When will abortion be legal after 12 weeks?

 The government proposes to legalise abortion after 12 weeks in four situations:

  • Where there is a risk to a woman’s life
  • Where there is a  risk to serious harm to a woman’s  physical or mental health
  • In emergency situations where there is an immediate risk to a woman’s life or a risk of serious harm to her health
  • Where the foetus has been diagnosed with a condition that means it will die before or shortly after birth (fatal foetal anomaly)

Except in emergencies or in cases of fatal foetal anomaly abortion will be illegal after the foetus has reached viability.


What is a risk to a woman’s life?

The 8thAmendment allows for abortion in situations where there is a “real and substantial risk to the life, as distinct from the health” of the pregnant woman (AG v X [1992] 1 IR 1). This means that under the current law doctors can only intervene to end pregnancy once a risk to life has become “real and substantial”. This constitutional law was passed into legislation in the Protection of Life During Pregnancy Act 2013.

“Real and substantial” does not have a precise medical meaning. It is clearly higher than a ‘mere’ risk to life. However, the law does not require death to be imminent before the pregnancy can be terminated. Whether the risk is ‘real and substantial’  is a clinical determination, i.e. a matter of professional medical judgement. As explained in the Implementation Guidance on the Protection of Life During Pregnancy Act, (p.31) if the foetus is viable that intervention will be to induce live birth and the baby will receive all necessary care. If the foetus is not viable its life may be ended.

The proposed new law would change the law on when a risk to life triggers an entitlement to access an abortion. It would allow for abortion if there were a risk to life, without requiring doctors to wait until that risk is “real and substantial” (Head 4, General Scheme). Once a risk to life has arisen, without having to wait for it to intensify so that the likelihood of death is very high, doctors would be able to intervene to end pregnancy provided the following four conditions were met:

  1. Two doctors, one of whom is an obstetrician and the other of whom is an “appropriate” medical practitioner, certified that the risk to life exists;
  2. Two doctors, one of whom is an obstetrician and the other of whom is an “appropriate” medical practitioner, certified that the foetus is not viable;
  3. Two doctors, one of whom is an obstetrician and the other of whom is an “appropriate” medical practitioner, certified that abortion would be appropriate in the circumstances;
  4. The pregnant woman consented to terminating the pregnancy.

In non-emergency situations, it would be a crime under the proposed new law to end the life of a viable foetus, even if the life of the woman was at risk or her health was at risk of serious harm (Head 18, General Scheme). The penalty proposed (up to 14 years) is extremely strict by European standards.

What is a risk of serious harm to a woman’s health?

Under the 8th Amendment abortion is not legal to protect a woman’s health; it is permitted only where there is a “real and substantial risk to the life, as distinct from the health” of the pregnant woman (AG v X [1992] 1 IR 1).

If the 8thAmendment is repealed, the Government proposes that abortion would be legal after 12 weeks and until viability where there is a risk of serious harm to health (Head 4, General Scheme). Almost all European countries have a health ground which allows women to access abortion later in pregnancy. Many countries set a time limit to this ground, and/or qualify it with language such as ‘serious’ or ‘grave’. Examples of countries following this model include Spain, and Italy.

As the proposed law specifies that the harm in question must be “serious”, it is clear that this requires something higher than the ordinary health risks that come with pregnancy. This is very different to the law in England, for example, where the ordinary health risks (physical and mental) of continued pregnancy are sufficient to allow for lawful abortion until 24 weeks (Abortion Act 1967, s. 1(a)).

Two medical practitioners would assess and certify to the severity of the risk to health. No distinction would be drawn between physical and mental health, but in both cases the apprehended harm would need to be serious. Severity is likely to be assessed clinically by considering both temporary severe ill-health (short-term morbidity) which arises during pregnancy, and severe permanent injury to health (long-term morbidity).

We could expect doctors to take account of the woman’s own assessment of the severity of her health risks but this does not determine the risk: that is a clinical determination, i.e. a matter of professional medical judgement.

This means that under the government’s proposals, once a risk of serious harm to health has arisen, but without having to wait for it to develop into a risk to life, doctors will be able to intervene to end pregnancy provided the following four conditions are met:

  1.  Two doctors, one of whom is an obstetrician and the other of whom is an “appropriate” medical practitioner, certify that the risk to health exists and that it is a risk of ‘serious’ harm;
  2. Two doctors, one of whom is an obstetrician and the other of whom is an “appropriate” medical practitioner, certify that the foetus is not viable;
  3. Two doctors, one of whom is an obstetrician and the other of whom is an “appropriate” medical practitioner, certify abortion would be appropriate in the circumstances;
  4. The pregnant woman consents to abortion.

In non-emergency situations, if a risk of serious harm to health arises after the foetus has reached viability abortion would be a crime.

Do any other countries use ‘viability’ as a time limit for access to abortion in these kinds of circumstances?

Yes. For example, in Italy, if there is a serious threat to the woman’s physical or mental health, and the foetus is viable, the physician performing the termination shall ‘take any appropriate action to save the life of the foetus’. In Spain, even if the woman’s life is at risk or her health is at serious risk “the appropriate course of action is to induce labour which fully balances her right to life and physical integrity and protection of the life in formation.” A full set of translated European abortion laws is here.

How will the law work in emergency situations?

Under the 8thAmendment abortion is legal in an emergency situation where there is “an immediate risk of loss of the woman’s life from a physical illness” and termination is “immediately necessary in order to save the life of the woman” (s. 8, Protection of Life During Pregnancy Act 2013).

The legal standard (“real and substantial risk to life”) is the same whether in emergencies or not. However, to take account of emergency contexts the process is different: under the current law only one doctor will have to certify to the risk and can thus act without having to wait for futher certification. This is to ensure doctors can act without delay where there is an immediate risk – where there is no time to follow the ordinary statutory procedure. There is no gestational time limit for such intervention under the current law. It is normal medical practice to try to ensure foetal survival when viability has been reached, even in an emergency situation.

In 2016 there were 16 terminations of pregnancy in situations of emergency arising from physical illness under the 2013 Act (report). In 2015 there were 9 terminations of pregnancy in situations of emergency arising from physical illness under the 2013 Act  (report). In 2014 there were 9 terminations of pregnancy in situations of emergency arising from physical illness under the 2013 Act (report).

If the 8th Amendment is repealed the Government proposes that abortion would be legal where “there is an immediate risk to the life of, or of serious harm to the health of” the pregnant woman and “it is immediately necessary to carry out the termination in order to avert that risk” (Head 5, General Scheme).

The legal standard (risk to life or risk of serious harm to health) is the same as in non-emergency situations, but to take account of the emergency context the process would be different because a doctor could act without having to wait for a second doctor to certify the risk. This is to ensure doctors can act without delay in situations of immediate risk. There is no gestational time limit for such intervention under the current law. It is normal medical practice to try to ensure foetal survival when viability has been reached, even in an emergency situation.

How will the law work in cases of fatal foetal diagnoses?

Under the 8thAmendment abortion is not legal where a foetus has been diagnosed with a fatal condition; it is permitted only where there is a “real and substantial risk to the life, as distinct from the health” of the pregnant woman (AG v X [1992] 1 IR 1).

If the 8thAmendment is repealed the Government proposes to legalise abortion in cases where “there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before birth or shortly after birth” (Head 6, General Scheme). Two doctors would have to certify to this. There is no proposed gestational term limit for this ground; the nature of the diagnosis is that the foetus would not ever reach viability as defined in the proposed law (i.e. “the point in a pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of sustained survival outside the uterus” (Head 1, General Scheme).

This means that under the government’s proposals, it will be legal to end foetal life and bring pregnancy to an end in cases of fatal foetal diagnoses when the following two conditions are met:

  1. Two doctors, one of whom is an obstetrician and the other of whom is an “appropriate” medical practitioner, certify that the foetus has a condition that is likely to lead to its death either before birth or shortly after birth;
  2. The pregnant woman consents to the termination.

 

Further reading:

Implementation guidelines to the Protection of Life During Pregnancy Act

Medical Council’s Guide to Professional Conduct and Ethics.

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