What does the proposed new law say about disability?

The government proposes that abortion will be available on request up to 12 weeks (see explanation here). After 12 weeks, a woman will only be able to access an abortion if two doctors  agree that her life is at risk, if her health is at risk of serious harm or the foetus has been diagnosed with a fatal condition. If the diagnosis is not of a fatal condition, abortion will be illegal (see explanation here).

It is possible to screen for some disabilities within the 12 week period during which abortion will be made available on request. However, the IOG has said that, at the moment, a confirmed diagnosis will rarely be available before the deadline for termination under the proposed law. The Master of the Rotunda Hospital has said that, in his experience, about half of parents receiving such a diagnosis will go on to travel to terminate the pregnancy. (For the Master of the Rotunda Hospital’s testimony to the Joint Oireachtas Committee see here).

A woman who has received such a diagnosis will only be able to terminate a pregnancy under the proposed Irish law after 12 weeks if she can demonstrate a risk to her life, or a risk of serious harm to her physical or mental health. The mental health ground proposed for Ireland, and the British law on abortion for mental health reasons in are very different (see further here) and so it is clear that a woman would not be able to access an abortion in Ireland after 12 weeks only because she was distressed by a particular foetal diagnosis.

Another key difference between the proposed Irish law, and the British Abortion Act 1967, is that the British law permits terminations later in pregnancy where there is a diagnosis of serious disability (read more about that Act here). The proposed Irish law does not.

It is also important to remember that, under the proposed Irish law, a foetus which can be born alive will be delivered alive by early induction or Caesarean section, and cared for like any other premature baby. This is because in cases of risk to life or serious risk to health, abortion will only be lawful until viability (see explanation here).

A woman who cannot show some other legally valid reason for terminating the pregnancy will still be entitled to travel abroad to seek an abortion, just as she is entitled to do so now (see more here).

The UN Committee on the Rights of Persons with Disabilities discourages states from passing laws which permit termination of a pregnancy only because the foetus has been diagnosed with a disability. However, it accepts that women should still have access to abortion where continuing with the pregnancy would expose them to inhuman or degrading treatment or where they are otherwise unable to continue the pregnancy for health or socio-economic reasons.

Further Reading:

NUI Galway Centre for Disability Law and Policy, Submission to the Citizens Assembly.

Letter to the Irish Times January 22 “The Eighth Amendment and Disability”

Enright and de Londras, Repealing the 8th, Postscript p.p. 99-101 and 137-141

Will the European Court of Human Rights force Ireland to introduce abortion ‘on demand’?

To date, the European Court of Human Rights has said that it is up to every individual state to decide whether and, if so, when to allow for lawful abortion.

In states where abortion is legal on limited grounds, the state must make sure that women who are legally entitled to access an abortion are able to do so in practice. For example, the state must take steps to ensure that women do not experience unnecessary delays in accessing treatment.

It is extremely unlikely that this will change in the foreseeable future, especially as international human rights law does not recognise a right to abortion ‘on demand’. Instead, it establishes a right to access abortion in cases of rape, incest, and ‘fatal foetal anomaly’.Read More »