Abortion legislation: ‘woman’ reference, 28 days, consent and other changes

The Government has published the proposed legislation to regulate abortion services to be introduced following the recent referendum to repeal the Eighth Amendment.

The heads of the Health (Regulation of Termination of Pregnancy) Bill was published on Tuesday evening, unveiling a number of minor amendments to the proposed general scheme that was published before the vote on May 25th.

The thrust of the Bill remains the same and that is to allow for access to abortion within the first 12 weeks of pregnancy.

It also makes it lawful for terminations when a mother’s life or health is at risk, and in the cases of fatal foetal abnormalities.

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The Bill cannot be introduced in the Oireachtas as a number of legal challenges are underway to the result of the referendum.

Here are some of the key elements that have changed or may prove controversial:

Woman reference:

The Bill refers to the pregnant woman throughout. It clarifies that "woman" means a female person of any age. Many believe this may exclude transgender people. It is understood the Minister for Health Simon Harris has received advice to the contrary but is willing to examine the issue further.

Head 4 - life or health risk:

This section refers to terminations being permitted when a mother’s life or health is at risk.

The heads of the Bill clarify two medical practitioners – one an obstetrician, and the other an appropriate medical practitioner – will make that determination. The two doctors must agree here is a risk to the life, or of serious harm to the health of the mother before an abortion can be permitted. This cannot be carried out if the foetus has reached viability.

Head 5 - emergency:

This head provides for abortions in the cases of an emergency, where there is an immediate risk to the life, or of serious harm to the health, of the pregnant woman. One medical professional will be permitted to make that decision and no gestational limits will apply.

Head 6 - what is ‘shortly after birth’:

This allows for terminations when two doctors determine the foetus has a condition which will result in death before, or shortly after birth.

This section has been amended to clarify the definition of “shortly after birth” and states this means within 28 days of birth.

Therefore, two medical practitioners can agree to an abortion if they believe the foetus will die before birth or will die within 28 days. This is likely to be the source of some debate within the Oireachtas.

Head 7 - three days or 72 hours?:

This section allows for access to abortions within the first 12 weeks of pregnancy. There is some minor tweaks to this section, in comparison with the general scheme published prior to the referendum.

The Bill clarifies there should be a waiting period between a request for an abortion being made and a termination being permitted.

In the general scheme published before the referendum, a period of 72 hours was referred to but the heads of the Bill refers to three days. There is obviously no material difference but there was a fear the 72-hour period may be too rigid in these circumstances.

Head 14 - consent:

This is a new section to the Bill and clarifies terminations cannot be carried out without the woman’s consent.

Head 15 - conscientious objection:

This is a significant part of the legislation and refers to the issue of conscientious objection.

As was previously outlined, no medical practitioner is obliged to carry out, or to participate in carrying out, a termination of pregnancy.

However, it further clarifies a person who has a conscientious objection will be obliged to make arrangements for the transfer of care of the pregnant woman concerned “as may be necessary to enable the woman to avail of the termination of pregnancy concerned”.

This is something many medical practitioners will have concerns with and something a number of TDs will seek to amend.

Head 18 - payment for information and advice:

This section is a new addition to the Bill and states that a person who engages in, or holds himself or herself out as giving information, advice or counselling in relation to the termination of pregnancy, shall not receive a payment or reward for such. The Bill prohibits a person making arrangements in relation to the termination of a pregnancy within or outside the State, in return for any payment or other reward.

This does not apply to a person in respect of expenses related to their functions. Anyone who receives payment or a financial reward outside of their duties is guilty of an offence.

Head 19 - decriminalisation:

This refers to the decriminalisation and states no woman should be criminalised for terminating her pregnancy. However, a person who intentionally ends the life of a foetus outside the law will be guilty of an offence and may face 14 years in prison.