Minister for Health Simon Harris outlined in the Seanad some of the main provisions of the General Scheme of a Bill to Regulate the Termination of Pregnancy, if the referendum on whether to repeal the Eighth Amendment goes ahead and is passed:
1. Risk to life and health of the woman
Should the proposed referendum be passed, it would be the Government’s intention to permit termination of pregnancy in cases where there is a risk to the life or of serious harm to the health of the pregnant woman, without a distinction between risk from physical or mental health. The term ‘serious harm’ has been used to indicate the magnitude of the risk which would warrant a termination of pregnancy. Such ‘serious harm’ would go well beyond the expected and common complications of pregnancy, and other common chronic conditions that may be exacerbated by pregnancy.
Two medical practitioners would have to certify that in their reasonable opinion (a) there is a risk to the life or of serious harm to the health of the pregnant woman, (b) the foetus has not reached viability and (c) the termination of pregnancy is appropriate to avert the risk. One of the medical practitioners would have to be an obstetrician and the other, a medical practitioner appropriate to the clinical circumstances of the case. The procedure would have to be carried out by an obstetrician.
The definition of viability proposed in the scheme is the point in a pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of sustained survival outside the uterus. Doctors would assess the growth and development of the foetus, and any other factors that are likely to influence viability at that point in time. It is very important that doctors with expertise in foetal medicine and neonatology would be free to make their assessments on a case-by-case basis in consultation with the woman.
Developments in foetal medicine and neonatology allow very premature and often very unwell babies to survive and to experience very positive outcomes.
This requirement to certify that the foetus has not reached viability is an effective ban on later term abortions. Such a ban does not exist in other countries, like the UK.
2. Risk to health in an emergency
We would also propose to make provision for access to termination of pregnancy on an emergency basis, in line with the process in the 2013 Act (Protection of Life During Pregnancy Act). That would cover situations in which the risk to the life or of serious harm to the health of the pregnant woman is immediate.
3. Conditions likely to lead to the death of the foetus
Should a referendum on Article 40.3.3 be passed, the Government would propose to permit termination of pregnancy on the grounds of a condition which is likely to lead to death before or shortly after birth.
In these cases, two appropriate medical practitioners, as opposed to just one as was proposed in the Joint Oireachtas Committee report, would be involved in the assessment, recognising that these complex medical cases are currently managed by multidisciplinary teams.
As for the risk to life or health ground, one of the medical practitioners would have to be an obstetrician, and the procedure would have to be carried out by an obstetrician.
In these terrible, tragic cases the reality is that women may choose different options. Many will choose to continue with the pregnancy, and they should be supported. But others may not, and they need to be supported too.
In these cases, the people best placed to make such a decision are the woman and her medical team.
4. Early pregnancy (12 weeks)
In order to deal with rape and incest, the Joint Committee recommended that termination of pregnancy be permitted up to 12 weeks without specific indication. The majority of members of the Joint Committee saw legal and medical difficulties if there was to be a requirement that a rape be verified and that a pregnancy was as a result of that rape.
This recommendation was also based on evidence of the increasing use of abortion pills purchased over the internet and taken by pregnant women without medical supervision.
Should the proposed referendum be passed by the people, it would be the Government’s intention to permit termination up to 12 weeks of pregnancy. In such cases, a medical practitioner would have to certify that he/she is of the reasonable opinion, formed in good faith, that the pregnancy concerned has not exceeded 12 weeks. A period of 72 hours would have to elapse between certification and the termination being carried out.
I believe it is appropriate that there is a brief period of time allowed for a woman to make a considered decision after discussing all the options with her doctor. Indeed, this is denied to Irish women today who make lonely journeys to other countries or are accessing abortion pills online and taking them alone and unsafe.
In the General Scheme approved by Government, it is proposed that it shall be an offence to terminate a pregnancy otherwise than in accordance with the provisions set out in the general scheme. However, a woman who procures or seeks to procure a termination of pregnancy for herself in such circumstances would not be guilty of an offence.
6. Other issues
Should a referendum on Article 40.3.3 be passed by the people, the Government would also propose to provide in legislation for a number of other issues not covered by the Joint Committee in its recommendations. These would include, for example, setting out provisions similar to those in the 2013 Act on consent, and permitting conscientious objection.
In line with the 2013 Act, it would also be proposed to require notification of each procedure by the medical practitioner to the Minister for Health. Similarly, it would be proposed that provision would be made for a formal review process for a woman in certain defined circumstances. Reports on notifications and reviews would be published annually by the Minister and the HSE respectively, as is currently the case.