This article was first published by Solicitors Journal in July 2013, and is reproduced by kind permission. Click here to view the article.
The protection of maternal life bill passed by the Irish parliament last week may be progress in principle but in practice Ireland will still have one of the most restrictive abortion regimes, says Leslie Keegan.
The controversial Protection of Life During Pregnancy Bill was passed by the Irish parliament in the early hours of 11 July.
The proposals in the bill legislate for the 1992 X case (Attorney General v X  1 I.R. 1) which was taken by a 14-year-old rape victim who became pregnant, was suicidal and was refused permission to travel for an abortion. The judgment from Ireland’s Supreme Court was that if there was 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 then this could be carried out. The risk to life included the threat of suicide.
The bill is also intended to meet the requirements from the ECtHR decision in A, B and C v Ireland case (A, B and C v Ireland  ECHR 2032). The Strasbourg court determined that Ireland failed to respect Ms C’s private life contrary to article 8 of the convention. It found there was no accessible and effective procedure to enable C, who was in remission from cancer, to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law.
The current government is the first in Ireland to try to legislate and clearly set out the circumstances in which the termination of a pregnancy is lawful.
The General Scheme of the Protection of Life During Pregnancy Bill aims to legislate in this area within the parameters of article 40.3.3 of the Irish Constitution, which guarantees the right to life of the unborn with due regard to the equal right to life of the mother, as interpreted by the Supreme Court in the X case.
In the new bill, three consultants (an obstetrician and two psychiatrists) reviewing the case of a woman with suicidal thoughts while pregnant must all agree that a termination should proceed. The requirement for an obstetrician to certify suicidal ideation is incomprehensible. That one obstetrician could veto the decision of two psychiatrists makes no sense except restriction for the sake of it. There is provision for an appeal by the woman where the first three doctors do not approve termination of pregnancy. That final appeal would be to three other consultants. The appeal panel of three doctors must also be unanimous in approval for a termination to be granted under law.
The procedures mean that in the case of suicide threat, a woman could in effect have six doctors reviewing her application. At the heart of this is mistrust; that women who indicate suicidal intention because of their pregnancy are likely to be faking it. Certification for involuntary detention under the Mental Health Act only requires two doctors: a GP and a consultant psychiatrist.
The bill does not cover termination in cases of fatal foetal abnormalities, child sexual abuse or rape. The thinking was that if it covered such things it would certainly be referred to the Supreme Court by the president and, based on the precedent of the Supreme Court in the X case and having regard to article 40.3.3, it would be struck down as being unconstitutional.
A woman who cannot establish that her life – as opposed to her health – is in danger will still have to travel abroad for an abortion, and if she cannot travel abroad she will be denied this procedure or will have to risk a 14-year prison sentence if she has such a procedure in Ireland.
The bill means that medical staff looking after Savita Halappanavar last autumn in Galway University hospital would have had clear, legal guidelines when they considered her requests for an emergency termination. The 31-year-old died in the hospital from sepsis/blood poisoning and was refused an abortion. However, as only 0.1 per cent of the terminations carried out in Britain last year were for serious medical emergencies, which is more permissive than this bill allows, this means that about four of the 3,982 women who had to travel here for terminations might have been spared the trail of misery.
Ireland will continue to have one of the most restrictive abortion regimes globally, as abortion remains a crime, punishable by up to 14 years in prison. The bill provides no solution to women who are pregnant as a result of rape or incest; no solution in the case of fatal foetal abnormalities or where there is a risk to the health of the woman. However, despite its limitations, the Protection of Life During Pregnancy Bill is an honest attempt by the Irish government to grapple with the issue of abortion and introduce the first legislation of this kind in Ireland.
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