Submission to the Oireachtas Joint Committee on Health and Children in respect of its consideration of the General Scheme of the Protection of Life during Pregnancy Bill 2013 May 2013
Introduction
The Abortion Rights Campaign (ARC) is an alliance of pro-choice groups and individuals in Ireland and Northern Ireland who believe that women’s lives matter, and women’s health matters. Like other personal healthcare decisions, choosing whether to continue with a pregnancy is a decision that should be made between a woman and her doctor. The Abortion Rights Campaign aims to dismantle the many barriers to women’s full reproductive rights so that women and their families can make their own decisions, for themselves.
In February 2013, the ARC launched its first major campaign ‘Greetings from Ireland: Postcards to your TD’. As part of the campaign, members of the public will send 30,000 postcards to TDs between February and July 2013 reminding them to legislate for X to save women’s lives.
The ARC has also engaged in media work on this issue and the organisation of public events to promote abortion rights in Ireland. It is a volunteer-run campaign, supported by small fundraising events and online donations from members of the public.
Executive Summary
The Abortion Rights Campaign (ARC) accepts that the publication of the Heads of Bill for the Protection of Life during Pregnancy Bill 2013 marks a step toward securing access to safe and legal abortion in Ireland. However, ARC is deeply disappointed by several sections of the draft legislation and believes that certain elements of the Bill will still prevent women from accessing their constitutional right. In particular, the campaign is extremely alarmed by the inclusion of the assessment of four doctors (one obstetrician/gynaecologist, two psychiatrists and a general practitioner) for termination when a woman is at risk of suicide, and Head 19, which replaces the relevant sections of the Offences against the Person Act 1861. While X case legislation is a step in the right direction, what remains is the need to repeal the 8th Amendment, to provide for the needs of rape and incest survivors, women carrying unviable foetuses, and others who slip through the cracks of this legislation who will still have to travel to access health care. The ARC will continue to campaign for access to free, safe, and legal abortion in Ireland.
The Abortion Rights Campaign recommends:
Title:
• The Bill should be re-titled the ‘Protection of Maternal Life during Pregnancy Bill 2013’
Head 1:
• All references to ‘unborn’ should be replaced with ‘embryo or foetus’ in order to bring legal clarity for medical practitioners.
• The legislation should clarify that the ‘real and substantial risk’ to a woman’s life does not need to be inevitable or immediate.
Head 2:
• Reduce from two to one the number of medical practitioners required to certify a termination where there is a risk of loss of life from physical illness, not being a risk of self-destruction, but provide that the medical practitioner may, as an option, consult one colleague.
• Remove the mandatory nature of the requirement for the medical practitioner to consult with the pregnant woman’s general practitioner and place in accompanying guidelines as an option for medical practitioners. Availing of this option should not add to delays in treatment. Importantly, it must be stated that a woman’s consent is required before a medical practitioner can contact her general practitioner.
Head 3:
• This section should be extended to include risk of loss of life from self-destruction in a medical emergency.
Head 4:
• Replace the requirement of three medical practitioners to unanimously agree on a suicidal woman’s right to a termination with a provision stating that this is a decision between a woman and her doctor, and where a second opinion is needed no more than two medical practitioners (one of which should be a psychiatrist) should be involved in the assessment.
• Expand the qualifying criteria for psychiatrists to include Child Psychiatrists in order to accommodate minors.
• Remove the mandatory nature of the requirement for the medical practitioner to consult with the pregnant woman’s general practitioner and place in accompanying guidelines as an option for medical practitioners. Availing of this option should not add to delays in treatment. Importantly, it must be stated that a woman’s consent is required before a medical practitioner can contact her general practitioner.
Head 12:
• Include a provision which states that, regardless of any conscientious objection, medical practitioners have a duty to provide treatment to a pregnant woman in emergency situations where no other medical practitioner is available.
Head 19:
• Remove all criminal sanctions against women who have had, or intend to have, abortions.
Head 20:
• The Protection of Maternal Life during Pregnancy Act 2013 should come into force in its entirety on enactment.
Main Body of the Submission
Title
The current title of the Bill does not reflect its purpose, which is the protection of women’s lives during pregnancy. The legislation should be re-titled to reflect this.
Recommendation:
• The Bill should be re-titled the ‘Protection of Maternal Life during Pregnancy Bill 2013’
Head 1: Interpretation
Given that the aim of this legislation is, as stated by An Taoiseach Enda Kenny, to provide clarity and certainty for both pregnant women and medical practitioners, the definition of ‘unborn’ should be deleted as it is not a recognised medical term and therefore does not provide clarity for medical practitioners. It should be replaced by ‘embryo or foetus’.
The legislation should also highlight that a ‘real and substantial risk’ to a woman’s life need not be inevitable or immediate in order to reassure medical practitioners that they have the flexibility to determine whether, as a matter of probability, there is a real and substantial risk to a woman’s life. This is acknowledged in the Explanatory Notes of the Scheme but it is unclear whether it will be clarified in the legislation itself.
Recommendation:
• All references to ‘unborn’ should be replaced with ‘embryo or foetus’ in order to bring legal clarity for medical practitioners.
• The legislation should clarify that the ‘real and substantial risk’ to a woman’s life does not need to be inevitable or immediate.
Head 2: Risk of loss of life from physical illness
The Abortion Rights Campaign preference is that the legislation should reduce from two to one the number of medical practitioners required to certify a termination where there is a risk of loss of life from physical illness, not being a risk of self-destruction. However, ARC acknowledges that, as a matter of good practice, doctors often choose to consult and work in teams and this should remain an option to medical practitioners under the legislation.
The Executive must ensure there are sufficient resources in place to accommodate this. Due to the time-sensitive nature of these matters, a pregnant woman must be able to determine whether or not she is entitled to a termination in an efficient manner. Unnecessary delays could make the difference between a minor medical procedure and a more invasive one.
The mandatory nature of the requirement for the medical practitioner to consult with a pregnant woman’s general practitioner should be removed from the legislation and placed in accompanying guidelines as an option for medical practitioners. Availing of this option should not add to delays in treatment. Importantly, it must be stated that a woman’s consent is required before a medical practitioner can contact her general practitioner.
Recommendation:
• Reduce from two to one the number of medical practitioners required to certify a termination where there is a risk of loss of life from physical illness, not being a risk of self-destruction, but provide that the medical practitioner may, as an option, consult one colleague.
• Remove the mandatory nature of the requirement for the medical practitioner to consult with the pregnant woman’s general practitioner and place in accompanying guidelines as an option for medical practitioners. Availing of this option should not add to delays in treatment. Importantly, it must be stated that a woman’s consent is required before a medical practitioner can contact her general practitioner.
Head 3: Risk of loss of life from physical illness in an emergency situation
The Abortion Rights Campaign welcomes this section which states that the reasonable opinion of one medical practitioner is sufficient to certify that a termination is immediately necessary to save the life of a pregnant woman. It is also welcome that such a termination may be carried out in a location other than a public obstetric unit. However, the Abortion Rights Campaign is of the opinion that this provision must be extended to include psychiatric emergencies as there is no medical basis for the distinction this legislation creates between a medical emergency and a psychiatric emergency. Again, this is necessary in order to bring legal clarity for medical practitioners.
Recommendation:
• This section should be extended to include risk of loss of life from self destruction in a medical emergency
Head 4: Risk of loss of life from self-destruction
The requirement to have an already vulnerable woman assessed by at least three medical practitioners, and potentially seven, is cruel, impracticable, and arguably fails to satisfy the European Court of Human Rights judgment in A, B, and C v Ireland which states thatIreland has a legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether or not they are entitled to a lawful abortion. The requirement of three medical practitioners (one obstetrician, two psychiatrists) to unanimously agree on a woman’s right to a termination should be replaced by a provision stating that this is a decision between a woman and her doctor, and where a second opinion is needed no more than two medical practitioners should be involved in the assessment.
This second opinion should come from a psychiatrist as an obstetrician/gynaecologist is not qualified to assess suicide risk. Furthermore, the qualifying criteria for psychiatrists outlined in the Bill should be extended to include Child Psychiatrists who deal with children up to the age of 18.
Combined with Head 8, the requirements outlined in Head 4 are so onerous on suicidal pregnant women that it is likely that a woman with means will travel abroad for a termination, rather than facing the torturous process of being scrutinised by up to seven separate doctors to prove the real risk of ending her life if she is denied access to a termination. As a result, those disproportionately affected by this will be vulnerable women who are unable to travel such as migrants, asylum-seekers, minors, women living in poverty, women who are too ill to travel, and women under the control of abusive partners.
As with risk of loss of life from physical illness, the Executive must ensure there are sufficient resources in place to accommodate this. Due to the time-sensitive nature of these matters, a pregnant woman must be able to determine whether or not she is entitled to a termination in an efficient manner. Unnecessary delays could make the difference between a minor medical procedure and a more invasive one.
The mandatory nature of the requirement for the medical practitioner to consult with a pregnant woman’s general practitioner should be removed from the legislation and placed in accompanying guidelines as an option for medical practitioners. Availing of this option should not add to delays in treatment. Importantly, it must be stated that a woman’s consent is required before a medical practitioner can contact her general practitioner.
Recommendation:
• Replace the requirement of three medical practitioners to unanimously agree on a suicidal woman’s right to a termination with a provision stating that this is a decision between a woman and her doctor, and where a second opinion is needed no more than two medical practitioners (one of which should be a psychiatrist) should be involved in the assessment.
• Expand the qualifying criteria for psychiatrists to include Child Psychiatrists in order to accommodate minors.
• Remove the mandatory nature of the requirement for the medical practitioner to consult with the pregnant woman’s general practitioner and place in accompanying guidelines as an option for medical practitioners. Availing of this option should not add to delays in treatment. Importantly, it must be stated that a woman’s consent is required before a medical practitioner can contact her general practitioner.
Head 12: Conscientious Objection
This section should include a provision stating that, regardless of any conscientious objection, medical practitioners have a duty to provide treatment to pregnant women in emergency situations where there is no other medical practitioner available. This is acknowledged in the Explanatory Notes accompanying Head 12, but not specifically referred to in the outline of the Section. The Explanatory Notes state, “[A]n individual’s right to conscientious objection is not absolute and often has limitations. This is because the right to conscientious objection must be balanced against someone else’s competing rights, for example, the right to life in a medical emergency.”
Recommendation:
• Include a provision which states that, regardless of any conscientious objection, medical practitioners have a duty to provide treatment to a pregnant woman in emergency situations where no other medical practitioner is available.
Head 18: Repeals and consequential amendments of other Acts
The Abortion Rights Campaign welcomes Head 18 which repeals Sections 58 and 59 of the Offences Against the Person Act 1861.
Head 19: Offences
This section, which outlines a possible penalty of 14 years in prison for illegal abortion in Ireland, is chilling. To threaten women facing this difficult decision with imprisonment is not only wrong in and of itself, but it may prevent women from disclosing information about previous abortions to their doctors, or seeking medical care in the event of complications from an illegal abortion. We know from media reports that women are already ordering medication online in order to terminate pregnancies at home.
Furthermore, given that citizens rejected a proposal to punish unlawful abortions by up to 12 years imprisonment as part of the 2002 referendum on the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill 2001, it is clear that a possible penalty of 14 years imprisonment would be viewed as disproportionate and unduly harsh by a majority of the Irish people.
The prospect of an unlimited fine being imposed on a woman or a medical practitioner is also unacceptable The Abortion Rights Campaign opposes the criminalisation of women who have had, or intend to have, abortions.
The Abortion Rights Campaign is further concerned that the interpretation of ‘intent to destroy unborn life’ as outlined in this section could lead to the investigation of women who present with miscarriages. This section also holds the potential to deter women from seeking ‘Women warned of dangers from illegal abortion pills sold online’, The Irish Independent, September 10 2012 ‘Dublin clinic reports increase in amateur abortions’, The Irish Times, May 2 medical treatment following a self-induced but incomplete abortion.
The United Nations Special Rapporteur on the Right to Health, Anand Grover, has called for the decriminalisation of abortion stating, “Criminal laws and other legal restrictions on sexual and reproductive health may have a negative impact on the right to health in many ways, including by interfering with human dignity. Dignity requires that individuals are free to make personal decisions without interference from the State, especially in an area as important and intimate as sexual and reproductive health. Criminalisation also generates and perpetuates stigma and restricts the woman’s ability to make full use of available sexual and reproductive health-care goods, services and information.”
Recommendation:
• Remove all criminal sanctions against women who have had, or intend to have, abortions.
Head 20: Commencement
The Abortion Rights Campaign welcomes the government’s commitment to enacting this long overdue legislation before the Dáil adjourns for the summer recess. Given the importance of this legislation, it is recommended that the Act come into force in its entirety on enactment.
Recommendation:
• The Protection of Maternal Life during Pregnancy Act 2013 should come into force in its entirety on enactment. ‘Decriminalisation of abortion highlighted by UN Special Rapporteur in Dublin’, NWCI press release, December 17th 2012
