Unless substantially amended, the Government’s draft abortion legislation will impose undue obstacles and fail to give sufficient legal certainty to a woman when her life is at risk during pregnancy.
Abortion in Ireland is lawful in very limited circumstances. However, the word "lawful" is not to be found anywhere in the heads of the Protection of Life during Pregnancy Bill. While the heads of Bill contain the expression that, in certain circumstances, a termination "shall not be an offence", it offers no clarity when this shall be, precisely, the case.
The criteria of the Supreme Court judgment in the X case are partially incorporated in the heads of the Bill: there is reference to "real and substantial risk" to the life of a woman. However, the Supreme Court unambiguously stated that medical practitioners do not have to believe that the risk to the woman's life is inevitable or immediate, as this approach insufficiently vindicates the pregnant woman's right to life. The Government's proposition ignores this point.
The X case needs to be fully reflected in the legislation so that no woman will be refused treatment because the threat to life is not considered imminent.
In the 2010 landmark ruling by the European Court of Human Rights (ECHR) in respect of Ireland’s abortion law, the court found a violation in relation to one of the applicants – Ms C – because she was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued with the pregnancy.
Duty of care
The Government's proposals fail to take account of this issue because no provision is made for duty of care on the healthcare system. They neglect to set out clear referral pathways for women who are worried about the impact of pregnancy on their health and life. Indeed, unless the proposals are amended, Ms C would be in no better a position, and the Government would be exposed to future challenge through the ECHR.
The lack of adequate safeguards for women against refusal of care is very worrying. Conscientious objection has been used in many countries to frustrate, delay or refuse access to lawful abortion. While there are some necessary limits on refusal to care, there is not sufficient duty placed on a doctor who refuses to perform a lawful termination to save a woman’s life to ensure that the procedure is carried out by another suitably qualified medic.
Delays in accessing services can have significant impacts on health and wellbeing. Delays, or the lack of a duty of care, could make the difference between a minor procedure and a more invasive procedure which involves more risks for a woman whose health is already compromised.
The Government’s proposals require that a general practitioner be consulted by the doctors, who are empowered to certify that a risk to life exists. This, in effect, involves a third doctor in decision-making in relation to physical risk to life, and a fourth in the case of risk to life by suicide. What is completely ignored is a requirement for a woman’s consent. This surely is a violation of her rights and, furthermore, there is no precedent for such practice elsewhere in Irish law or medical practice.
ECHR scrutiny
The ECHR will not only be examining the proposed legislation in terms of provisions that might impose excessive delay, but also the procedures regarding risk to life which arises because of threat of suicide. The decision-making procedure regarding "risk of loss of life through self-destruction" are exceptionally onerous, requiring two psychiatrists and an obstetrician.
The Government’s Expert Group on Abortion’s report viewed the diagnosis of suicide intent as a routine process for psychiatrists. There is no justification for requiring a second psychiatrist when this does not occur when a pregnancy is not involved. Or for involving an obstetrician in making a decision about mental health.
The ECHR requires a framework to resolve differences of opinion between doctors or between a woman and her doctors. The heads of Bill, therefore, include an appeal procedure. However, the appeal procedure of up to 14 days involves unwarranted delay and could prevent women’s access to the most appropriate and timely treatment.
The ECHR considered that the existence of criminal penalties for having or assisting in an unlawful abortion constitutes a significant "chilling factor" for both women and their doctors. As it moves to examine the draft proposals on abortion, the Joint Oireachtas Committee on Health and Children must question whether the retention of severe criminal penalties is consistent with the State's obligations under the European Convention on Human Rights, and international human rights law generally.
The inclusion of the very heavy maximum penalty of 14 years in prison will not only maintain, but substantially reinforce, the chilling effect.
Definition of unborn
The committee must reconsider the definition in the heads of Bill of "unborn" as "following implantation until such time as it has completely proceeded in a living state from the body of the woman". The State argued before the ECHR in
D v Ireland
in 2006 that where there is no prospect of life outside the womb, a foetus may not be considered "unborn" for the purposes of article 40.3.3.
The new definition would seem to give equal protection to a non-viable foetus and to a woman, and thereby limit the scope of the Government to introduce measures to allow terminations in cases of severe foetal abnormality incompatible with life.
The committee – and indeed the wider Oireachtas – must ensure that the legislation when finally enacted is accessible, practical and effective.
Women whose lives are at risk during pregnancy require and deserve nothing less.
Niall Behan is chief executive of the Irish Family Planning Association