A referendum was held in 1983, resulting in the adoption of a provision which became Article 40.3.3 of the Irish Constitution, the Eighth Amendment. Article 40.3.3 provides as follows:
‘‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’’
The interpretation of the Eighth Amendment was considered in Attorney General v X & Others in 1992. The Supreme Court held that if it were established as a matter of probability that there was a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful. A termination of pregnancy arising from a risk to life from suicide was deemed lawful under this judgment.
The area was revisited in the judgment of the European Court of Human Rights in A, B and C v Ireland case, which placed Ireland under a legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether or not a termination may be carried out in accordance with Article 40.3.3 of the Constitution as interpreted by the Supreme Court in the X case.
In December 2012 , the Government approved the implementation of the judgment of the European Court of Human Rights in the A, B and C v Ireland case by way of legislation with regulations, within the parameters of Article 40.3.3of the Constitution as interpreted by the Supreme Court in the X case. The Act aims to give effect to the Government’s decision to legislate in this area.
Purpose of 2013 Act (now repealed)
The main purpose of the Protection of Life during Pregnancy Act 2013 wa to restate the general prohibition on abortion in Ireland while regulating access to lawful termination of pregnancy in accordance with the X case and the judgment of the European Court of Human rights in the A, B and C v Ireland case. Its purpose is to confer procedural rights on a woman who believes she has a life-threatening condition, so that she can have certainty as to whether she requires this treatment or not.
The Act was divided into three parts, and a Schedule is also appended. The Minister may deem an institution to be an appropriate institution by order where it
- provides in-patient services under the care of medical practitioners from at least 3 medical specialties and which provides pregnancy, childbirth and post-partum services to women, or
- at which in-patient services (including intensive and critical care services) are provided under the care of medical practitioners from at least 7 medical specialties.
any such order made by the Minister under the Act must be brought before the Houses of the Oireachtas for approval.
The Minister may issue regulations for the purpose of any matter referred to by the Act for any matter that he/she deems necessary for the operation of the Act . The Minister has power regarding the content of any regulations to be issued under the aegis of the Act . Any regulations made under the terms of the Act must be brought before the Houses of the Oireachtas for approval.
Termination procedures Permissible (Pre-2018)
It is lawful to carry out a medical procedure in the course of which, or as a result of which, unborn human life is ended where the procedure is carried out by an obstetrician/gynaecologist in an appropriate institution, and two medical practitioners registered on the Specialist Division of the Medical Council Register have certified that in their reasonable opinion there is a real and substantial risk to the life of a pregnant woman arising from physical illness that can only be averted by that medical procedure.
The opinion must be formed in good faith which and must haveregard to the need to preserve unborn human life as far as practicable) This risk does not need to be immediate nor inevitable.
One of the two certifying medical practitioners is to be an obstetrician/gynaecologist who practises in an appropriate institution; The second is to be a medical practitioner in a specialty relevant to the risk to the life of the woman, e.g. a cardiologist, oncologist, etc.
During the process of assessment it may also be appropriate that the pregnant woman’s general practitioner is consulted with her permission and where practicable and feasible.The procedure must be carried out by an obstetrician at an appropriate institution.
Certification is required so that the termination procedure may be carried out; in such situations, the obstetrician/gynaecologist involved is responsible for making the arrangements with the appropriate institution.
Risk of loss of life from physical illness in an emergency (Pre-2018)
It is lawful to carry out a medical procedure in the course of which, or as a result of which, unborn human life is ended when the risk to the life of the pregnant woman from a physical illness is immediate (i.e. in an emergency situation).
When the risk to the life of the pregnant woman is immediate, the opinion of one registered medical practitioner acting in good faith is sufficient for the termination to be lawful. The medical procedure is, in his or her reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) immediately necessary in order to save the life of the woman. The medical procedure is to be carried out by the medical practitioner.
If medically necessary the certification for the procedure may be issued by the medical practitioner after the termination procedure has been carried out but no later than 72 hours afterwards.
Risk of loss of life from suicide (Pre-2018)
Termination of pregnancy shall be lawful in situations where the procedure is
- carried out by an obstetrician/gynaecologist in an appropriate institution, and
- three medical practitioners registered on the Specialist Division of the Medical Council Register have jointly certified that in their reasonable opinion there is a real and substantial risk to the life of a pregnant woman arising from suicide that can only be averted by that medical procedure.
One of the three certifying medical practitioners must be an obstetrician/gynaecologist who practises in an appropriate institution.; One psychiatrist must practise in an appropriate institution and the other psychiatrist must practise at an approved centre or for, or on behalf of, the HSE, or both. At least one of the psychiatrists involved must provide or have provided mental health services to women in respect of pregnancy, childbirth or after delivery.
During the process of assessment it may also be appropriate that the pregnant woman’s general practitioner is consulted, with her permission and where practicable and feasible.
It is the responsibility of the obstetrician/gynaecologist involved to ensure that the required certification is sent on to the appropriate institution, and to make arrangements to ensure that the termination procedure may be carried out.
The establishment of a formal framework providing for an accessible, effective and timely review mechanism is one of Ireland’s obligations under the judgment in the A, B and C v Ireland case.
Application for review of medical opinion
It is the responsibility of a medical practitioner who has not given an opinion when requested who has not given an opinion such as would be required for certification to inform the pregnant woman in writing that she may apply for a review of this decision. A a pregnant woman or a person acting on her behalf may apply to the Executive for a review of the decision above.
The Health Service Executive will establish and maintain a panel consisting of at least 10 medical practitioners. The Executive shall, in addition to appointing medical practitioners duly identified by it for appointment to the review panel, request—
- the Institute of Obstetricians and Gynaecologists,
- the College of Psychiatrists of Ireland,
- the Royal College of Surgeons in Ireland, and
- the Royal College of Physicians of Ireland,
to nominate medical practitioners for appointment to the panel.
The review panel must consist only of medical practitioners and the HSE shall revoke the appointment of a member of the panel who ceases to be a medical practitioner.
The HSE shall identify medical practitioners for appointment to the panel and request the Institute of Obstetricians and Gynaecologists, the College of Psychiatrists of Ireland, the Royal College of Surgeons in Ireland and the Royal College of Physicians of Ireland to nominate medical practitioners for this purpose.
The HSE may appoint to the review panel one or more of the medical practitioners identified. It has a duty to establish and convene a committee drawn from the review panel to review the relevant decision no later than 3 days from the receipt the application.
When the review committee is called upon to review a decision it shall consist of one obstetrician/ gynaecologist who practises in an appropriate institution and a medical practitioner in a specialty relevant to the risk to the life of the woman, e.g. cardiologist, oncologist, etc.
When the review committee is called upon to review a decision in relation to the risk of suicide, it shall consist of an obstetrician/gynaecologist who practises in an appropriate institution and two psychiatrists, one of whom must practise in an appropriate institution and the other must practise at an approved centre or for, or on behalf of the HSE, or both. One the psychiatrists involved must provide or have provided mental health services to women in respect of pregnancy, childbirth or after delivery.
Medical practitioners are excluded from sitting on the review committee if they have been previously consulted by the pregnant woman in relation to the matter that is the subject of the review.
A refusal to give an opinion to the woman will be treated as if it were a refusal to give such an opinion for the purposes of certification under either of the above circumstances.
Review of relevant decision (Pre-2018)
The review committee completed its review as soon as possible but no later than 7 days from the date of its establishment. The committee shall examine the pregnant woman in order to reach a decision.
Where the committee has carried out its review and has in good faith decided that there is (a) a real and substantial risk to the pregnant woman’s life from physical illness or suicide (b) which can only be averted by carrying out the termination procedure set out then it shall, jointly certify the opinion and inform woman/applicant on her behalf and the HSE in writing as soon as possible. The opinion is to be one formed in good faith which has regard to the need to preserve unborn human life as far as practicable.
Where a review committee has carried out its review and is not satisfied that the conditions apply, it shall inform woman/applicant on her behalf and the HSE in writing as soon as possible.
The certifying obstetrician shall be responsible for forwarding the ertification to the appropriate institution, and (b) shall make the necessary arrangements for the carrying out of the termination procedure. Joint certification means that all members of the committee make the certification concerned.
Procedures of review committee (Pre-2018)
The Act sets out the general procedures for the committee when reviewing the case. The pregnant woman is entitled to be heard by the committee, and should she so wish the committee shall make arrangements to enable her, or a person acting on her behalf, to be heard. The committee may issue written directions to a medical practitioner to produce documents or records to the committee or appear before it to assist and answer questions.
The committee, subject to the provisions of the Act, determines its own procedures. The HSE is to arrange administrative facilities so that the committee may perform its functions. The HSE is to pay the members of the committee, at a level to be determined by the Minister and subject to approval of the Minister of Public Expenditure and Reform.
It is an offence not to comply with a direction penalty for which is a class C fine. Proceedings for an offence may be brought and prosecuted by the HSE.
Report by HSE on operation of Legislaiton
The HSE shall submit a report by 30th June each year, to cover the operation of reviews under Chapter 2 of the Act in the year gone by. The report must cover
- the total number of applications for review,
- the number of reviews carried out,
- the reasons why the review was sought and
- the outcome of the reviews.
Certain forms of information shall be excluded from the report by the HSE, in order to prevent identification of a woman who has made an application or had an application made on her behalf.
The 2013 Act does not affect any current legal provisions relating to consent to medical treatment. The intention is that the provisions of the Act will operate within the existing legal provisions in regard to consent for medical procedures.
Medical practitioners, nurses and midwives will not be obliged to carry out or assist in carrying out termination procedures referred to if they have a conscientious objection. This does not affect any duty to take part in a termination procedure where an emergency situation exists.
A person who has a conscientious objection shall arrange for the transfer of care of the pregnant woman concerned so that she may avail of the termination procedure concerned.
Travel and information (Pre-2018)
Nothing in the 2013 Act limits
- freedom to travel between this State and another or
- to obtain or make available in this State information on services lawfully available in another state.
The Act does not restrict any person from travelling to another state on the basis that his/her intended conduct there would be an offence below if it occurred in this State.
Certification under the Act will
- be made in the prescribed form and manner and
- contain prescribed information, which may include the clinical grounds for the procedure.
Where a medical / termination procedure referred to is carried out, the person in charge of the appropriate institution concerned shall keep a record (i) in the prescribed form and manner and (ii) containing the information specified. He/she must forward a copy of the record, or a prescribed part of the record, to the Minister in the prescribed manner no later than 28 days after the medical procedure has been carried out.
Where an emergency medical procedure is carried out in a location other than an appropriate institution, the medical practitioner who carried out the medical procedure or the person in charge of the location, if appropriate, shall keep a record (i) in the prescribed form and manner and (ii) containing the information specified. A a copy of the record, or a prescribed part of the record, must be forwarded to the Minister in the prescribed manner no later than 28 days after the medical procedure has been carried out.
The record to be kept and forwarded to the Minister must contain the following information:
- the Medical Council registration number of the medical practitioner who carried out the procedure;
- whether the medical procedure was carried out in relation to which type of certification;
- the name of the appropriate institution in which the procedure was carried out, or an identifying description of the location, if the procedure was carried);
- the date on which the procedure was carried out.
The Minister shall prepare a report by 30th June each year on the notification received in the year gone by.The Minister will publish the report in an appropriate form as soon as practicable after its preparation.
Where there is a serious risk of a failure by an institution to comply with the provisions of the Protection of Life during Pregnancy Act, then wn an investigation is being undertaken in respect of such a serious risk relating to an appropriate institution, the Minister may suspend permitted procedures. When the Minister is satisfied that there is no such serious risk or that such risk no longer exists, he may revoke the suspension.
It is an offence to intentionally destroy unborn human life. A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both.
A prosecution for an offence under this section may be brought only by or with the consent of the Director of Public Prosecutions.
Offence by body corporate
Where an offence under the Act is committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person, as well as the body corporate, shall be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
- Adelaide and Meath Hospital Dublin Incorporating the National Children’s Hospital Beaumont Hospital
- Coombe Women & Infants University Hospital Cavan General Hospital
- Cork University Hospital and Cork University Maternity Hospital Galway University Hospitals
- Kerry General Hospital
- Letterkenny General Hospital
- Mater Misericordiae University Hospital
- Mayo General Hospital
- Midland Regional Hospital Mullingar
- Midland Regional Hospital Portlaoise
- Mid-Western Regional Hospital Dooradoyle
- Mid-Western Regional Maternity Hospital
- The National Maternity Hospital, Dublin
- Our Lady of Lourdes Hospital, Drogheda
- Portiuncula Hospital Ballinasloe
- The Rotunda Hospital
- Sligo General Hospital
- South Tipperary General Hospital
- St Luke’s Hospital, Kilkenny
- St James’s Hospital
- St Vincent’s University Hospital
- Waterford Regional Hospital
- Wexford General Hospital