to pass protesters as they approach GPs or hospitals, which is a significant problem at some service providers.
At University Maternity Hospital Limerick, there are protestors outside most days. “They’re walking up and down in groups of two, four, six, eight, 12,” says Karen Sugrue of the Limerick-based group Together for Safety. “They’re praying and holding very large religious iconography, like large rosary beads.” People attending the hospital – for whatever reason – often find the protests “intimidating and distressing”, according to Sugrue.
I think a lot of people who told their stories about serious foetal anomalies during the Repeal campaign feel very betrayed
In 2018, then minister for health Simon Harris pledged to legislate for "safe access zones" around maternity units, GP surgeries and family planning clinics. Three years on, there is no legislation for safe access zones because the Department of Health says "a number of legal issues were identified which necessitated further consideration".
It is no longer clear whether Harris’s promise of safe access zones will be realised – this year or any year. “Given the large volume of priority legislative work which has arisen within the Department of Health during the last year as part of the response to Covid-19, as well as the additional workload across Government, it has been necessary to place work on several areas on hold due to the diversion of resources,” a spokesman told The Irish Times.
Personal testimony
Whatever the causes, it is clear that the mandate given by the 2018 referendum has yet to be fully carried out. In the lead-up to the abortion referendum, stories from people who had been forced to travel to access a termination were key to the pro-choice campaign.
The stories were distressing and seemingly very effective – in one poll, more than 60 per cent of people said that hearing personal testimony was the single biggest factor in deciding how they would vote in the referendum. In 2021, people are generally less willing to tell their stories. Cullen Delsol, Stonehouse and Sugrue have shared anonymised accounts with journalists but most campaigners are now unwilling to encourage those forced to travel to speak publicly.
“I think a lot of people who told their stories about serious foetal anomalies during the Repeal campaign feel very betrayed,” says Cullen Delsol. “They feel that the legislation wasn’t designed for the people who were probably most influential in getting it across the line.”
Stonehouse says it is time now to move the conversation on, and we should no longer rely on women publicly sharing their private pain.
“It’s a really terrible indictment of this country that people – most frequently women – have to share personal, private pain in order to make structural change happen,” she says. “People should not have to constantly tell the worst stories about the worst things that have happened to them in order to be treated with humanity.”
Speaking from Dublin Castle on May 26th, 2018, Tánaiste, and then taoiseach, Leo Varadkar said it was “a day when we say no more”: “No more to doctors telling their patients that there’s no more can be done for them in their own country, no more lonely journeys across the Irish Sea, no more stigma as the veil of secrecy is lifted and no more isolation as the burden of shame is gone.”
While Ireland has introduced a progressive policy of free, safe, legal abortion, all of Harris’s and Varadkar’s 2018 pledges have not been delivered, meaning that in 2021 people are still forced to contend with stigma and shame as they make lonely journeys.
That journey to England, for so long the most resonant symbol of a long-standing injustice, still, remarkably, persists. It remains to be seen whether Minister for Health Stephen Donnelly’s review of the abortion legislation will allow Ireland to make it a thing of the past.
Abortion in numbers
66.4 per cent
Voters that opted to repeal the Eighth Amendment and allow for safe, legal and free abortion
6,666
Number of terminations carried out under new legislation in 2019
375
Number of women who gave a Republic of Ireland address when accessing abortion services in the UK in 2019
9
Number of hospitals with maternity units that do not provide abortion services (out of 19 in the State)
0
Number of GPs in Co Sligo offering in-community abortion services
14
Number of years in prison a doctor can be sentenced to if found guilty of providing an abortion outside the provisions of the 2018 Act
3
The mandated number of days a person must wait between seeing a GP and accessing abortion services
