by Martha Wilson November-12-2014 in Healthcare Law
Since the 1992 case of Attorney General v X (the X case) termination of pregnancy in Ireland is lawful if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that such risk could only be avoided by termination. Ireland has been found to be in breach of the European Convention of Human Rights, however, owing to its failure to provide a procedure to enable women to establish whether they qualify for a lawful termination.
The death of Savita Halappanavar in October 2012, as a result of sepsis caused by a miscarriage she suffered at around 18 weeks gestation, starkly illustrated the consequences of the uncertainty facing those providing maternal health services as to when terminations can legally be carried out in Ireland.
The Savita Halappanavar case prompted a public debate that led to the drawing up of the Protection of Life During Pregnancy Bill, which became law on 1 January 2014. The Act codifies the existing legal position and has not created any new rights to perform terminations. It does, however, provide for the first time under Irish law the procedures that must be followed in order for a termination to be lawful.
The Act restates the prohibition on abortion in Ireland and regulates access to lawful termination of pregnancy. Section 22 contains a clear criminal prohibition of the intentional destruction of unborn human life; sections 7 to 9 set out the exception to that prohibition, i.e. where there is a real and substantial risk to the life of the woman which can only be averted by termination of pregnancy.
The exception to the prohibition on abortion applies only in the following three circumstances:
1. Where there is a real and substantial risk to the life of a woman arising from a physical illness (section 7 of the Act).
2. Where there is an immediate risk to the life of a woman arising from a physical illness (section 8 of the Act); or
3. Where there is a real and substantial risk to the life of a woman arising from suicide intent (section 9 of the Act).
The Act sets out the detailed procedures that must be followed in order for a termination in these circumstances to be lawful. The procedures include: assessment of the woman by a panel of specialists; joint certification by the panel of specialists that the relevant clinical criteria are met; a review process for women dissatisfied with the specialists’ decision; limitations on where the termination may be carried out; and notification of terminations to the Minister for Health.
The Department of Health has published very useful guidelines entitled “Implementation of the Protection of Life During Pregnancy Act 2013 – Guidance Document for Health Professionals” which contains key information for healthcare professionals including very useful referral pathways, checklists and examples of the forms that must be used. We recommend that all healthcare professional affected by the 2013 Act should be familiar with this document.
The Act is useful insofar as it sets out a defined pathway for assessing pregnant women who may require terminations, but the procedures are not streamlined and there is little clinical guidance for doctors who are called upon to carry out assessments under the 2013 Act. Given the grave consequences of a decision to certify (or not) a woman as satisfying the tests for terminations under the Act, we recommend that doctors ensure that: they are qualified to participate in the assessments; they properly document their assessments and the conclusions drawn; and they act without delay when faced with a patient who is potentially in need of a termination under the Act.
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About the Author
Martha Wilson
Martha is a partner in the Healthcare team at Hayes solicitors. She works primarily in healthcare litigation, defending personal injuries claims taken against the Health Service Executive as well as against individual medical and dental practitioners.
In addition to contentious matters, Martha also advises on healthcare care related non-claims issues and represents doctors and dentists in relation to complaints to the Medical Council and Dental Council.