Full text of the letter sent to the Minister for Health. Mr Martin from the Adelaide Hospital Society.
Mr Micheál Martin TD,
Minister for Health and Children,
Department of Health and Children,
Hawkins House,
Dublin 2.
1st February 2002
Dear Minister,
Re: Health concerns raised by the Protection of Human Life in Pregnancy Act
The Adelaide Hospital Society has carefully considered the impact of the proposed new Act on women's healthcare. We have received professional advice in relation to this aspect of the referendum to give constitutional protection to the Protection of Human Life in Pregnancy Act ("the new Act"). As a result of this consideration and advice the Society believes the new Act poses major threats to women's healthcare in the following vital areas:
1. The healthcare of women who have abortions
The Government will be aware of the many thousands of Irish women who have had terminations of pregnancy outside the Irish jurisdiction and that this number continues to grow at something between 5,000 - 10,000 per year. The abortion rate in 1995 was 8.5 per cent of all pregnancies in Ireland and the figures are likely to be far higher at present. (Women & Crisis Pregnancy Report, Stationery Office, 1998, p.512). The Adelaide Hospital Society has consistently submitted views concerning the primary issues in relation to this very high Irish rate of abortion. We have stated that the development of positive strategies to reduce crisis pregnancies and the provision of comprehensive healthcare for all Irish women, and in particular the very large numbers who have had or will have terminations of pregnancies, must take precedence in reducing the appalling situation which pertains concerning such women.
The new Act does quite the opposite: it reinforces the stigmatisation of thousands and thousands of Irish women who have terminations of pregnancy outside Ireland. Such women will be led to believe from the new Act (Section 2(3)) that if they had such terminations in Ireland they would be subject to criminal proceedings and upon conviction "imprisonment for a term not exceeding 12 years or a fine or both". Therefore, it is obvious that the reluctance of such women to access necessary advice and healthcare services, which is already such a major concern, will be permanently reinforced in this threatening, negative and judgmental context. This undoubtedly will pose a permanent and grave threat to the development of, and access to, proper comprehensive healthcare for a large and growing number of Irish women.
While the Government makes the point that the right to travel for a termination will be protected, that right is not equally accessible to all in the circumstances outlined at (2)(3) and (4) below; the financial and other resources required continue to reinforce the gross social inequality of our public health services.
2. Women who are suicidal while pregnant
While it is rare for pregnant women to be suicidal and to require a termination for this reason, it does occur and the new Act specifically outlaws a termination in such a case (Section 1(2)). In terms of good and comprehensive healthcare, Irish legislation should provide for such women. The thinking behind the new Act appears to imply that women would feign this condition in order to obtain an abortion and that the profession of psychiatry would collude with this and that psychiatrists might also be incompetent to assess the risk to the life of such patients. The Adelaide Hospital Society believes that this is a shocking implication in relation to Irish women and to the profession of psychiatry. The provision of good and proper healthcare requires that women's mental and physical health be not divorced as proposed in the new Act. It is most regrettable that the Government proposes that such ill patients must travel overseas if their condition requires a termination.
3. Women who suffer incest and rape
The new Act does not provide for terminations in the circumstances of pregnancies which result from incest or rape. It thereby enforces such a pregnancy upon young girls or women unless they travel to another more compassionate jurisdiction. To travel, such a girl or woman requires resources and support such as provided by Health Boards (as was done in the 'C' case). Given the Taoiseach's stated view that "the Government is of the opinion that it would not be appropriate to provide for legalised abortion in Ireland on the grounds of an allegation of rape" (The Irish Times October 20th 2001) Health Boards may be reluctant to provide support to such girls and women even to travel for this reason, much less to consider the proper welfare of such patients themselves.
4. Women with a very seriously malformed foetus
Under the new Act women with a foetus suffering from very serious defects incompatible with life, such as anencephaly, will be forced to carry on with the pregnancy if their own life is not immediately threatened. This ignores the needs and concerns of women who do not wish to bring such a foetus to full term. The mother should be able to decide on a termination when such a prognosis is provided. The mental and physical health of such women should be paramount and they should be treated as autonomous patients with a right to full information and a right to choose whether to terminate the pregnancy or not.
5. Emergency medical treatment of pregnant women
The new Act provides for "a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended" where that procedure is "necessary to prevent a real and substantial risk to the loss of the woman's life other than by self-destruction" (Section 1(2)). There is no exact description of "approved places" in the new Act and these will be created by a statutory order from time to time. There is no provision in the new Act for dealing with emergencies which occur in pregnancy which require an immediate termination to save a woman's life if such a woman is away from "an approved place" unless these be designated liberally throughout the State. This implies a serious lack of trust in the medical profession who have to care for all women in every geographical part of the State. Fears have been expressed to us that women's lives will be put at risk by the new Act unless further amendment of this legislation is made.
6. The new Act and existing contraceptive and assisted human reproduction services
The new Act is to receive a unique place in our Constitution and will be open to amendment only by way of a further referendum. We have been advised that an appalling healthcare vista could result from the unknown consequences of judicial interpretation of the existing constitutional provision under Article 40.3.3 combined with the new Act. In particular, issues arise in relation to contraception and assisted human reproduction services due to the wording of the new Act, the methodology of attaching it to the Constitution making it well-nigh unamendable and the existing lack of legal clarity as to the meaning of "unborn" in Article 40.3.3 of the Constitution.
Does the constitutional provision apply from the moment of conception, in which case legal difficulties arise in the context of the morning-after pill, embryo creation and destruction and other related medical procedures? Or does it apply from implantation in the womb, in which case termination of pregnancy may be prohibited but other procedures before that point remain outside the ambit of the Constitution?
The new Act seems to indicate that it is proposed to protect the embryo from implantation but due to the insertion of the Act to complement the existing provisions in the Constitution, this may not be the result. The Government proposal does not "reinterpret" or "redefine" the term "unborn" as used in Article 40.3.3, and crucial healthcare services will continue to be at the hazard of future litigation.
If such legal doubts continue medical procedures currently practised in Ireland in relation to contraception and in-vitro fertilisation(which in certain circumstances could be deemed a failure by the State to protect the right to life of the unborn) remain extremely vulnerable.
Without the morning-after pill many more women would become pregnant and travel for abortions overseas. Without IVF the one in six couples affected by infertility in this country will also have to travel elsewhere to have a chance of having a child of their own.
Given the above, the Government can hardly be said to be just completing "unfinished business" with the new Act.
In conclusion, the Adelaide Hospital Society believes that the new Act poses a series of major threats and concerns in respect of women's healthcare and will, if enacted, permanently damage the context in which accessible comprehensive women's healthcare might otherwise have developed along positive paths for women. The Society has supported legislation to regulate abortion following the circumstances of the 'X' case. Such legislation should be subject to amendment by the Oireachtas in the light of changing circumstances and experiences.
This legislative approach should be in the context of a genuine commitment to a major development of a comprehensive health service for women. The Society believes that this approach offers the best prospect of reducing the extremely high Irish abortion rates.
The proposed legislation ("the new Act") is profoundly discriminatory against women and indeed couples who are prevented from making informed choices; against the socially deprived who cannot afford to travel to a more compassionate jurisdiction; against individual citizens and minorities who may hold contrasting, but in their opinion, valid views.
We are gravely concerned that the above vital healthcare aspects of the new Act have not been adequately addressed by Government.
Yours sincerely,
_________________
Fergus O'Ferrall (Dr)
cc: An Taoiseach, Mr. Bertie Ahern, TD.
An Tánaiste, Ms Mary Harney, TD.