The Protection of Life during Pregnancy Bill 2013 (“the Bill”) was published on 13 June 2013 amidst much controversy. The Bill seeks to give statutory effect to the 1992 decision of the Supreme Court in Attorney General v X & Others (“the X Case”) and thereby clarify the law relating to termination of a pregnancy in Ireland.
Termination of a pregnancy and the Irish Constitution
The right to life of the unborn is enshrined in Article 40.3.3 of the Constitution and it operates to protect the fetus from the time of implantation in the womb until birth. However, there are exceptional circumstances in which this right to life can lawfully be infringed through a termination of the pregnancy. In the X Case, the Supreme Court set out a two pronged test stating that the life of the unborn can be terminated where there exists, as a matter of probability, (1) a real and substantial risk to the life, as opposed to the health, of the mother which need not be inevitable or immediate and (2) that the risk in question is avoidable only by terminating the pregnancy. A termination is only permissible where both limbs of the test are satisfied.
In 2010, Ireland was found to be in breach of the European Convention on Human Rights for failing to provide an effective and accessible method for women to determine if they are entitled to have a termination. The European Court of Human Rights essentially upheld the State’s autonomy in formulating policy but stated that any recognised grounds for a termination must be clarified through legislation.
Brief overview of the Bill
There are three scenarios envisaged by the Bill where termination of the pregnancy may be permissible. Those scenarios are: a medical emergency; physical illness; and suicide.
The Bill effectively prescribes an ascending scale of medical scrutiny in the certification of risk to the life of the mother in each case. In cases of medical emergency, the opinion of one registered medical practitioner is required to certify the procedure. In the context of physical illness, a committee consisting of two medical practitioners, one of whom must be an obstetrician or gynaecologist registered in the specialist division of the register of medical practitioners, must unanimously certify the risk in good faith. Where the risk to the life of the mother emanates from suicide, the unanimous opinion of a three party committee comprising one obstetrician and two psychiatrists must be obtained. All three practitioners must be registered in the specialist division of the register of medical practitioners.
The Bill provides for a right of appeal against a decision to refuse a termination in circumstances of physical illness and suicide. The proposed appeal committees are structurally identical to the committees reviewing the matters at first instance, although they are composed of different practitioners. An appeal may take up to 10 days, from the date the appeal is notified to the HSE, to be determined.
- What constitutes a ‘real and substantial risk’.
For a termination to be lawful, one or more medical practitioner(s) must certify that there is a real and substantial risk to the life of the mother and further that the risk in question can only be avoided by a termination. However, the Bill does not define what constitutes a ‘real and substantial risk’. While it is anticipated that regulating bodies will issue guidance for practitioners in this respect, such guidance will not eliminate entirely the scope for inconsistencies in patient evaluation, particularly in the context of suicide where it is very difficult to evaluate the level of risk associated with suicidal ideation.
- Appeals mechanism
The Bill prescribes a maximum period of 10 days during which an appeal of a decision to refuse a termination must be determined. Given the difficulties associated with evaluating the risk to the mother, particularly in the context of suicide, 10 days may be too long to have to wait when the woman’s life may well be at risk.
There appears to be no mechanism contained in the Bill to allow for an appeal, by representatives for the unborn child or any other interested party, against a decision taken to carry out a termination.
- Provisions relating to suicide
A particular feature of the Bill is the inclusion of an obstetrician or gynaecologist on the evaluating committee in circumstances of suicidal threats. The purpose of the committee in such circumstances is to evaluate and determine the extent of the risk of suicide. It is not clear what qualifications or insight a gynaecologist or obstetrician could possess that merits involvement in this evaluation. Moreover, given the requirement for unanimity, the obstetrician or gynaecologist will be in a position to veto a decision to terminate the pregnancy made by the psychiatrically qualified members of the committee.
- Conscientious objection
The Bill entitles medical practitioners, midwives and nursing staff to abstain from conducting or assisting with a lawful termination on moral or religious grounds. However, the objecting practitioner must ensure that a colleague takes over the care of the patient. Furthermore, the right to object does not apply where there is an emergency and this reflects current Medical Council and An Bord Altranais guidelines. The right of medical practitioners to object is not a novel inclusion in legislation of this sort as it is contained in the European Convention on Human Rights. Indeed the courts in Scotland have recently interpreted a similar provision quite liberally, upholding the right of two midwives to refuse to assist in any treatment of a patient undergoing a termination.
The Bill does not change the circumstances already provided for in the X Case at common law, in which a termination may be lawfully carried out. However, it does seek to provide a structured statutory framework within which clinicians and patients must operate. It remains to be seen what amendments, if any, will be made to the Bill before it is signed into law.