Protection of Conscience Project
Protection of Conscience Project
www.consciencelaws.org
Service, not Servitude

Service, not Servitude
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Health (Regulation of Termination of Pregnancy) Act 2018

Conscientious objection and related matters

Introduction:

The Health (Regulation of Termination of Pregnancy) Act 2018 [full text] became law in on 1 January, 2013It repealed and replaced the Protection of Life During Pregnancy Act 2013.

The protection of conscience provision is provided here in full within an abbreviated presentation of the entire act.  Key definitions and provisions are included.  Paraphrased parts of the law are in italics.

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Part 1:  PRELIMINARY AND GENERAL
Short title and commmencement (section 1)
Definitions

2.    In this Act—

. . .

“foetus”, in relation to a pregnancy, means an embryo or a foetus during the period of time commencing after implantation in the uterus of a woman and ending on the complete emergence of the foetus from the body of the woman;

“medical practitioner” means a medical practitioner who is for the time being registered in the register;

. . .

“termination of pregnancy”, in relation to a pregnant woman, means a medical procedure which is intended to end the life of a foetus;

“woman” means a female person of any age.

Regulatory and administrative provisions (sections 3 to 7)

Sections 3 to 6 concern the power to make regulations, authorization of administrative expenses, repeal of existing statutes, and enact transitional provisions.  Section 7 requires the Minister of Health to review the operation of the Act after three years.


PART 2: TERMINATION OF PREGNANCY
Definitions

8.    In this Part -

“appropriate medical practitioner”, in relation to a medical practitioner and his or her assessment of the risk to the life, or of serious harm to the health, of a pregnant woman, means a medical practitioner appropriate to the care or treatment of the woman in respect of the risk;

. . .

“health” means physical or mental health;

. . .

viabilitymeans the point in a pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of survival outside the uterus without extraordinary life-sustaining measures.

Risk to life or health

9.    (1)  A termination of pregnancy may be carried out in accordance with this section where 2 medical practitioners, having examined the pregnant woman, are of the reasonable opinion formed in good faith that—

(a)    there is a risk to the life, or of serious harm to the health, of the pregnant woman,

(b)    the foetus has not reached viability, and

(c)    it is appropriate to carry out the termination of pregnancy in order to avert the risk referred to in paragraph (a).

Subsections 9(2) to (4) the Act require at least one of the involved practitioners to be an obstetrician, that both practitioners involved certify their opinions in writing before the procedure, and that an involved obstetrician perform the abortion.    

Risk to life or health in emergency

10.    (1)  Notwithstanding the generality of section 9 , or any determination made or pending pursuant to section 16 of an application under section 13 (2), a termination of pregnancy may be carried out in accordance with this section by a medical practitioner where, having examined the pregnant woman, he or she is of the reasonable opinion formed in good faith that—

(a)    there is an immediate risk to the life, or of serious harm to the health, of the pregnant woman, and

(b)    it is immediately necessary to carry out the termination of pregnancy in order to avert that risk.

Subsection 10(2) requires the practitioner involved to certify his opinion in writing in advance if practictable, and, if not, then within three days of having carried out the procedure.

Condition likely to lead to death of foetus

11.    (1)  A termination of pregnancy may be carried out in accordance with this section where 2 medical practitioners, having examined the pregnant woman, are of the reasonable opinion formed in good faith that there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before, or within 28 days of, birth.

Subsections 11(2) to (4) the Act require at least one of the involved practitioners to be an obstetrician, that both practitioners involved certify their opinions in writing before the procedure, and that an involved obstetrician perform the abortion.    

Early pregnancy

12.    (1)  A termination of pregnancy may be carried out in accordance with this section by a medical practitioner where, having examined the pregnant woman, he or she is of the reasonable opinion formed in good faith that the pregnancy concerned has not exceeded 12 weeks of pregnancy.

(2)    A termination of pregnancy shall not be carried out under this section unless the medical practitioner referred to in subsection (1) has certified his or her opinion as to the matter referred to in that subsection.

(3)    The termination of pregnancy shall not be carried out by a medical practitioner unless a period of not less than 3 days has elapsed from—

(a)    the date of certification under subsection (2) by that medical practitioner, or

(b)    where a certification was previously made in respect of the pregnancy by another medical practitioner for the purposes of subsection (2), the date of that previous certification.

 (4)    A termination of pregnancy to which the certification referred to in subsection (2) relates shall be carried out as soon as may be after the period referred to in subsection (3)(a) or (b), as the case may be, has elapsed but before the pregnancy has exceeded 12 weeks of pregnancy.

(5)    For the purposes of this section, “12 weeks of pregnancy” shall be construed in accordance with the medical principle that pregnancy is generally dated from the first day of a woman’s last menstrual period.

Review of medical opinion (sections 13-18)

Sections 13 to 17 concern the procedures for appealing an opinion by a medical practitioner that effectively prevents an abortion from being performed.  Section 18 requires the government to report annually on reviews conducted under these sections.

Certification and notification (sections 19-20)

Sections 19 and 20 concern the content of certificates required by the act and records keeping.


 PART 3: MISCELLANEOUS
Consent

21.    Nothing in this Act shall operate to affect any enactment or rule of law relating to consent to medical treatment.

Conscientious objection

22.    (1)  Subject to subsections (2) and (3), nothing in this act shall be construed as obliging any medical practitioner, nurse or midwife to carry out, or to participate in carrying out, a termination of pregnancy in accordance with section 9 , 11 or 12 to which he or she has a conscientious objection.

(2)    Subsection (1) shall not be construed to affect any duty to participate in a termination of pregnancy in accordance with section 10 .

(3)    A person who has a conscientious objection referred to in subsection (1) shall, as soon as may be, make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the termination of pregnancy concerned.

(4)    In this section—

“Act of 2011” means the Nurses and Midwives Act 2011 ;

“midwife” means a person whose name is for the time being registered in the midwives division of the register of nurses and midwives, or the midwife candidate division of the candidate register, established under section 46 of the Act of 2011;

“nurse” means a person whose name is for the time being registered in the nurses division of the register of nurses and midwives, or a division (other than the midwife candidate division) of the candidate register, established under section 46 of the Act of 2011.

Offences

23.    (1) It shall be an offence for a person, by any means whatsoever, to intentionally end the life of a foetus otherwise than in accordance with the provisions of this Act.

(2)    It shall be an offence for a person to prescribe, administer, supply or procure any drug, substance, instrument, apparatus or other thing knowing that it is intended to be used or employed with intent to end the life of a foetus, or being reckless as to whether it is intended to be so used or employed, otherwise than in accordance with the provisions of this Act.

(3)    Subsections (1) and (2) shall not apply to a pregnant woman in respect of her own pregnancy.

(4)    It shall be an offence for a person to aid, abet, counsel or procure a pregnant woman to intentionally end, or attempt to end, the life of the foetus of that pregnant woman otherwise than in accordance with the provisions of this Act.

(5)    A person who is guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years, or both.

(6)    A prosecution for an offence under this section may be brought only by or with the consent of the Director of Public Prosecutions.

(7)    Nothing in subsection (4) shall operate to prevent or restrict access to services lawfully carried out in a place outside the State.

Offence by body corporate (section 24)
Prohibition against receiving special benefits or advantages (section 25)
Amendments to other legislation (sections 26-29)

Amends the Health Act 1970, Nursing Homes Support Scheme Act 2009, Health (Pricing and Supply of Medical Goods) Act 2013 and Bail Act 1997.