Action... 21 years late

In 1992, the Supreme Court ruled on the X case. After 21 years of inaction from six governments, the rules on abortion may finally change, writes Political Correspondent Mary Regan

SIX governments had, for more than two decades, ignored the Supreme Court ruling in the X case that an abortion is constitutional in Ireland where there was a real and substantial risk to the life to the mother, including from suicide.

In 2010, the European Court of Human Rights ruled that Ireland must give legal effect to the 1992 Supreme Court ruling. An expert group was established to look at the European ruling this issue at the start of 2012.

But it took the death of an Indian woman, Savita Halappanavar, in Galway last November to galvanise the political system into finally acting.

After hard-fought political compromises between Fine Gael and Labour on how the risk of suicide should be determined and how women can appeal a decision to refuse a termination, the draft outline, or heads of bill, was published early in May.

The final version of the legislation — expected to be passed by the Oireachtas before the end of July — was published early yesterday. There have been some minor changes from the heads of bill, mainly for practical reasons or to fix oversights, but the legislation remains largely the same.

Legislating for abortion in Ireland has been described by Catholic bishops as a “defining moment” for the country. The Government argues it is not changing the law already set down by the Supreme Court but merely providing legal clarity for the protection of health workers and pregnant women.

Here is an outline of what is provided for in the landmark legislation:

SECTION ONE: Title

An act to protect human life during pregnancy; to make provision for reviews at the instigation of a pregnant woman of certain medical opinions given in respect of pregnancy; to provide for an offence of intentional destruction of unborn human life.

SECTION TWO: Interpretations

“Unborn” refers to human life following implantation in the womb and ending on the complete emergence of the life from the body of the woman.

SECTION THREE: Appropriate institutions

There are 25 hospitals listed. These include the public obstetric units, of which there are 18 around the country, and a number of teaching hospitals (not included in the heads of bill but added to the final version).

SECTION FIVE: Repeal

This repeals the 1861 Offences Against the Person Act which carried life imprisonment for carrying out an abortion.

SECTION SEVEN: Risk of loss of life from physical illness

A termination is allowed when:

- Two medical experts have jointly certified in good faith that there is a real and substantial risk of a the pregnant woman’s life;

- That risk can only be averted by a termination.

It will always be a matter for the patient to decide. The termination will be carried out by an obstetrician at an “appropriate institution”.

SECTION EIGHT: Risk of loss of life from physical illness in an emergency

A termination can be carried out by a medical practitioner if he or she believes, in good faith, that there is an immediate risk of loss of the pregnant woman’s life and the procedure is immediately necessary to save the life of a woman.

Because of its emergency nature, this termination can be carried out in a location other than a public obstetric unit.

The termination can be carried out by a medical practitioner — rather than specifically by an obstetrician — who is required to certify the reasons for their action and notify the minister for health.

SECTION NINE: Risk of loss of life from self-destruction

A termination can be carried out at a hospital where an obstetrician or gynaecologist from that hospital, alongside two psychiatrists, unanimously agree that there is a real and substantial threat to the life of a pregnant woman by self-destruction.

Of the two psychiatrists, at least one shall be a psychiatrist who provides, or has provided, mental health services to women in respect of pregnancy, child-birth, or post-partum care. This is not contained in the heads of bill.

One of the psychiatrists involved will not have to work at a hospital, as stated in the heads of bill, but can instead be based in any centre approved by the HSE. This means, for example, that a child or adolescent psychiatrist working in the community can be involved in the process.

At least one of the three should — with the woman’s consent — consult with her GP to obtain information that may assist in their decision.

This changes from the previous heads of bill, which said that they should consult with the GP “where practicable” and does not mention the woman’s consent.

SECTION 10: Application for review

When a medical practitioner does not give an opinion, or is of the opinion that a termination is not lawful under the criteria outlined, he or she shall inform the woman in writing that she may make an application to review that decision.

The pregnant woman or someone acting on her behalf may make an application to the HSE for a review of the decision.

SECTION 11: Establishment of a review panel

The HSE will establish a review panel made up of at least 10 medical practitioners identified by itself, and following a request for nominations from:

- The Institute of Obstetricians and Gynaecologists;

- The College of Psychiatrists of Ireland;

- The Royal College of Surgeons;

- The Royal College of Physicians of Ireland.

SECTION 12: Establishment of review committees

As soon as possible, but no longer than three days after an appeal is made by a woman, a committee comprised of members of the review panel shall convene to review the decision.

In the case where the termination has been sought because of risk of life from illness, the committee must consist of an obstetrician and a medical practitioner of relevant speciality.

In the case where a termination is being sought because of the risk of suicide, the committee should be made up of an obstetrician and two psychiatrists.

SECTION 13: Review of the decision

The committee shall complete its review within seven days of being convened (which means 10 days after the appeal is made).

SECTION 14: Procedures or review committee:

The pregnant women is entitled to be heard by the review committee, which will make arrangements for what should happen. The review committee can direct medical practitioners to provide it with anything relevant to its decision, or to give evidence in person. Failure to do so can result in prosecution.

SECTION 15: Report by the HSE to the minister

Each year by Jun 30, the HSE must submit a report to the health minister on the operation of the review process.

The HSE must include information on:

- The total number of applications for review received by the HSE;

- The number of reviews carried out;

- The reason why the review was sought;

- The outcome of the review.

This process will allow the Government to monitor and ensure that the principles and requirements of the law are being upheld. For example, if it transpired all terminations that had taken place had gone through a review process, this would suggest that further guidance is needed for professional bodies.

All information that identifies, or could lead to the identification of the woman, shall be excluded from the report.

SECTION 17: Conscientious objection

A professional is not obliged to carry out a termination under the act if he or she have a conscientious objection.

However, in such circumstances, he or she has a duty to ensure another colleague takes over the care of the patient as per medical ethics.

The bill does not contain any reference to the right to conscientious objection from an institution, such as a hospital.

However, the heads of bill said that it does not apply to institutions because it is a human right.

SECTION 18: Travel and information

The act will not prevent the freedom of travel abroad for a termination or the freedom to access information on abortion, which the people inserted into the Constitution in 1992.

SECTION 20: Notifications

Within 28 days of a termination being carried out, the hospital must notify the health minister, without giving the name or address of the woman.

The following information shall be included:

- The medical practitioner who carried out the termination;

- The reason it was carried out under the act;

- The hospital at which it was carried out;

- The date.

Before Jun 30 each year, the health minister will prepare a report on the notifications received, and publish this in the manner he or she believes to be appropriate, without identifying individuals who received a termination.

SECTION 22: Destruction of unborn human life

It shall be an offence to intentionally destroy unborn human life. A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both.

This can also apply to a pregnant woman. While recognising that criminalising a pregnant woman is sensitive and difficult, this provision reflects the State’s constitutional obligation.

A prosecution can only be brought by the DPP to ensure that mischievous cases cannot be brought before the courts.

For the avoidance of doubt, it is declared that this offence does not apply to medical practitioners who carry out a termination under sections 7, 8, or 9.

SECTION 23: Offence by body corporate

This provides for the crime of carrying out an unlawful abortion to apply to companies. In addition to the person who carries out the procedure, the offence applies to the directors of a company, members of its committee of management or other controlling body of the company concerned, or the manager secretary or other officer of the company concerned.