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Protection of Conscience Project

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Archived Material

Proposed Protection of Conscience Laws

Ireland

Introduction:

In response to criticism following the death of Savita Halappanavar the Irish government has published an early draft of the proposed abortion law, the Protection of Life During Pregnancy Bill 2013.  It is technically called a draft "heads of bill."  Each "head" corresponds to what is likely to become a section of the final bill, but the wording and content of each head have not been settled.

The protection of conscience provision (Head 12) is provided here in full within an abbreviated presentation of the General Scheme.  Paraphrased parts of the bill are in italics.  Mouseover the red text to see government comments accompanying the text.  [Full text of General Scheme]

The "heads of bill" was superseded in June, 2013, with the official, which became law in July, 2013

General Scheme

Protection of Life During Pregnancy Bill 2013

Head 1: Interpretation

(1)  In this Act -

. . . "implantation""This definition aims to exclude the treatment of ectopic pregnancies and emergency contraception from the scope of the bill." means implantation in the womb of woman;

"medical procedure" includes the provision of any drug or any medical treatment;

. . . "reasonable opinion"". . .this opinion must be formed in good faith and must have regard to protect and preserve unborn human life where practicable. . .[places] a duty on certifying medical practitioners to preserve the life of the unborn as far as practicable. . ." means an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable;

. . . "unborn""The definition . . . is based on the Supreme Court judgement in Roche v. Roche [et al] which deemed that embryos acquire legal protection under Article 40.3.3 of the Constitution only from the moment of implantation. This definition. . .protects the foetus from implantation until birth. . ."as it relates to human life means following implantation until such time as it has completely proceded in a living state from the body of the woman. . ."

Head 2:  Risk of loss of life from physical illness, not being a risk of self-destruction

This part of the Act provides that two medical practitioners may certify". . . the general scheme is silent on how the certification may come about. Clinical scenarios where the X case criteria might apply are bound to be complex. . .it was felt not desirable to provide in legislation for a specific referral pathway. Rather, it is deemed that standard medical practice will provide an appropriate mechanism for the process . . .[I]t is important that professional guidance is developed by the relevant professional Colleges for their members on the operation of this legislation. . ." that an abortion is required because:

" (i) there is a real and substantial risk"The Supreme Court judgement in the X case indicated that it is not necessary for medical practitioners to be of the opinion that the risk to the woman's life is inevitable or immediate, as this approach insufficiently vindicates the pregnant woman's right to life. . .In circumstances where the unborn may be potentially viable outside the womb, doctors must make all efforts to sustain its life after delivery. However, that requirement does not go so far as to oblige a medical practitioner to disregard a real and substantial risk to the life of the woman on the basis that it will result in the death of the unborn. Essentially the decision to be reached is not so much a balancing of the competing rights- rather, it is a clinical assessment as to whether the mother's life, as opposed to her health, is threatened by a real and substantial risk that can only be averted by a termination of pregnancy." of loss of the pregnant woman's life other than by way of self-destruction, and"

"(ii) in their reasonable opinion this risk can be averted only by that medical procedure."

Head 3: Risk of loss of life from physical illness in a medical emergency

This part of the Act provides that a medical practitioner may carry out a medical procedure (including abortion) that may cause the death of an unborn child when

"(b) he or she in good faith believes that there is an immediate risk"Doctors should not be prevented from saving a woman's life in a situation of acute emergency, because, for example, the required number of doctors are not available to certify or the woman in question arrives at a health facility that is not covered as an appropriate location under the bill. . ." of loss of the pregnant woman's life other than by way of self-destruction , and"

"(c) the medical procedure is, in his or her reasonable opinion, immediately necessary to save the life of the woman.

Afterward, the medical practitioner is required to certify". . .the medical practitioner . . . will be required to certify the reasons for his/her actions, and notification of all emergency terminations will be sent to the Minister. . ." the need for the procedure.

Head 4: Risk of loss of life from self-destruction

Where a woman is threatening to commit suicide if abortion is not provided, the bill requires that she be examined by one obstetrician/gynaecologist and two psychiatrists, who must "jointly certify". . . the general scheme is silent on how the certification may come about. Clinical scenarios where the X case criteria might apply are bound to be complex. . .it was felt not desirable to provide in legislation for a specific referral pathway. Rather, it is deemed that standard medical practice will provide an appropriate mechanism for the process . . .[I]t is important that professional guidance is developed by the relevant professional Colleges for their members on the operation of this legislation. . ." " that:

"(i) there is a real and substantial risk". . .It is not necessary for medical practitioners to be of the opinion that the risk to the woman's life is inevitable or immediate, as this approach insufficiently vindicates the pregnant woman's right to life. . ." of loss of the pregnant woman's life by way of self-destruction, and"

"(ii) in their reasonable opinion this risk can be averted only by that medical procedure."

The Act also requires that at least one of the three members of the panel must consult the woman's general practitioner.

Head 5:  Medical opinion to be in the form and manner prescribed by the Minister

The Minister of Health is authorized to determine the content of the certificates required by the Act.

Head 6:  Formal Medical Review Procedures
Head 7:  Review where risk arises from physical illness, not being a risk of self-destruction
Head 8:  Review in case of risk of loss of life through self-destruction
Head 9:  General provisions for Commitee
Head 10:  Formal medical review reports to Minister

These sections provide for an appeal procedure (medical review) when a woman has been denied an abortion in the case of physical illness not involving a threat to commit suicide (Head 2), or of a threat to commit suicide (Head 4), and for annual reports to the Minister of reviews conducted.

Head 11:  Notifications

The person in charge of a facility where abortions are performed under the Act is required to notify the Minister of Health within 28 days of the procedure.  Names of the women having abortions are not to be included in the notifications.

Head 12:  Conscientious Objection

Provides that

(1) Nothing in this Bill shall be construed as obliging any medical practitioner, nurse or midwife". . . this right only applies to medical and nursing personnel and pharmacists." to carry out, or to assist in carrying out, a lawful termination of pregnancy.

(2)  Nothing in subhead (1) shall affect any duty to participate in treatment under Head 4.

(3) No institution, organisation or third party shall refuse to provide a lawful termination of pregnancy to a woman on grounds of conscientious objection.

(4)  In the event of a doctor or other health professional having a difficulty in undertaking a required medical procedure, he or she will have a duty to ensure that another colleague takes over the care of the patient as per current medical ethics.

Notes:

Article 9(1) of the European Convention on Human Rights states that: "everyone has the
right to freedom of thought, conscience and religion…'. An individual's right to conscientious objection is provided for in most ethical guidelines and has existed with good reason for many centuries. The Medical Council Ethical Guidelines state:

'10.2 If you have a conscientious objection to a course of action, you should explain
this to the patient and make the names of other doctors available to them.

10.3 Conscientious objection does not absolve you from responsibility to a patient in emergency circumstances.'5

Similarly, the Code of Conduct for each Nurse and Midwife makes reference to an
entitlement to conscientious objection that may be relevant to professional practice6.

However, an individual's right to conscientious objection is not absolute and often has
limitations. This is because the right to conscientious objection must be balanced against
someone else's competing rights, for example, the right to life in the case of a medical
emergency. The balance is reflected by the provisions of the European Convention on
Human Rights in which freedom of conscience is qualified by Article 9(2), "Freedom to
manifest one's religion or beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the rights and freedoms of others".

Subhead 1 provides a right to conscientious objection but clarifies that this right only applies to medical and nursing personnel and pharmacists. It is adapted from section 3I.E. "3.-Nothing in this Act shall be construed as obliging any person to carry out, or to assist in the carrying out of, any medical procedure referred to in section 1 of this Act." [Administrator] of the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill 2001 as passed by Dáil Éireann. The effect of this provision is that a medical or other health professional will not be obliged to carry out a procedure to which he or she has a
conscientious objection, even though it may not constitute an offence under the Bill. In the event of a doctor or other health professional having a difficulty in undertaking a required medical procedure, he or she will have a duty to ensure that another colleague took over the care of the patient as per current medical ethics.

5. Medical Council: 2009, pg. 16.

6.  An Bord Altranais, 2000.

Head 13:  Travel and information

No restrictions are to be placed on travel to other countries for abortion or the provision of information concerning abortion legally available elsewhere.

Head 14:  Regulations
Head 15:  Regulations respecting certification of opinions referred to in this Act.
Head 16:  Regulations respecting notifications to the Minister
Head 17:  Laying of regulations before Houses of the Oireachtas
Head 18:  Repeal and Consequential Amendments

Sections of the Act provide for regulations to be issued and amendments to other laws to ensure the consistency of the law.

Head 19:  Offence

Provide that

(1)  It shall be an offence for a person to do any act with the intent to destroy unborn human life.

(2) A person who is guilty". . .The penalty of up to 14 years imprisonment may apply to any person, including the pregnant woman. While it is recognised that the potenetial criminalisation of a pregnant woman is a very difficult and sensitive matter, this provision reflects the state's constitutional obligation arising from Article 40.3.3. It would also be inequitable to have. . . a significant penalty for the person performing a termination but none at all for the woman undergoing the procedure. The sentence to be applied in any particular case is a matter for the Court involved." of an offence under this head is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years or both . . .

 

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