Health Minister says decision on expert group report on abortion will be made before the end of the year

Wednesday 28 November 2012 10.40
The report of the expert group on abortion has been published by the Department of Health
The report of the expert group on abortion has been published by the Department of Health

The Government is to decide next month on which option put forward by the expert group on abortion to implement.

The report, which favours legislation along with regulation as the safest way to provide legal clarity in the area, was published this afternoon after being considered by the Cabinet.

The Government plans to have three days of hearings before the Oireachtas Health Committee in advance of the Dáil resuming in the New Year.

Minister for Health James Reilly said there would also be a full Dáil debate on the issue.

The 58-page report sets out options for the implementation of the European Court of Human Rights judgment in the A, B and C v Ireland case.

The report examines a number of options, those of non-statutory guidelines, statutory regulations, legislation alone and legislation and regulations together, and sets out the advantages and disadvantages of each.

The option with the least disadvantages, according to the report, was that of legislation combined with regulations.

According to the report, such an approach "fulfils the requirements of the judgment, it provides for appropriate checks and balances between the powers of the legislature and the executive and would be amenable to changes that might arise out of clinical practice and scientific advances".

The only disadvantage cited in the report in taking this approach was the period of time "drafting and democratic scrutiny" would take.

In the case of non-statutory guidelines the report said "an argument can be made that guidelines in isolation do not fulfil all the requirements set by the European Court of Human Rights judgment".

The report said that regulations issued by the Minister for Health would require enabling legislation, and for that reason this option was "not likely to prove a speedier or superior solution than other legislative options".

While in the case of legislation alone, it was considered that "postulating all the details of the assessment and review process in primary legislation might be too rigid an approach".

In cases where there a real and substantial risk to the life of the mother is suicidal intent, the report said "the role of the psychiatrist is key”.

"There are recognised clinical challenges in correctly diagnosing expressed suicide intent" the report said, adding that it could be argued that it is a more subjective process and requires more safeguards.

On where abortions could take place, the report said that "ultimately the locations should be certified by the Minister for Health or other appropriate health control agency."

It added that, consistent with the State's obligations to defend and vindicate the right to life of the unborn, "terminations at the fringes of viability, even when survival is not anticipated, should take place in medical facilities with neonatal intensive care units."

Speaking in the Dáil, Taoiseach Enda Kenny said the Government has not yet decided on which option contained in the report it will be supporting.

Cabinet discussed report before release

The report was discussed by the Cabinet this morning.

Afterwards, Minister Reilly thanked members of the group for their contribution in bringing clarity to what he described as a complex and sensitive issue.

Speaking to RTÉ, Tánaiste Eamon Gilmore urged people to study the report and reiterated that Labour favoured new legislation.

Another senior Fine Gael minister said legislating for suicidal women who seek a termination would cause problems for some party backbenchers.

He said people would be surprised by how quickly the Government would now move, predicting a vote on abortion legislation as early as February.

The report also examined the procedures for determining the risk to life of a woman, and said that" doctors are considered the only appropriate decision-makers in the matter".

The report examined a number of options, including two doctors with a relevant speciality, two doctors one of whom is an obstetrician, and two doctors of a relevant speciality plus an obstetrician.

However, in the case of emergencies, the report found "where the risk to life of the woman is imminent and inevitable, rather than real and substantial, (a doctor) should not have any liability because of failure to follow prescribed procedures".

On whether or not special provision should be made for such emergencies, the report found that failing to do so "could have a 'chilling effect' on doctors worried about exposing themselves to the risk of criminal prosecution under the 1861 Act".

A woman's right to appeal

According to the report, Ireland is obliged to put in place an accessible, effective and timely review mechanism.

This would facilitiate a woman to appeal where she has been refused access to a termination, or where the doctors treating her are in dispute or are unable to reach a diagnosis.

It considered both medical and legal models, but found the latter "was discordant with the principle that the core issue to be determined is a medical one." It also found that such a model would be "cumbersome, costly and might interfere with the urgent delivery of life-saving medical treatment."

However the expert group explored including a lawyer on a review panel, giving a panel access to legal expertise on a formal basis and making no specific provision for access to legal advice, and set out the pros and cons of each.

In the case of a negative decision by a review panel, the report set out a woman's constitutional right to access the Courts.

Reaction

Choice Ireland has called on the Government to act immediately on the options set out in the report.

Spokesperson for the organisation Stephanie Lord said: "It is obvious from the options set out in the report that the Government are left with no option now but to legislate to provide lawful abortions for women where they have life threatening conditions.

“The Government did not need an Expert Group to tell them this but now that they have, it should be acted on immediately.

"Choice Ireland is calling for cross-party support for Deputy Clare Daly's Bill, which will be heard in the Dáil tonight and tomorrow, allowing for abortion under those circumstances.

“The Government should allow this legislation to proceed as an emergency measure. It would still allow them to reflect on the options provided in the Expert Group report."

Meanwhile, the Pro Life Campaign has said that it does not support legislation or statutory regulations on abortion in line with the expert group report published today.

Speaking on RTÉ's Drivetime, Deputy Chairperson of the Pro Life Campaign Cora Sherlock said that either of these options" would leave us in a very difficult situation”.

Ms Sherlock said that the X case was a "deeply flawed judgment," and that it should not be legislated for.

Instead, the Pro Life Campaign is advocating for guidelines.

Ms Sherlock said that the Pro-Life Campaign has consistently supported women receiving whatever medical treatment they need during pregnancy, while at the same time protecting the life of her unborn child, as far as is practicable.

"On the one hand you have abortion where there is never an intention to save the life of the baby, the only intention is to end the life of the baby and there's no treatment being given to the mother.

“On the other hand you have medical treatment which may have the unwanted side effect of ending the life of the unborn child. But that is an unwanted side effect. It is not something that anyone wishes for and it is deeply regretted when it happens.

“That is what the majority of people in this country have said in consistent independent opinion polls that they support, and that will not be achieved through legislation or regulation," Ms Sherlock said.

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