The Protection of Life During Pregnancy Act 2013 was passed by both Houses of the Oireachtas on July 30, 2013 and for the first time in the history of Ireland’s legal system there was legislative provision for the undertaking of termination of pregnancy/abortion in Irish hospitals.

In introducing the legislation, the Government stated that it had decided to address the longstanding controversy over the failure of successive former Governments to legislate for the X case, and it viewed it to be a pressing matter. 

The purpose of this article is to review the main provisions of the 2013 Act from a clinical practice perspective and to examine the most controversial aspects of the 2013 Act, in particular S.9 of the legislation, which permits a termination of pregnancy/abortion on the grounds of the suicidal ideation of the female patient. 

Main provisions of the 2013 Act

Overall, the 2013 Act has the following legislative aims:

• To protect human life during pregnancy
• To make provision for review by a pregnant woman of any clinical opinion of any medical practitioner in regard to the operation of this Act
• To provide for the criminal offence of the intentional destruction of unborn human life
• To amend the provisions of the Health Act 2007
• To repeal Ss 58 and 59 of the Offences Against the Person Act 1861
• To provide for all legal matters connected with the 2013 Act.

Definitions 

Under Part 1 of the 2013 Act, entitled Preliminary and General, S.2 of the 2013 Act deals with the definitions of various terms used in the Act. For example, the term ‘unborn’ is a reference to such life which commences at the implantation in the womb of a woman and ends at the complete emergence of the life from the womb. In addition, ‘physical illness’ is defined as including a reference to a physical injury but is not to include a reference to suicide. 

Appropriate institution 

S.3 of the 2013 Act states that the Minister for Health is permitted to specify by ministerial order any institution to be deemed an ‘appropriate institution’ for the provision of appropriate clinical services such as obstetrics and gynaecology as well as intensive/critical care and neonatal services, although either House of the Oireachtas can annul the order within a 21 one day period.

There is potential for controversy here on the basis that while the Act under S.17 permits a medical practitioner as well as other healthcare professionals to refuse to participate in the operation of the legislation, there is no similar opt-out provided to hospitals, where the religious ethos of which might not permit such a procedure to be carried within the institution.

It would appear that this section allows the Minister for Health, if he/she thinks it to be appropriate for the purposes of this Act, to specify any such public hospital, which provides the relevant services such as pregnancy and intensive care facilities.  

In addition, there appears to have been very wide discretion given to the Minster for Health about which hospitals are chosen to be an ‘appropriate institution’, with relatively little or no transparency as to the criteria to be used or the actual selection process itself. 

Crucially, from a legislative perspective, and on the basis of many depositions made before the Dáil Health Committee in the run up to the original Bill being issued and the subsequent Act passed by the Houses of the Oireachtas in July, S.5 of the 2013 Act repeals Ss 58 and 59 of the Offences Against the Person Act 1861.

Main grounds for a termination of a pregnancy/abortion 

The Act then sets out the three main grounds under which a termination of a pregnancy/abortion can be undertaken under this piece of legislation, under the heading in the Act entitled ‘Medical Procedures Lawful Under the Act’. 

Initially under S.7 of the 2013 Act, a termination of a pregnancy/abortion is legal on the basis of there being a risk of loss of life from physical illness. The Act requires that:

• Two medical practitioners certify in good faith
• There is a real and substantial risk of loss of life from a physical illness
• That the risk can only be averted by carrying out a termination of a pregnancy/abortion
• That is it is carried out in an appropriate institution.

Under this section, one of the medical practitioners has to be an obstetrician and the other from a relevant clinical specialty, ie. registered in the specialist register and relevant to care and treatment of the physical illness. If it is at all practicable, the Act requires that the medical practitioners involved in a S.7 termination of a pregnancy/abortion consult with the pregnant woman’s GP.

The next ground is set out by S.8 of the 2013 Act, ie. the risk of loss of life from physical illness in an emergency. Again the Act requires that:

• A medical practitioner believes in good faith that there is an immediate risk of loss of life from a physical illness
• That a termination of a pregnancy/abortion is immediately necessary to avoid risk of loss of life, with regard to need to preserve unborn life as far as is practicable
• That the termination of a pregnancy/abortion is carried out by that medical practitioner.

The final ground is probably the most controversial here, set out by S.9 of the 2013 Act on the basis of a risk of loss of life from suicide. The legal requirement of this Section is that:

• Three medical practitioners certify in good faith;
• That there is a real and substantial risk of loss of life from suicide
• Reasonable opinion that risk of loss of life only averted by termination, with regard to need to preserve unborn life as far as is practicable
• The termination of a pregnancy/abortion is carried out by an obstetrician at an ‘appropriate institution’

In addition S.9 requires that:

• Certification in good faith is required from an obstetrician and two psychiatrists
• One of the psychiatrists is to specialise in pregnancy, childbirth and postpartum care
• If practicable at least one of the three medical practitioners consults with the pregnant woman’s GP.

During the passage of the legislation through the Houses of the Oireachtas earlier this year, and particularly at the committee stage, there were depositions by the majority of psychiatrists in Ireland that evidence based clinical practice in psychiatry would reject a termination of pregnancy/abortion as a form of treatment for suicidal ideation. However, in turn, from a legal perspective it was argued that this provision had to be included so that the 2013 Act would be legally consistent with the legal precedent of the X case. 

Review of a medical opinion 

The next part of the 2013 Act is entitled ‘Reviews’ and here S.10 sets out the right of a pregnant woman to make an application for a review of a medical opinion under the provision of either S.7 or S.9 set out above. 

In the event that a medical practitioner either does not give an opinion or whose opinion is for a termination of a pregnancy/abortion not to proceed on either a S.7 or S.9 ground, then the pregnant woman can have this reviewed by the HSE.

Then S.11 sets out the procedure for the HSE to appoint a review panel which is to be drawn from nominees of the Institute of Obstetricians and Gynaecologists, College of Psychiatrists of Ireland, Royal College of Surgeons in Ireland and Royal College of Physicians of Ireland. 

This review panel is to be the group from which the review committee is appointed and convened within three days of receipt of request for review. S.12 of the 2013 Act sets out the proposed membership of the review committee, namely an obstetrician and two psychiatrists, one of whom has to practise pregnancy, childbirth and postpartum care. 

In addition, any medical practitioner who is consulted by the pregnant woman in regard to an application for a review of a medical opinion will be prohibited from participating in the review committee, due to the possibility of ‘conflict of interest’.

Interestingly, the whole process appears to be in the complete remit of the HSE and it is at the HSE’s complete discretion as to how the review panel is selected as well as the criteria which are to be used for the proposed membership of the review panel. This is very similar to the very wide discretion given to the Minister for Health under S.3 of the Act as discussed above.

Then S.13 of the 2013 Act deals with the review of a medical opinion, and here the review committee to complete its review of the relevant decision within seven days, and notify the pregnant woman as to whether it is of the opinion, in good faith, that there is a real and substantial risk of loss of the pregnant woman’s life from physical illness or suicide as per Ss7 and 9 of the 2013 Act respectively.

Under S.14 the pregnant woman may make representations through a representative or herself, while the review committee may request production of documents or attendance by a practising or former medical practitioner. It is worth noting that non-attendance by the medical practitioner here is a summary offence, which underpins how seriously the Government takes the legislation. 

Annual report 

S.15 of the 2013 Act sets out the legal requirement of the HSE to submit an annual report to the Minister for Health, which is to include the total number of applications, number of reviews carried out, reasons for the reviews  and the outcome of the reviews. The identity of applicant pregnant women and the medical practitioners is to be kept confidential. 

Informed consent 

From a legal perspective, S.16 is very interesting as it states that as regards the legal doctrine of informed consent, the 2013 Act will not amend any enactment or rule of common law or legal precedent relating to consent to medical treatment. 

Conscientious objection 

As stated above, S.17 of the 2013 Act, under the heading of ‘conscientious objection’, states that no medical practitioner, nurse or midwife or other healthcare professional will be obliged to comply with the operation of the Act. 

However, there is a legal obligation for that medical practitioner, nurse or midwife or other healthcare professional to transfer care of the pregnant woman in order for her to attempt to avail of a termination of pregnancy/abortion under S.7 or S. 9 above. 

Then S.18 states that nothing in this Act will affect the existing rights of Irish citizens as regards travel to another state or information regarding services legally available in another state, including a termination of pregnancy/abortion on non-medical grounds, as is consistent with the ruling in the X case and the subsequent constitutional referendum in 1992. 

S.21 of the 2013 Act amends S.9 of the Health Act 2007 stating that in the event that there is any potential for serious risk to the health and welfare of a patient availing of the services under the 2013 Act at a hospital, as per the Health Act 2007, identified by HIQA, then the Minister may revoke the status of the hospital as an ‘appropriate institution’ to carry out S.7 or S.9 procedures.  

Criminal offence 

It is also worth noting that while Ss 58 and 59 of the Offences Against the Person Act 1861 have been repealed, S.22 of the 2013 Act clearly states that it is still a criminal offence to destroy unborn human life, which is punishable on indictment by a fine and/or imprisonment for a term not exceeding 14 years. Under S.22 any such prosecution on indictment is to be instigated by the Office of the Director of Public Prosecutions.

In the connected S.23 of the 2013 Act if an offence is committed by a body corporate, such as a hospital, with the consent, connivance, or wilful neglect of a director, manager, secretary or other officer of the body corporate, then this will result in a prosecution of both the body corporate and the relevant individual. 

Conclusion

It is arguable that this is a very welcome piece of legislation, which clarifies the legal position on the very controversial issue of termination of pregnancy/abortion in clinical practice. 

For example, it appears to finally legislate for the X case, and repeals Ss 58 and 59 of the Offences Against the Person Act 1861, which in theory could result in the imprisoning for life any medical practitioner involved in a termination of pregnancy/abortion here in Ireland, regardless of the clinical circumstances. 

However, it is also reasonable to conclude that there are still some areas of potential difficulty with the implementation of the legislation. For example, there is the lack of legal options for hospitals with a strong religious ethos being deemed an ‘appropriate institution’ by the Minister for the purposes of the Act, despite the fact that medical practitioners and other healthcare professionals are permitted to have a conscientious objection under the same piece of legislation. 

In addition, there is a complete lack of transparency about the selection of hospitals by the Minister for the purpose of implementing the terms of the 2013 Act and being deemed to be an ‘appropriate institution’. There is similar concern about the absence of procedural clarity on the role of the HSE in the setting up and selection of membership to the relevant review panel.

Both cases are susceptible to legal challenge, if not judicial review, by either a hospital objecting to being deemed to be an ‘appropriate institution’ or a female patient whose case is put before the review panel but is unsuccessful in her application respectively.

Current situation 

Finally, there is also the uncertainty about the current operation or otherwise of the 2013 Act, namely that the relevant procedures were not yet in place at the time of writing to make the 2013 Act operational from a clinical perspective.

The Minister for Health recently set up a committee to develop implementation guidelines and the Act has yet to be formally commenced. 

Despite the fact that the legislation has been passed by both Houses of the Oireachtas, as things stand, the Protection of Life During Pregnancy Act 2013 is still causing controversy, and will no doubt continue to do so.