The legal situation of abortion

Commissioner for Human Rights comments on abortion
– Release date: 30 April 2008

In his report published today the Council of Europe Commissioner for Human Rights has recommended that the Irish Government clarify the circumstances in which abortions can legally be carried out in Ireland. He recommends that this is done through statutory law in line with domestic jurisprudence.

Reacting to this an IFPA Spokesperson said, “The Commissioner is the latest in a long line of human rights experts to call for a clarification of the legal status of abortion in Ireland. Irish abortion laws needlessly puts the health and well being of thousands of Irish women at risk. A change in our abortion laws are well over due”.

Excerpts from the report that relate to abortion:

78. In relation to sexual and reproductive rights, it should be noted that since 1983 under the Irish Constitution the “right of the unborn” is guaranteed “with due regard to the equal right to life of the mother”.68 No legal definition or case law exists as to whether the “unborn” refers to the foetus at the point of viability, from the moment of conception or at some other point during pregnancy. Since the 1992 Supreme Court judgment in the X case,69 abortion is legal if the life of the woman is in danger. However, despite criticism of the constitutional provision in the judgement, there is still no legislation in place implementing the judgment and, consequently, no legal certainty when a physician may legally perform a life-saving abortion. In practice, abortion is largely unavailable in Ireland in almost all circumstances. Some NGOs argue that the legal limbo leads to a situation which disproportionately favours the interest of the foetus over the rights of pregnant women, thereby jeopardising women’s health and well-being and resulting in abortions performed illegally or abroad.70 During the visit, the Irish authorities informed the Commissioner that there were currently no plans to legislate for abortion on the grounds of the ‘X’ case.

79. Some civil society representatives advocate that access to abortion services should be granted to all women in the country, particularly when a woman’s health is at risk, she is pregnant as a result of rape or incest or there is evidence of severe foetal anomaly. There have also been calls to hold a referendum to offer the voters an opportunity to remove from the Constitution the 1983 Amendment and to clarify the language with regard to the ‘unborn’. Moreover, NGOs have underlined that certain vulnerable women, especially young and migrant women, have particular difficulties in accessing abortion services abroad. These concerns are illustrated by the case of 17 year-old Miss D from April 2007. When Miss D, who was placed in the care of the state by virtue of an interim care order, learned that she was carrying an anencephalic foetus, a fatal condition whereby a large part of the skull and the brain is missing, she wished to terminate her pregnancy but was prevented from travelling until a High Court decision allowed her to leave the country.71

80. The Commissioner is concerned that despite the already existing case law allowing for abortion under limited circumstances, no legislation is in place to ensure this happening in practice. This leads to serious consequences in each individual case but especially in such cases in which vulnerable women such as minors and migrants are concerned. In this context, he recalls the European Court’s judgment against Poland in which a violation of Article 8, the effective respect for private life, was found due to defective domestic abortion legislation.72 He urges the Irish authorities and the legislator to ensure that legislation is enacted to resolve this problem and that adequate medical services are provided in Ireland to carry out legal abortions in line with the jurisprudence of the Supreme Court.

19. Clarify the scope of legal abortions through statutory law in line with domestic jurisprudence and provide for adequate services for carrying out such abortions in Ireland.

Response of the Irish Government
The Government is satisfied that any medical treatment necessary to safeguard a woman’s life during pregnancy is available in Ireland. It has no plans to bring forward further constitutional or legislative proposals in relation to abortion.

Source: ifpa