The proposed new law would make abortion lawful where there is an immediate risk to the pregnant person’s life or an immediate risk of serious harm to her health. One doctor’s certification would be required. No statutory time-limit is proposed.
The current law
Under the 8th Amendment abortion is legal where there is a real and substantial risk to a woman’s life. This includes in emergency situations. Under the Protection of Life During Pregnancy Act 2013 abortion is lawful 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 has to certify to the risk and can thus act without having to wait for further 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).
Proposed new law
If the 8th Amendment is repealed the Government proposes that abortion would be legal where “there is an immediate risk to the life of, or of serious harm to the health of” the pregnant woman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.
Why is there no time limit?
It is standard practice across countries not to have any gestational time limit in emergency provisions relating to the termination of pregnancy.
This is because it is usually considered to be important that the law is absolutely clear so that the focus can be of the provision of emergency medical care, rather than on assessing complex questions of legality.
It is usually the case that medical protocols, medical practice, and implementation guidelines that accompany the law are such that it is clear that when a pregnancy is clearly viable the emergency termination should result in live birth where possible. Such implementation guidelines and medical protocols will be developed for any new law in Ireland, just as they were for the Protection of Life During Pregnancy Act 2013 when it was introduced (PLDPA Implementation Guidelines).
The lack of a strict time limit means that where a pregnancy is on the cusp of, or in the borderlines of, viability a medic can use his or her clinical judgement to provide what he or she considers to be appropriate emergency medical care, and would not be liable for a criminal offence if it turned out the foetus may have been viable.
It is thus usually considered to be important not to have a gestational time limit on such clauses in respect of emergency care in order to provide the legal clarity doctors need to act without the risk of criminal liability in such borderline cases.
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