The Protection of Life during Pregnancy Bill 2013 ("the Bill") was published on 13 June 2013 amidst much controversy. The Bill seeks to give statutory effect to the 1992 decision of the Supreme Court in Attorney General v X & Others ("the X Case") and thereby clarify the law relating to termination of a pregnancy in Ireland.
Termination of a pregnancy and the Irish Constitution
The right to life of the unborn is enshrined in Article 40.3.3 of the Constitution and it operates to protect the fetus from the time of implantation in the womb until birth. However, there are exceptional circumstances in which this right to life can lawfully be infringed through a termination of the pregnancy. In the X Case, the Supreme Court set out a two pronged test stating that the life of the unborn can be terminated where there exists, as a matter of probability, (1) a real and substantial risk to the life, as opposed to the health, of the mother which need not be inevitable or immediate and (2) that the risk in question is avoidable only by terminating the pregnancy. A termination is only permissible where both limbs of the test are satisfied. In 2010, Ireland was found to be in breach of the European Convention on Human Rights for failing to provide an effective and accessible method for women to determine if they are entitled to have a termination. The European Court of Human Rights essentially upheld the State's autonomy in formulating policy but stated that any recognised grounds for a termination must be clarified through legislation.
Brief overview of the Bill
There are three scenarios envisaged by the Bill where termination of the pregnancy may be permissible. Those scenarios are: a medical emergency; physical illness; and suicide. The Bill effectively prescribes an ascending scale of medical scrutiny in the certification of risk to the life of the mother in each case. In cases of medical emergency, the opinion of one registered medical practitioner is required to certify the procedure. In the context of physical illness, a committee consisting of two medical practitioners, one of whom must be an obstetrician or gynaecologist registered in the specialist division of the register of medical practitioners, must unanimously certify the risk in good faith. Where the risk to the life of the mother emanates from suicide, the unanimous opinion of a three party committee comprising one obstetrician and two psychiatrists must be obtained. All...