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Difficulties in accessing abortion in cases of fatal foetal anomaly, review finds

‘Conditions put in place by the legislation are anything but compassionate’, notes UnPac study of abortion availability post repeal of Eighth Amendment

The 2018 referendum repealing the Eighth Amendment was invoked positively by most of the 58 women who took part in the Unplanned Pregnancy and Abortion Care (UnPAC) study, published on Tuesday.

Many referred to the sense of “support they felt from fellow citizens when they sought abortion”, says lead investigator Dr Catherine Conlon, assistant professor at the school of social work and social policy, Trinity College Dublin.

Those who sought and were denied terminations for medical reasons, however, “felt absolutely let down and devastated at what they felt was a failure by the State to live up to the spirit of repeal”.

This study of the experiences of women who sought abortion between December 2019 and August 2021 was commissioned by the Health Service Executive (HSE) under section 7 of the 2018 Health (Regulation of Termination of Pregnancy) Act, requiring a review of its working within three years of commencement.

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A further study, of abortion providers’ experiences, is due. Both will be considered in the next phase of the review led by lawyer Marie O’Shea appointed by Minister for Health Stephen Donnelly.

Roll-out of early medical abortion (EMA), up to 12 weeks, is working reasonably well — albeit with some geographical inconsistencies, prohibitive conditions for some women, and “problematic” treatment of women in crisis by some GPs, says Dr Conlon. “The data on the women who sought care under the fatal foetal anomaly (FFA) ground is data that needs very, very careful reading by all of our lawmakers however.” Despite compassionate and dedicated clinicians, “the conditions put in place by the legislation are anything but compassionate”.

Under section 11 of the Act a woman qualifies for termination where two clinicians “in good faith” certify that “there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before, or within 28 days of, birth”.

With advances in foetal medicine some babies with very serious anomalies may live more than 28 days. Given the criminal sanction doctors face if they breach section 11, they must be absolutely certain in their judgment to certify that an abortion is permitted.

Of the 6,577 abortions in the State in 2020, 97 were certified under section 11. In 2019, of the 6,666 abortions, some 100 were. Data for 2021 is not yet published.

“The narrow number of people section 11 actually allows to be cared for and meets their needs in a fully appropriate way is so limited that it is almost meaningless,” says Dr Conlon. “The women said it was disrespecting those who came forward and told their stories during repeal.”

“It was so difficult, even for those who qualified for care. The testing process was so protracted. There were midwives and doctors who were very, very compassionate but being able to give full information was difficult. The chilling effect [of criminalisation] meant they were aware always of the legislation being in the room.”

Kilian McGrane, director of the HSE’s National Women and Infants Health Programme, agrees an “abundance of caution is adopted” when determining whether an abortion is permissible.

“The legislation obviously is very specific ... and with the criminal component of the legislation, consultants have to be extremely confident of their diagnosis.” What he takes from the study is “we can never over-communicate to women in those circumstances.. It is a really, really difficult time for women. Our colleagues are incredibly empathetic but sometimes the process is slow.”

It was striking, says Dr Conlon, that women said abortion was more necessary where a baby might live but be so disabled that their quality of life would be close to nought, than if death was certain.

One mother who travelled to terminate when she found her baby would have a profound, life-limiting disability if it survived said: “I don’t think we made the right decision. I think there were just sh** decisions and we made one of them. And it’s never been a comfort for me to think one was right and one was wrong. There’s just difficult decisions and that’s parenting and that’s what you sign up for. And we made the best difficult decisions we could think of at the time.”