Refused an abortion; how Ireland's legislation fails people with a foetal anomaly diagnosis
How government politicians can say that this is what people voted for in 2018 is beyond me.
Last week, news broke that a woman who received a diagnosis of a fatal foetal anomaly was refused a termination for medical reasons because doctors could not say for sure how long her baby would live if they survived birth. Raising the issue in the Dáil, People Before Profit - Solidarity TD Bríd Smith said,
“I just got off the phone in the last hour to a couple in my constituency who have a diagnosis at 22 weeks of a fatal foetal anomaly. They have a two-and-a-half-year-old child and, at a multidisciplinary team meeting this morning, they were refused a termination on the grounds of fatal foetal anomaly because it is "impossible", in the words of Marie O'Shea, who spoke to the health committee in October, to say how long that baby will live if it survived birth. Despite this we have a clause, section 11, in the legislation that will not allow for doctors to recommend a termination in very tragic circumstances.”
Section 11 of the Health (Regulations of Termination of Pregnancy) Act 2018 legislates for abortions in cases of a “condition likely to lead to death of foetus.” The section states,
“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.
(2) Of the 2 medical practitioners referred to in subsection (1)—
(a) one shall be an obstetrician, and
(b) the other shall be a medical practitioner of a relevant specialty.
(3) A termination of pregnancy shall not be carried out under this section unless each of the medical practitioners referred to in subsection (1) has certified his or her opinion as to the matters referred to in that subsection.
(4) The termination of pregnancy to which the certification referred to in subsection (3) relates shall be carried out—
(a) by the obstetrician referred to in subsection (2)(a), or
(b) where the medical practitioner referred to in subsection (2)(b) is also an obstetrician, by that obstetrician or the obstetrician referred to in subsection (2)(a).”
The second problem, which Deputy Smith also raised, is that while an individual cannot be criminalised for having an abortion — even outside the remit of the legislation — any person, including doctors, who helps them is breaking the law. Section 23 of the legislation states,
“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.”
Criminalising abortion in this manner creates a chilling effect on doctors and other medical professionals, whereby they are forced to pit their duty of care to patients and medical best practice against the risk of facing criminal sanctions.
This potential chilling effect was flagged as an issue by Doctors for Choice at the 7th Annual March for Choice while the legislation was being debated in 2018. Yet, in their insistence on sticking with the general scheme of legislation made available before the referendum to Repeal the Eighth Amendment, the Irish Government failed to take these warnings into account and ploughed ahead with criminalising abortion against World Health Organization guidance that abortion be decriminalised entirely. The World Health Organization also recommends against both grounds-based approaches to providing abortion access and the inclusion of gestational age limits in abortion legislation or regulations.
As I said in my column about the mandatory three-day waiting being a barrier to timely abortion access, politicians cannot keep clinging to what was in the general scheme of legislation five years ago, especially when presented with new evidence that their approach is not working for the very people they insisted would no longer have to travel abroad to have a termination for medical reasons.
And they have ample evidence. One participant in the Abortion Rights Campaign Too Many Barriers: Experiences of Abortion in Ireland after Repeal report shared their experience, “Although my baby would not survive, the multidisciplinary team at my hospital gave examples of situations like mine when a baby did survive past 28 days, although with huge defects.” Another respondent said, “I had to terminate for medical reasons. Our consultant said our case 100% warranted a termination and we also got a second opinion from [hospital] but the consultant here said he couldn’t be sure our baby would die within 28 days of birth and because I was 15 weeks he couldn’t help us.”
The HSE’s Unplanned Pregnancy and Abortion Care (UnPAC) study also includes experiences of people being denied an abortion following a fatal foetal anomaly because multidisciplinary teams of doctors could not certify that where a baby survived birth, their condition would lead to death within the required 28 days. Figures from the UK Department of Health show that 206 pregnant people from Ireland travelled to England or Wales for an abortion in 2021. The proportion of abortions carried out under Ground E — serious foetal anomalies — increased “from 32% in 2020 to 50% in 2021”.
The Independent Review of the Operation of the Health (Regulation of Termination of Pregnancy) Act 2018, published earlier this year, recommends that Section 23 of the legislation “be amended to remove medical practitioners from its scope.” That is, doctors and medical professionals should not be criminalised for providing abortions. The report also calls on the Department of Health to review the legislation regarding Section 11, “noting that there is not a universal agreed list of conditions where death in utero or within 28 days of birth is guaranteed for many foetal conditions.”
As yet another woman and her partner needed to contact their local TD and go public — while maintaining their anonymity — to seek support after being denied an abortion, will the government finally accept that the legislation is fundamentally flawed? No one denies that access to abortion increased following the 2018 referendum and the implementation of the Health (Regulation of Termination of Pregnancy) Act in January 2019. However, too many pregnant people and their families continue to be failed by the legislation. It is long past time the Irish Government not only accepted that but changed the legislation so that abortion is available to everyone who needs one, no matter where they are in their pregnancy.
In writing this week’s column, I have quoted legislation and numerous reports about Ireland’s legislation because it is crucial to understand why people who receive a diagnosis of a fatal foetal anomaly may still be denied an abortion. It is also vital that we remember that behind every story is a pregnant person and their family, who, upon receiving life-changing news, discover that their doctors cannot provide the medical care they need.
While these stories are shared anonymously for numerous reasons, they are real people dealing with the added pressure of having to leave the country for healthcare they should be able to receive at home. In this case, the woman and her partner must make decisions about travelling over Christmas while also caring for their two-and-a-half-year-old child.
How government politicians can say that this is what people voted for in 2018 is beyond me.
But What Can I Do?
In Ireland, share the Christmas and New Year opening hours of the MyOptions helpline.
In Ireland, email your TDs about the need to implement the recommendations of the independent review of our abortion legislation.
The Abortion Rights Campaign created a template — Email your TDs about the Review Recommendations.
Here is a list of their email addresses, divided by constituency — TDs 2023 email addresses.
You can read the independent report here — The Independent Review of the Operation of the Health (Regulation of Termination of Pregnancy) Act 2018.
Donate to abortion funds
In Europe, donate to Supporting Abortions for Everyone (SAFE), Abortion Support Network, Aborcyjny Dream Team, Abortion Network Amsterdam, and Abortion Without Borders.
In the US, the National Network of Abortion Funds lists funds in every state — donating here means your donation supports 90+ organisations.
Share information on how to access abortions
In Ireland, if you are pregnant and do not want to be, or someone you know needs an abortion, the HSE’s MyOptions service will help you find your nearest provider. Freephone 1800 828 010.
The Abortion Rights Campaign has written a blog post about how the legislation works and on what grounds abortion is permissible after the 12-week on-request period has passed — Need an abortion?
In Northern Ireland, Alliance for Choice Belfast and Alliance for Choice Derry have shared information on accessing abortion services in the North.
Alliance for Choice Belfast — I Need An Abortion Now.
Alliance for Choice Derry — Abortion Help.
In Northern Ireland, Lucht Cabhrach Abortion Doulas provide support at home before, during or after your abortion.
Phone 07397 902774 or email abortion@luchtcabhrach.com — What are doulas?
Email allianceforchoicederry@gmail.com to contact Alliance for Choice Derry’s abortion doulas — Our Abortion Doulas.
The Irish Family Planning Association (IFPA) created a guide for supporting someone through an early medical abortion — Supporting someone through their abortion and Supporting someone through their abortion (Leaflet).
Alliance for Choice Derry has gathered information on identifying whether an unplanned or crisis pregnancy service is legitimate or a rogue agency or clinic. While their post focuses on Northern Ireland and Ireland, these tactics are used globally by anti-abortion groups — What is a Rogue Clinic?
In Malta, the Abortion Doula Support Service is a free information service by pro-choice doctors offering advice and support to people needing an abortion — Abortion Doula Support Service.
In Poland, Abortion Dream Team provides advice and support for people seeking abortions, whether at home with abortion pills or travelling abroad for abortion care — Abortion Dream Team.
In the US, ineeda.com provides up-to-date information on how to get an abortion.
Share information on how to access contraception and STI testing
In Ireland, free prescription contraception is available for women, girls, trans and non-binary people aged 17 to 30 (will include 31-year-olds from January 2024) — How to access the free contraception scheme.
In Ireland, free STI testing is available at home from SH:24 — Order your free at-home STI tests.
“This targeting happens even in cases and places, like Watts’ in Ohio, where legal statute forbids charging people for what happens during their pregnancies. Not only did a police officer outright lie to Watts in her hospital room, telling her she wasn’t in any trouble, but the reason he was there in the first place was due to a police report made by Watts’ nurse. Indeed, it is often the very medical professionals tasked with protecting and caring for pregnant people who report them to law enforcement despite there being no legal obligation (or medical need) to do so.” — Prosecuted for a miscarriage: Ohio demonstrates the ghoulishness of post-Roe America [MSNBC]
“In a letter to the High Court, Mayo University Hospital unreservedly apologised for "the failings in the standard of care provided at the hospital", including the poor communication and updates provided during the time that Ms Nayyab Tariq was in the operating theatre.” — Man whose wife died hours after delivering baby settles action for €1.9m [Breaking News]
“St Luke’s General Hospital, Kilkenny, offered “sincere and heartfelt apologies” to Clive Corrigan and extended family for the “devastating outcome and loss” of his wife Dorcas and his unborn son Bill five years ago.” — Hospital apologises for failings in care to mother and unborn son who died [Irish Examiner]
“Campaigners are attempting to highlight a "lack of standards" in Irish maternity care, following the deaths of 21 babies over the past decade.” — Deaths Of 21 Babies In Past Decade Sparks Campaign To Highlight "Lack Of Standards" In Maternity Care [Midlands 103]
“To address the complexity of terminating a pregnancy in this context, Catholics for the Right to Decide created a spiritual accompaniment group. The team is led by theologians and faith leaders — among them, a Presbyterian and a Lutheran pastor — who listen and comfort women who struggle to reconcile their faith with their decision to get an abortion.” — Catholic activists in Mexico help women reconcile their faith with abortion rights [AP News]
“At the inquest in September, the HSE said the review would be complete in October, but two months on, the family’s solicitor says they’re still waiting for the report.” — External review yet to be completed into death of woman following childbirth at UHK [Radio Kerry]
“Poland’s 2020 abortion legislation violated the rights of a woman who was forced to travel abroad to access an abortion, the European court of human rights ruled on Thursday.” — Poland violated human rights of woman in abortion case, European court rules [The Guardian]
“Academics from the UK, US and Sri Lanka said the condition is caused by exposure to the hormone GDF15 being produced by babies in the womb, with the severity of illness resting on how sensitive the mother is to the hormone.” — Study pinpoints cause of severe sickness during pregnancy [The Journal]
“Given Wednesday’s news, mifepristone will remain approved. The only question at this point is on what terms it will be available. That is still an essential question, particularly in this post-Roe landscape but — given the Fifth Circuit’s decision — it is, again, the best-case scenario for abortion rights supporters here.” — Supreme Court takes up cases over eased access to medication abortion drug [Law Dork︱Substack]
“I spent a lot of time loudly advocating for reproductive justice after my abortion, but over time I got increasingly quiet. The world has been changing. It doesn’t feel safe to admit you support abortion, let alone admit that you’ve had one. This poisonous perception and rejection of abortion is contaminating our collective consciousness, creeping into our individual psyches.” — I Have Never Regretted My Abortion [Open Secrets︱Substack]