Lawful-abortion process shrouded in uncertainty

ANALYSIS : There are no official figures on the number of procedures, while hospital ethics committees meet behind closed doors…

ANALYSIS: There are no official figures on the number of procedures, while hospital ethics committees meet behind closed doors, writes CARL O'BRIEN

THE CASE of Michelle Harte has cast a spotlight on the ethics forum of Cork University Hospital – in particular its advice that she was not eligible for an abortion in Ireland, despite suffering from a life-threatening illness.

After being warned by doctors that her pregnancy posed a major risk to her health, the medical consultant treating her referred the matter to the hospital’s ethics forum.

While Harte was told informally by doctors that the group was likely to advise in favour of an abortion, the forum found differently.


After considering the issue for at least a week, or possibly two, Harte says she was advised that she was not eligible for abortion here because her life was not under “immediate threat”.

This forum, chaired by hospital consultant Dr Fergus Walsh, is made of up both medical professionals and non-medical individuals from legal, theology and philosophy backgrounds. A lay person, or member of the public, is also on the forum.

The names of these individuals, who volunteer their time, were not released by the Health Service Executive yesterday.

The existence of these types of forums or committees across Ireland’s hospitals is patchy. While they are mandatory in relation to clinical trials, they are not necessarily required for standard medical practice.

In the case of Cork University Hospital, the forum was established in 2002 “in acknowledgement of ethical difficulties that arise from time to time for patients, their families and hospital staff”, according to the HSE

The HSE said the group can arrange an emergency meeting within 48-72 hours. “The forum comprehensively considers any case referred to it and conclusions are reached within a week to 10 days.”

Attempts to contact Dr Walsh regarding the forum’s decision in the case of Harte were unsuccessful yesterday. However, one senior medical professional at Cork University Hospital said Harte’s case was particularly complex.

“There was enormous sympathy for Michelle,” said the source, on condition of anonymity. “I am not a member of the committee and can’t comment on the reasons for the decision, except to say that it was made as quickly as possible given the complex nature of the situation.”

But did the forum make the right decision? And did it have the expertise or detailed legal advice available to it to make a fully informed decision? And how many, if any, lawful abortions have been sanctioned in Ireland on foot of its advice?

We don’t know.

These decisions take place behind closed doors and the public has little access to or right to know of their outcomes.

Even the European Court of Human Rights wasn’t able to get a straight answer when it asked the Government last year for figures on lawful abortions on a national basis in Ireland.

The Government responded that a recent analysis showed that just under 700 women had ectopic pregnancies that might have required the termination of a pregnancy in 2008. However, it said there were no figures available on how many lawful abortions there were.

Some health professionals say these issues are kept deliberately vague. In the absence of detailed legislation to deal with abortion where the life of a mother is at risk, the only law is the 1861 Act. This criminalises a mother or doctor involved in any unlawful abortion.

This, say some doctors, means that while there is a theoretical right to abortion where the life of a mother is at risk, many health professionals are not willing to run the risk of a potential prosecution.

The question of the legal advice available to the ethics forum is another issue where there is a lack of clarity in Harte’s case.

Was it aware of the nuanced legal position in this area? For example, submissions from the Government to the European Court of Human Rights – in relation to the A, B and C case that was the subject of last week’s ruling – sought to reassure judges that a woman would be able to access an abortion in any case where her life was at risk.

It said the Supreme Court in the X case had held that abortion was lawful “if it were established, as a matter of probability, that there was a real and substantial risk to the life, as distinct from health, of the mother”.

As far as Michelle Harte is concerned, the fact that her life was at risk as a result of pregnancy wasn’t just a matter of probability: it was a medical certainty.

“The delay in having an abortion could well have made my condition much worse . . . But why is it that such a simple medical treatment is not available, even when a mother’s life is at risk?” she said this week.

“Anyone else who was even half as sick as I am shouldn’t have to uproot themselves and fly over to England. It’s not fair and it’s not humane.”

Carl O’Brien is Chief Reporter