The Liberal has obtained the preliminary draft report from the Dail Committee on abortion.
The Liberal is the first media outlet in Ireland to publish the below draft.
Joint Committee on the Eighth Amendment of the Constitution.
The Preliminary draft report reads as follows:
Contents
- Chapter One – Constitutional reform 3
- The current legal framework
- The Necessity for Constitutional Change 3
- Form of Constitutional Change 4
- Chapter Two – Legislative reform 7
- Introduction 7
- The Protection of Life During Pregnancy Act 2013 7
- Risks to the life and health of the Woman 7
- Definition of Risk 8
- Application of gestational limits 8
- Difficulties with the current assessment process in the area of mental health 8
- Pregnancy as a result of rape or other sexual assault 9
- Foetal abnormality that is likely to result in death before or shortly after birth. 10
- Foetal abnormality that is not likely to result in death before or shortly after birth. 10
- Socio-economic grounds and No restriction as to reason. 11
- Chapter 3 – Ancillary recommendations. 12
- Introduction 12
- Decriminalisation 12
- Contraception 13
- Sex Education 14
- Obstetric Care and Counselling 15
- General 16
Chapter One – Constitutional reform
Introduction
1.1. The Citizen Assembly’s substantive recommendation as regards constitutional change was that Article 40.3.3 should be “replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn, and any rights of the pregnant woman.”
1.2. This recommendation and related decisions of the Assembly were considered during Module 1 of the Committee’s deliberations. Details of the meetings and the witnesses examined and links to the debates for Module 1 are contained in Appendix ??? to this Report.
1.3. The Committee interprets the Assembly’s substantive recommendation as rejecting simple repeal in favour of replacing Article 40.3.3 with a constitutional provision giving exclusive authority to the Oireachtas to legislate on the issue of termination of pregnancy, free from the legal uncertainty of constitutional challenge and judicial intervention.
The current legal framework
1.4. The Eight Amendment was passed on 7 September, 1983, after a bitterly contested referendum. Article 40.3.3 was inserted in to the Constitution and reads 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.”
1.5. The legal framework for the provision of abortion in Ireland derives constitutionally from this provision and its interpretation in Attorney General v. X [1992] 1 I.R. 1 (‘the X case’). Here, the Supreme Court held that Article 40.3.3 permits termination of pregnancy where there is a real and substantial risk to the life, as opposed to the health, of the mother, which risk includes the risk of suicide. That decision has now been put on a statutory footing by way of the Protection of Life During Pregnancy Act 2013, which was passed in July 2013 and commenced in January 2014 . The Act retains the criminalisation of abortion in Ireland and permits abortion only where there is a risk to the life of a pregnant woman. A Guidance Document for Health Professionals on the Implementation of the 2013 Act was published in September 2014.
The Necessity for Constitutional Change
1.6. The Committee understands that the Protection of Life During Pregnancy Act 2013 currently represents the height of the Oireachtas’ legislative power in relation to the provision of pregnancy termination services in Ireland; and that the provision of any further grounds for the provision of such services in Ireland therefore requires constitutional change.
1.7. The Joint Committee agreed, in principle, at its meeting on 18 October 2017, that Article 40.3.3 should not be retained in full. This decision represented an acknowledgement by the Joint Committee that the current regime for the termination of pregnancy in Ireland is unfit for purpose and that constitutional reform is necessary.
1.8. In arriving at this decision, the Joint Committee took into consideration expert legal and medical evidence opened to the Committee relating to the following critical factors: –
(1) The impact of Article 40.3.3 in the provision of health and medical services to pregnant women, particularly relating to the timing of critical clinical decision-making in saving a woman’s life;
(2) The continuing and ongoing breach of Ireland’s international human rights obligations as evidenced in the cases of Mellet v. Ireland and Whelan v. Ireland , in which the United Nations Human Rights Committee found Ireland to be in violation of the International Covenant on Civil and Political Rights (ICCPR). As well as directing compensation and counselling for the women concerned, the Human Rights Committee has called for Ireland to change its laws to allow for termination in cases of fatal foetal abnormality;
(3) The practical reality that thousands of Irish women are already accessing abortion services each year:
(a) Legally, by way of travel to the UK and, to a lesser extent, the Netherlands and other jurisdictions, and
(b) illegally, by way of online telemedicine services and the abortion pill.
1.9. No evidence adduced throughout the remainder of [Modules II and III of] its deliberations has caused the Joint Committee to change its opinion with regard to the necessity for constitutional reform.
Form of Constitutional Change
1.10. The Citizens’ Assembly rejected simple repeal in favour of replacing Article 40.3.3 with a constitutional provision giving exclusive authority to the Oireachtas to legislate on the issue of abortion, free from the legal uncertainty of constitutional challenge.
1.11. The Committee understands this recommendation to represent an effort to remove the complex and divisive issue of abortion from the narrow and inflexible confines of a constitutional provision, in favour of empowering the Oireachtas to legislate unconstrained by judicial intervention. Whilst the Joint Committee agrees with the substantive basis for this recommendation, it disagrees with the Citizens’ Assembly as regards the manner in which this purpose can best be achieved.
1.12. In determining the type and nature of constitutional reform it deemed necessary, the Joint Committee has considered the balance to be struck between certainty and flexibility in law-making and the need to comply with Ireland’s obligations under international human rights law.
1.13. Having regard to the profound, and relatively unprecedented, effect a provision such as that recommended by the Citizens’ Assembly would have on the separation of powers as it is traditionally understood under the Irish Constitution, the Committee is unwilling to recommend the removal of this important supervisory jurisdiction of the Court in an area which, without such a constitutional amendment, would so clearly fall within its jurisdiction.
1.14. Taking all of the above factors in to consideration, the Joint Committee is of the opinion that the Citizens’ Assembly recommendation arising out of ballot 3 would be more adequately addressed by way of simple repeal.
1.15. The Joint Committee recommends that Article 40.3.3 be repealed simpliciter.
Chapter Two – Legislative reform
Introduction
2.1. In Chapter One, the Committee recommended the repeal of Article 40.3.3 in order to give greater scope to the Oireachtas to legislate for the termination of pregnancy.
2.2. The thirteen recommendations of the Citizens Assembly in relation to the grounds on which termination of pregnancy might be lawful , set out in Appendix xxx, are the basis for the Committee’s consideration of the broad shape of the legislation that should be enacted if a referendum to repeal Article 40.3.3 passes.
2.3. These recommendations were considered during Module 2 of the Committee’s deliberations. Details of the meetings and the witnesses examined and links to the debates for Module 2 are contained in Appendix ??? to this Report.
2.4. As part of Module 2, the Committee: –
(i) explored the issues arising from these Citizens’ Assembly recommendations;
(j) reviewed the operation of the Protection of Life during Pregnancy Act, 2013 which regulates the provision of services at present and, in this context, considered whether the procurement of termination services should be decriminalised.
2.5. The Committee’s conclusions and recommendations in relation to these matters are set out later in this Chapter.
2.6. At this point, however the Committee wishes to state its conclusion that any legislation must be accompanied by measures and policies that address and seek to minimise the instances of crisis pregnancies. These issues will be examined in Chapter Three.
The Protection of Life During Pregnancy Act 2013
2.7. The first two grounds for the provision of lawful termination recommended by the Citizens Assembly are contained in the Protection of Life During Pregnancy Act 2013.
2.8. The evidence given to the Committee was that the operation of that Act has created significant difficulties, some of which can only be addressed if the recommendations contained in this Report are adopted.
2.9.
Risks to the life and health of the Woman
2.10. The Citizens Assembly made two recommendations where there was a real and substantial risk to the life of the woman and it made six recommendations in relation to the circumstances in which termination of pregnancy on health grounds should be lawful. The Committee agrees that these are valid grounds for termination of pregnancy and should be provided for in law.
2.11. In relation to the majority of these recommendations, the Assembly further recommended that no gestational limit should apply. However a 22 week gestational limit was recommended in relation to two of the grounds.
2.12. The Committee is of the view that no differentiation should be drawnbetween the life and the health of the woman. This is consistent with the evidence from medical experts made available to the Committee regarding the difficulty medical professionals have in defining where a threat to health becomes a threat to life.
Definition of Risk
2.13. The Committee notes that, in many European countries where a health exception permits a termination beyond the time limits for termination on request, the law does not define risk. Having regard to the expert evidence made available, the Committee accepts that risk depends to a large extent on individual circumstances. The Committee is therefore of the opinion that it is not possible to prescribe for risk in legislation.
2.14. The advice to the Committee is that the assessment of that risk is best considered in a clinical setting rather than being fixed in legislation. The Committee accepts this advice. The Committee also accepts that, in the case of women presenting with mental health issues, the grading of risk is particularly difficult.
Application of gestational limits
2.15. The Committee was given comparative evidence about the law on termination of pregnancy in a number of European countries. Arising from that evidence, the Committee notes that in the majority of these countries the health exception does not have a gestational limit.
2.16. The Committee is accordingly of the opinion that the decision as to when a termination can take place is dependent on a range of factors; and that, in cases involving risk to health, medical practitioners, acting in good faith, and in consultation with the woman, are best placed to make such a decision, subject to any statutory requirements.
Difficulties with the current assessment process in the area of mental health
2.17. Evidence was given to the Committee of an under-resourced psychiatric service for pregnant women and the fact that, in cases where an application was made under the 2013 Act, psychiatrists with minimimal experience of dealing with women in pregnancy could be required to assess cases. The evidence highlights the need for far greater investment in the mental health of pregnant women and the Committee will return to this issue when dealing with the ancillary recommendations of the Citizens Assembly.
2.18. The Committee also heard evidence that the certification and review process had the potential for such delay that women, in a position to do so, are likely to by-pass the process and go abroad to have a termination . This is an issue to be addressed when new legislation is being considered.
2.19. The Committee recommends that
(a) termination of pregnancy should lawful where the life or health of the woman is at risk and that a distinction should not be drawn between the physical and mental health of the woman,
(b) provision for gestational limits for termination of pregnancy should be guided by the best available medical evidence and provided for in [primary] legislation, and
(c) .any assessments in relation to the termination of pregnancy where the life or the health of the woman is at risk should be made by no fewer than two specialist physicians
and the law should be amended to provide accordingly.
Pregnancy as a result of rape or other sexual assault
2.20. The Citizens Assembly recommended that the termination of pregnancy that is the result of rape be lawful up to a 22 week gestational limit.
2.21. While the Committee accepts that it should be lawful to terminate a pregnancy that is the result of a rape or other sexual assault, it has concerns about whether the recommendation of the Citizens Assembly can be implemented in practice. These concerns arise from: –
(a) the difficulty presented in the verification and qualification of a rape or sexual assault . , and
(b) the opinion of the Committee that: –
(i) there is a need to avoid the further trauma to a victim of rape or sexual assault that would arise if some form of qualification or verification was required;
(ii) a requirement for a qualification or verification process is likely to be complex or even unworkable in practice.
2.22. The Committee also heard evidence in relation to the underreporting of rape and sexual offences to An Garda Síochána and the authorities generally in Ireland. The Committee understands why some women find it difficult or impossible to report rape or sexual assault and is accordingly of the opinion that it would be unreasonable to insist on reporting as a precondition for exercising any right to terminate a pregnancy that has resulted from rape or sexual assault.
2.23. The Committee is further of the view that where a woman is concerned that she may be pregnant as a result of a rape or sexual assault, she should have immediate access to appropriate services.
2.24. In view of the complexities inherent in legislating for the termination of pregnancy for reasons of rape or other sexual assault, the Committee is of the opinion that it would be more appropriate to deal with this issue by permitting termination of pregnancy with no restriction as to reason provided that it is availed of through a GP-led service delivered in a clinical context as determined by law and licencing practice in Ireland with a gestational limit of 12 weeks .
2.25. The Committee’s specific recommendation in this regard is set out In paragraph 2.45 under the heading Socio-economic grounds and No restriction as to reason.
Foetal abnormality that is likely to result in death before or shortly after birth.
2.26. The Citizens Assembly recommended that termination of pregnancy should be lawful in cases of fatal foetal abnormality without gestational limit.
2.27. The Committee accepts that a medical diagnosis of fatal foetal abnormality made by a doctor acting in good faith requires a compassionate approach to the family affected and that termination of pregnancy services should be available in such circumstances.
2.28. The Committee is of the view that the health care pathway for a woman who decides to terminate a much-wanted pregnancy, having received the devastating diagnosis of a fatal foetal abnormality, should be the same as the heath care pathway provided to a woman who decides not to terminate her pregnancy. The Committee notes the need to prevent the added physical and mental distress and failure on continuity of care caused to women by the necessity of travelling to another jurisdiction.
2.29. The Committee is of the opinion that it is not appropriate to provide a list of specific foetal diagnoses that are deemed fatal as in many cases such a prognosis arises from a combination of multiple complex abnormalities.
2.30. The Committee furthermore is of the opinion that
(a) a post- mortem should be conducted in all such cases, irrespective of whether a termination takes place; and
(b) abnormality scans should be available to all pregnant woman between the 18th and 22nd week of gestation.
2.31. The Committee accepts that a gestational limit is not appropriate given that ultrasound anomaly scans are generally not provided before the 20th week of pregnancy and further scanning and testing may be necessary when a diagnosis is made.
2.32. The Committee recommends that it shall be lawful to terminate a pregnancy without gestational limit where the unborn child has a foetal abnormality that is likely to result in death before or shortly after birth.
Foetal abnormality that is not likely to result in death before or shortly after birth.
2.33. The Citizens Assembly recommended that termination of pregnancy should be lawful, up to 22 weeks gestation, in cases of foetal abnormality that is not likely to result in death before or shortly after birth without gestational limit.
2.34. The Committee, while noting the burden placed on the woman and the family in such situations, has a concern that legislation in this area will unavoidably stigmatise the vulnerable in our society. In particular, the evidence presented to the Committee in relation to the termination of a pregnancy due to Downs’ syndrome is a particular concern.
2.35. The Committee therefore does not accept this recommendation of the Citizens Assembly.
2.36. The Committee recommends that the law should not provide for the termination of pregnancy on the ground that the unborn child has a significant foetal abnormality where such abnormality is not likely to result in death before or shortly after birth.
2.37. The Committee is of the view that the State needs to provide specific resources so that there are social supports for carers and better facilities for people whose children have special needs.
Socio-economic grounds and No restriction as to reason.
2.38. The Citizens Assembly recommended that termination of pregnancy should be lawful, up to 22 weeks gestation, on socio-economic grounds. The Assembly also recommended that termination of pregnancy should be lawful, up to 12 weeks gestation , without restriction as to reason.
2.39. In considering these grounds, the Committee cannot ignore the extent to which Ireland has an underlying rate of terminations with the majority of which are carried out either in medical clinics in the United Kingdom, or in Ireland through unsupervised use of abortion pills procured through the internet. What became clear during evidence is that the majority of terminations involving Irish women at present are for socio-economic reasons that are unrelated to foetal abnormality or to rape. In addition, the Committee is mindful of that group of women who, for financial or domestic reasons, cannot travel or procure abortion pills over the internet
2.40. Notwithstanding the difficult and varied circumstances in which pregnant women may find themselves, the Committee is of the opinion that termination of pregnancy after 12 weeks for socio-economic reasons should not be provided for and considers that the distinction drawn by the Citizens’ Assembly as regards gestational limits is therefore unnecessary.
2.41.
2.42. The Committee recommends that the law should be amended to permit termination of pregnancy with no restriction as to reason provided that it is availed of through a GP-led service delivered in a clinical context as determined by law and licencing practice in Ireland with a gestational limit of 12 weeks.
Chapter 3 – Ancillary recommendations.
Introduction
3.1 The Citizens Assembly made five ancillary recommendations that try to address the need for better services for pregnant women and also seek more effective ways to avoid crisis pregnancies. The Committee, in seeking to procure better outcomes in these ancillary areas, accepts recommendations, reproduced in the Committee recommendation following.
3.2 The Committee recommends that
Improvements should be made in sexual health and relationship education, including the areas of contraception and consent, in primary and post-primary schools, colleges, youth clubs and other organisations involved in education and interactions with young people.
(a) Improvements should be made in sexual health and relationship education, including the areas of contraception and consent, in primary and post-primary schools, colleges, youth clubs and other organisations involved in education and interactions with young people.
(b) Improved access to reproductive healthcare services should be available to all women – to include family planning services, contraception, perinatal hospice care and termination of pregnancy, if required.
(c) All women should have access to the same standard of obstetrical care, including early scanning and testing. Services should be available to all women throughout the country irrespective of geographic location or socio-economic circumstances.
(d) Improvements should be made to counselling and support facilities for pregnant women both during pregnancy and, if necessary, following a termination of pregnancy, throughout the country.Further consideration should be given as to who will fund and carry out termination of pregnancy in Ireland.
3.3 In addition the Committee makes a number of specific recommendations arising from its consideration of the Assembly’s ancillary recommendations and its own deliberations. These are set out in the paragraphs following.
Decriminalisation
3.4 The Committee notes that the Protection of Life During Pregnance Act 2013 provides that “it shall be an offence to intentionally destroy unborn human life” and provides for punishment on indictment to a fine or imprisonment for a term of up to 14 years, or both, for those found guilty of the offence (s. 22(1)). The Committee has been advised that s. 22(1) applies to a medical practitioner involved in the carrying out of a medical termination and, most likely, to pregnant women in sourcing and taking an abortion pill.
3.5 Evidence was given to the Committee of the growing trend of Irish women using online telemedicine services to procure abortion pills which are then taken at home. The Committee is concerned that the criminalisation of the use of abortion pills in these circumstances has the potential to create a chill factor on women in seeking post-abortion medical care and support, thereby significantly impacting their health.
3.6 The Committee notes that, arising from a case brought by Ms. Amanda Mellet , the United Nations Human Rights Committee, in ruling that Ireland had subjected Ms Mellet to “discrimination and cruel, inhuman or degrading treatment’ because of its laws against abortion in circumstances of fatal foetal impairment, found her suffering was aggravated by the shame and stigma of associated with criminalisation.
3.7 Therefore the criminal provision also has the potential to create a chill factor for doctors and clinical risk by distorting clinical decision-making.
3.8 The Committee, while noting that no prosecutions have yet been taken under the 2013 Act, is of the view that Section 22 of the Act should be repealed and that performance of doctors should be subject to the regulatory and professional standards consistent with other medical procedures. It accepts that the criminalising provisions do not affect the overall incidence of abortions and that there are other legal provisions for the regulation of doctors including criminal sanctions where procedures are performed by unregistered doctors.
3.9 The Committee recommends that the law be amended to provide that
(a) surgical terminations may only be legally carried out in a hospital or licensed clinic
(b) medical terminations may only be provided for through the licencing of medications for that purpose and prescribed by a qualified practitioner acting in good faith.
3.10 The Committee further recommends that where terminations occur in such circumstances
(a) no criminal sanctions should apply, and
(b) in cases where a woman procures or seeks to procure an abortion for herself, the law should provide that, regardless of circumstances, she is not guilty of an offence.
Contraception
3.11 The issue of contraception and the link between greater use of contraception and lower pregnancy termination rates frequently featured in the deliberations of the Committee.
3.12 Evidence was presented to the Committee of findings by the World Health Organisation which reported to the effect that the introduction or liberalising of abortion in France, Italy and Turkey had reduced the number of terminations, mainly because of post-abortion contraception.
3.13 The Committee also heard evidence that Irish women availing of termination services in the United Kingdom do not benefit from contraceptive services provided as a matter of policy to UK citizens immediately post termination.
3.14 Also potentially significant is evidence to the Committee in relation to the outcome of a survey of Irish women who contacted online telemedicine services. The research indicated that 44% of those surveyed were not using a contraceptive method when they became pregnant.
3.15 The Committee has a particular concern about the cost of contraception and notes that, while it is free for those with a medical card, for those on the cusp of qualifying for a medical card, the costs can be prohibitive. According to a CSO general population survey in 2010, 18% of respondents found cost of contraceptives to be an issue. Evidence to the Committee was that this can result in women not taking long-acting reversible contraceptive methods, even where this is the most suitable option for them, when the costs of these are outlined.
3.16 The Committee recommends the introduction of a scheme for the provision of the most effective method of contraception, free of charge and having regard to personal circumstances , to all people who wish to avail of them within the State.
Sex Education
3.17 The Committee is of the opinion that there is a clear link between effective sex education and lower levels of crisis pregnancies.
3.18 In that regard the Committee echoes the call from the Citizens Assembly for improvements in sexual health and relationship education in our schools and youth clubs. However the Committee was not, in the time available to it, in a position to delve deeply into the issue of sex education in our schools.
3.19 While the Committee notes the ongoing developments that are taking place in respect of relationship and sexuality education (RSE) and social, personal and health education (SPHE) in our schools, it has a specific concern in relation to what is happening at second level. The Committee’s concerns can be summarised as follows.
(a) For many schools, sex education is delivered as part of religious education.
(b) Many teachers are not comfortable teaching RSE and therefore it is left to a minority of teachers or it is outsourced to an agency.
(c) As the Committee understands matters, such agencies and their use by schools are not regulated and those delivering the course are not required to have a teaching qualification. It therefore appears to the Committee that any person can set up as an agency to deliver sex education.
(d) The ethos of the school can influence how RSE course content is delivered.
3.20 The Committee recommends a thorough review of sexual health and relationship education, including the areas of contraception and consent, in primary and post-primary schools, colleges, youth clubs and other organisations involved in education and interactions with young people. Sufficient time must be provided in the school’s curriculum to such education and that such information is imparted by suitably qualified personnel and that the information provided is impartial and factual and independent of school ethos.
Obstetric Care and Counselling
3.21 The Citizens Assembly ancillary recommendation in regard to a uniform standard of obstetrical care across the State arises from the regional inconsistency in service provision. Evidence to the Committee was that
(a) approximately 64% of women are offered the 20 week anomaly scans and that only seven of our nineteen maternity hospitals have 100% cover. The contrast with the UK and Holland, where there is almost 100% coverage for anomaly scans, is quite startling.
(b) the number of consultants in the area of obstetrics and gynaecology should be increased from 120 to 220 but it is proving difficult to fill positions in Ireland.
(c) there are significant gaps in perinatal mental health services in the State, viz.:
(i) There are only three perinatal psychiatrics operating in the State and all are attached to the maternity hospitals in Dublin.
(ii) There is no mother and baby unit in any hospital to cater for mothers who are depressed or who suffer from mental illness.
(iii) six of ther State’s 19 maternity hospitals do not have a clinical midwife specialising in bereavement.
(d) there are deficiencies in the area of antenatal and post-natal counselling and support services in the State. Of particular concern to the Committee is the operation of agencies who are not transparent as to the directive nature of their services.
3.22 The Committee recommends that
(a) all women should have access to the same standard of obstetrical care, including early scanning, testing and anomaly scans, irrespective of geographic location and having regard to socio-economic status,
(b) improvements should be made to counselling and support facilities for women during and after pregnancy, including post-termination, and
perinatal hospice services be made available to women who require them.
General
3.23 The Committee recommends that the appropriate sectoral committee or committees be charge explicitly charges with ensuring that early and ongoing visible progress is made in implementing the Committee’s ancillary recommendations.