No solution for the majority of women seeking abortion

The controversial Protection of Life During Pregnancy Bill was passed by the Irish parliament in the early hours of 11 July.

The proposals in the bill legislate for the 1992 X case (Attorney General v X [1992] 1 I.R. 1) which was taken by a 14-year-old rape victim who became pregnant, was suicidal and was refused permission to travel for an abortion. The judgment from Ireland's Supreme Court was that if there was a real and substantial risk to the life, as distinct from the health of the mother, which can only be avoided by the termination of her pregnancy then this could be carried out. The risk to life included the threat of suicide.

The bill is also intended to meet the requirements from the ECtHR decision in A, B and C v Ireland case (A, B and C v Ireland [2010] ECHR 2032). The Strasbourg court determined that Ireland failed to respect Ms C's private life contrary to article 8 of the convention. It found there was no accessible and effective procedure to enable C, who was in remission from cancer, to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law.

The current government is the first in Ireland to try to legislate and clearly set out the circumstances in which the termination of a pregnancy is lawful.

Three consultants

The General Scheme of the Protection of Life During Pregnancy Bill aims to legislate in this area within the parameters of article 40.3.3 of the Irish Constitution, which guarantees the right to life of the unborn with due regard to the equal right to life of the mother, as interpreted by the Supreme Court in the '¨X case.

In the new bill, three consultants (an obstetrician and two psychiatrists) reviewing the case of a woman with suicidal thoughts while pregnant must all agree that a termination should proceed. The requirement for an obstetrician to certify suicidal ideation is incomprehensible. That one obstetrician could veto the decision of two psychiatrists makes no sense except restriction for the sake of it. There is provision for an appeal by the woman where the first three doctors do not approve termination of pregnancy. That final appeal would be to three other consultants. The appeal panel of three doctors must also be unanimous in approval for a termination to be granted under law.

The procedures mean that in the case of suicide threat, a woman could in effect have six doctors reviewing her application. At the heart of this is mistrust; that women who indicate suicidal intention because of their pregnancy are likely to be faking it. Certification for involuntary detention under the Mental Health Act only requires two doctors: a GP and a consultant psychiatrist.

The bill does not cover termination in cases of fatal foetal abnormalities, child sexual abuse or rape. The thinking was that if it covered such things it would certainly be referred to the Supreme Court by the president and, based on the precedent of the Supreme Court in the X case and having regard to article 40.3.3, it would be struck down as being unconstitutional.