Chapter 3 The State's Obligations under International and EU Law
Chapter 4 Other Grounds for Abortion, set in an International Context
Chapter 5 The Submissions to the Interdepartmental Working Group
Chapter 6 The Social Context
Chapter 7 Possible Constitutional and Legislative Approaches
Glossary of Medical Terms
Appendix 1 Extracts from documents referred to in Terms of Reference 130
Appendix 2 Statistics on Irish women who have had abortions in England 132 and Wales
Appendix 3 The Law Relating to Abortion in Selected other Jurisdictions 135
Appendix 4 Submissions Received 155
Appendix 5 Extract from Report of the Constitution Review Group 158
Abortion is an issue which has been the subject of intense and, indeed, divisive debate in practically every society. Over the past fifteen years or so, this debate has been particularly intense and divisive in this country.
In 1983, following a vigorous campaign by a number of groups who felt that there should be a specific constitutional prohibition on abortion, an amendment was made to the Constitution which sought to give effect to that aspiration. There was, however, at the time the contrary view that the Constitution already contained sufficient safeguards in relation to abortion and that the amendment was unnecessary and could possibly lead to ambiguities.
In 1992, a case, which has become known as the X case, came before the Supreme Court where it was decided that, under the Constitution, abortion is permissible in the State where the continuation of the pregnancy poses a real and substantial risk to the life, as opposed to the health, of the mother and where such a risk could not be averted except by means of an abortion. A substantial risk to the life of the mother included a risk of suicide. This decision and its implications have been vigorously debated.
The X case concerned a minor who became pregnant as a result of a criminal offence and both she and her parents wished her to have an abortion in England. Since the Abortion Act of 1967 in England and Wales, at least 95,000 women giving an address in this country have had abortions there. Following concerns raised by the X case and in the light of a ruling by the European Court of Human Rights in relation to the provision of information, amendments were inserted into the Constitution in 1992 which provided that the freedom to travel abroad should not be limited and that information on abortion services abroad should be obtainable in legally defined circumstances. At the same time, a proposed amendment to deal with the substantive issue of the X case but excluding the risk of suicide was rejected by the electorate. The implications of this case are discussed more fully in Chapter 2.
The current situation therefore is that, constitutionally, termination of pregnancy is not legal in this country unless it meets the conditions laid down by the Supreme Court in the X case; information on abortion services abroad can be provided within the terms of the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995; and, in general, women can travel abroad for an abortion.
There are strong bodies of opinion which express dissatisfaction with the current situation, whether in relation to the permissibility of abortion in the State or to the numbers of women travelling abroad for abortion.
Various options have been proposed to resolve what is termed the "substantive issue" of abortion but there is a wide diversity of views on how to proceed. The Taoiseach indicated shortly after the Government took office in 1997 that it was intended to issue a Green Paper on the subject. The implications of the X case were again brought sharply into focus in November 1997 as a result of the C Case, and a Cabinet Committee was established to oversee the drafting of this Green Paper, the preparatory work on which was carried out by an interdepartmental group of officials.
While the issues surrounding abortion are extremely complex, the objective of this Green Paper is to set out the issues, to provide a brief analysis of them and to consider possible options for the resolution of the problem. The Paper does not attempt to address every single issue in relation to abortion, nor to give an exhaustive analysis of each. Every effort has been made to concentrate on the main issues and to discuss them in a clear, concise and objective way.
Submissions were invited from interested members of the public, professional and voluntary organisations and any other parties who wished to contribute. It was hoped that the submissions would help to inform the Group about the matters which are of public concern, and to identify possible options for resolving them. There was an unprecedented response of over 10,000 submissions, with further petitions containing some 36,500 signatures. The Government would like to thank all of those who submitted their views. Some of the submissions were very detailed and the authors had clearly given considerable thought to the issue. A wide range of views was expressed on what is clearly a matter of great concern to many people, as well as one which involves a significant number of Irish women every year making a difficult and often lonely decision to have an abortion abroad. It is important to stress that the purpose of inviting submissions was to inform the process of the preparation of the Green Paper on the range of issues surrounding the debate on abortion and to obtain the views of individuals and organisations thereon and not to conduct a plebiscite or a weighing of public opinion on the course of action the Government should take. While mindful of the submissions received, the Government has been anxious to discuss the range of views and arguments contained in the submissions as a whole, unpalatable though some may be to many people.
Very few medical bodies or organisations made submissions. While the Government recognises that, as with society generally, members of these bodies have a range of views on the issue, it nonetheless considers that it would be helpful to have the benefit of the opinions and expertise of their memberships on the abortion issue.
The broad approach to the preparation of the Green Paper has been twofold. In the first place the constitutional and legal issues raised by the court cases referred to in the terms of reference, and the possible options for addressing these, are discussed. However, the Government has been concerned to recognise that the cases which were the subject of these legal proceedings were not representative of the majority of cases in which Irish women decide to travel abroad to have an abortion. A significant number of submissions placed the issue in a wider social context and the Green Paper also discusses factors which have been identified as coming within this category.
In Chapter 1 of the Green Paper the medical issues which arise in relation to the treatment of pregnant women and which form part of the debate on abortion are discussed. Chapter 2 deals with the legal issues raised by the courts' interpretation of the Constitution and the law in relation to abortion. Chapter 3 details Ireland's obligations under international and European Union law and considers what implications these obligations might have for constitutional or legal change in relation to abortion. Wider grounds for abortion are examined in an international context in Chapter 4. A summary of the issues raised in the submissions received is contained in Chapter 5. Chapter 6 discusses the social context of abortion. Possible constitutional and legislative approaches to addressing the issues identified in the Green Paper are discussed in Chapter 7.
The text of this Green Paper has been decided by a Cabinet Committee established to oversee the work of an Interdepartmental Working Group whose task was to carry out the preparatory work on the Green Paper. The Interdepartmental Working Group had the following Terms of Reference:
"Having regard to:
Section 58 of the Offences against the Person Act, 1861* ;
Section 59 of the Offences against the Person Act, 1861* ;
Article 40. 3.3 of Bunreacht na hEireann* ;
The decision of the Supreme Court on 5 March 1992 in the Attorney General v X and Others  1 I.R. 1;
Protocol No. 17 to the Maastricht Treaty on European Union signed in February 1992 and the Solemn Declaration of 1 May 1992 on that Protocol*;
The decision of the people in the Referendum of 25 November 1992 to reject the proposed Twelfth Amendment of the Constitution;
The decision of the High Court on 28 November 1997 in A & B v Eastern Health Board, Judge Mary Fahy, C and the Attorney General (Notice Party);
and having considered the constitutional, legal, medical, moral, social and ethical issues which arise regarding abortion and having invited views from interested parties on these issues, to prepare a Green Paper on the options available in the matter."
The Cabinet Committee was chaired by Mr Brian Cowen T.D., Minister for Health and Children and the other members were Ms Mary O'Rourke, T.D, Minister for Public Enterprise, Mr John O'Donoghue T.D., Minister for Justice, Equality and Law Reform, Mr David Byrne S.C., Attorney General (up to July, 1999), Mr Michael McDowell S.C., Attorney General (from July, 1999) and Ms Liz O'Donnell T.D., Minister of State at the Department of Foreign Affairs. The Working Group which assisted in the drafting of the Green Paper comprised officials from the Department of Health and Children, the Department of Foreign Affairs, the Department of Justice, Equality and Law Reform and the Office of the Attorney General.
* Relevant extracts are provided in Appendix 1
Pregnancy and Maternal Health
1.01 In developed countries the threat of death in pregnancy and childbirth has considerably diminished in recent times. While childbirth is not completely safe, maternal deaths have become very infrequent during the past two decades. Ireland has enjoyed low maternal mortality rates that are amongst the best world-wide and which reflect the excellent ante-natal and obstetric services available in this country. Maternal deaths in Ireland are now so infrequent, however, as to make it difficult to draw conclusions as to the general causes of maternal death from Irish data alone and therefore international experience in this area is also drawn on in analysing the issue.
1.02 At a general level, the interpretation of the published literature review on the causes of maternal mortality in developed countries poses certain difficulties. Many papers are anecdotal and describe particular interventions, including termination of pregnancy which resulted in a successful outcome for the mother. Other studies, however, conclude that clinical conditions can be successfully treated by medical or surgical management without recourse to termination of pregnancy. It can be difficult to interpret the overall situation, with different countries with varied cultures using different medical criteria, evaluating different outcomes and probably utilising a variety of statistical analytical techniques.
1.03 It is particularly difficult to evaluate the anecdotal reports which specify situations where termination was performed to save the life of the mother because of the difficulty in ascertaining whether or not the termination was responsible for avoiding a maternal death or whether this was attributable to the appropriate clinical treatment. Individual patient circumstances differ and individual clinicians may differ in their approach as to the necessity of termination of pregnancy where the mother's life is considered to be at risk. While the vast majority of conditions in pregnancy are managed successfully, the international scientific literature documents situations where elective termination was performed to protect the life of the mother. This chapter summarises the results of the medical literature review and also reflects the diversity of views expressed in submissions to the Working Group from a number of health care professionals and organisations on many of the issues surrounding termination of pregnancy and related medical conditions.
1.04 A maternal death is one occurring during pregnancy, labour, or as a consequence of pregnancy after delivery. Deaths are usually divided into direct maternal deaths due to a complication of the pregnancy itself or indirect maternal deaths due to a complication not specific to pregnancy but aggravated by the physiological changes, for example, as may be seen in underlying cardio-vascular disease. Maternal mortality rates are the number of maternal deaths per 100,000 total births. At the turn of the century maternal mortality was approximately 400 per 100,000 births but has fallen to less than 10 in developed countries. In recent years, the direct maternal mortality rate in Ireland was 2 per 100,000 which is amongst the lowest in the world(1).
1.05 The major causes of death in pregnancy include haemorrhage, pre-eclampsia (hypertensive disease arising in pregnancy), amniotic fluid embolism, ectopic pregnancy, pulmonary embolus and infection. Indirect obstetric deaths include stroke and cardiac disease. The other causes of death in pregnancy are cancer, accidents and a variety of miscellaneous conditions, including therapeutic abortion itself, although this is very uncommon. A recent evaluation of maternal mortality in Ireland by the Institute of Obstetricians and Gynaecologists confirmed the low direct maternal mortality rate in this
country (2). While some information was incomplete, it was noteworthy that no deaths from ectopic pregnancy were recorded in the study. The authors also commented that the absence of a termination of pregnancy service did not appear to have significantly influenced Irish maternal mortality rates. They also noted the difficulties in making valid comparisons of maternal mortality across different countries and recommended further research which would also provide information on situations involving incidents in which the mother almost died.
1.06 There are many significant complications of pregnancy, most of which do well with appropriate management. Therapy is often directed at obtaining foetal viability with subsequent induction of labour to reduce the risk to the mother. In countries where termination of pregnancy is available where the mother's life is considered to be at risk, medical indications to terminate pregnancy are usually based on individual decisions which take account of the seriousness of the disease, response to treatment and involvement of vital organs such as the heart, liver and kidneys.
1.07 Legalised therapeutic abortion was originally introduced with the stated objective of saving the life of the mother. However, there has been a gradual relaxation in legal restrictions in many countries over the past 30 years. In England and Wales, indications to terminate pregnancy now include situations where the mother's life is considered to be at risk, where there is the possibility of permanent injury to the physical or mental health of the mother or family of the pregnant women and where there is a substantial risk of serious handicap if the child were born. Abortion rates have risen steadily in England and Wales since 1968 and in 1996, according to information published by the Office for National Statistics, approximately 180,000 abortions were performed in England and Wales at a rate of 13 per 1,000 women of childbearing age (3) . Analysis of the stated grounds for abortions carried out on residents of England and Wales for 1996 (the most recent year for which a detailed breakdown is available) reveals that 0.06% of abortions were performed on the sole ground that it was deemed that the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated. The principal categories involved were (i) neoplasms, (ii) mental and behavioural disorders, (iii) diseases of the circulatory system and (iv) other pregnancy, childbirth and the puerperial-related conditions. Of the 4,894 abortions carried out in England and Wales on Irish residents in 1996, 0.1% (5 procedures) were considered necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman or where the mother's life was at risk.
Maternal Mortality and Termination of Pregnancy
1.08 Approximately 50% of women have a normal pregnancy where there are no ante-natal complications and a normal delivery occurs. The incidence of conditions which render a pregnancy "not normal" differs according to the population and the practices of individual obstetricians. In the vast majority of cases, the outcome of pregnancy is good. However, in certain cases the risk of maternal mortality approaches a level where some clinicians consider that termination of pregnancy is necessary to protect the life of the mother. The information provided here also refers to the international literature because the incidence of severe life-threatening complications is low and Irish statistics in isolation are unlikely to reflect the complete situation. The medical causes which have been linked to therapeutic termination of pregnancy broadly include cancer, eclampsia, ectopic pregnancy and cardiac disease.
1.09 In Ireland there is no medical evidence to suggest that clinicians do not treat women with cancer or other illnesses on the grounds that the treatment would damage the unborn. The Medical Council's Ethical Guidelines state that "should a child in utero suffer or lose its life as a side effect of standard medical treatment of the mother, then this is not unethical." These guidelines also state that "refusal by a doctor to treat a woman with a serious illness because she is pregnant would be grounds for complaint and could be considered to be professional misconduct." Some submissions made reference to the distinction between what is referred to as "direct" and "indirect" abortion. In what is described as "direct" abortion, the primary intent is the termination of the pregnancy with the objective of preventing or treating the underlying maternal condition. In "indirect" abortion the intervention is not directed at the foetus but rather at the treatment of a specific condition of the mother which as a secondary effect, results in the death of the foetus. In practical, clinical terms, the treatment of many cancers including cervical, uterine, ovarian and in addition treatment for ectopic pregnancy may result in the death of the foetus. This is in contrast to intentional termination of pregnancy, for example, in rare cases of cardiac disease where the mother's life may be considered to be at risk if the pregnancy continues. These clinical situations are considered in more detail below.
1.10 Cancer in pregnancy is a relatively rare event and occurs in approximately 1 in 1,000 pregnancies (4) . In general the management of cancer in pregnant women involves a multidisciplinary approach, including the obstetrician, medical oncologist and surgeon. The therapeutic approach is usually similar to that in non-pregnant women, with some modifications made due to foetal considerations and informed maternal choices. The major malignancies complicating pregnancy include those of the breast, the reproductive tract and those of the haematological system.
1.11 Breast cancer is a common condition and approximately 2% of breast cancers occur in pregnancy. There has been a number of studies on pregnancy and breast cancer which conclude that, in general, the prognosis for pregnant women is similar to the non-pregnant population ( 5, 6, 7, 8) . It has been recommended that pregnant women with breast cancer should be treated in a similar fashion to non-pregnant women. Studies also suggest that termination does not improve overall survival (9,10,11,12,13). Chemotherapy for breast cancer is used in pregnancy, however, it may sometimes result in the death of the foetus.
1.12 Invasive cancer of the female reproductive tract (e.g. cervix or uterus) especially in the first 20 weeks and invasive cancer of the ovary are both considered situations where the mother's life may be at risk and intervention which results in the death of the foetus may be unavoidable (14,15,16,17). Because of the proximity of the foetus to the organs involved, it is not surprising that therapeutic intervention, especially in early pregnancy, may result in foetal death or damage (18,19). Ovarian cancer is extremely rare in the childbearing period but presents great problems in management since treatment may involve removal of the ovaries, tubes and uterus. Uterine cancer is also rare in pregnancy. In early cervical cancer, management may be conservative until after delivery of the foetus(20,21) . In invasive cancer, radical treatment including hysterectomy, radiotherapy, or a combination of both, may be necessary to save the mother's life. In situations of advanced disease that is not amenable to removing the uterus, high dose radiotherapy may be administered which may be followed by spontaneous miscarriage. Hysterectomy and radiotherapy in these situations are administered with curative intent.
1.13 Haematological malignancies including leukaemia and lymphoma are relatively uncommon but can occur in pregnancy (22). Chemotherapy is potentially curative for these malignancies, however the cytotoxic drugs involved may have a deleterious effect on the foetus (23,24). In early pregnancy this may result in a spontaneous miscarriage. Cytotoxic drugs may also cause significant congenital malformations in the foetus when given in early pregnancy. Radiotherapy is used to treat a wide variety of malignancies and is also associated with congenital malformations and mental handicap in certain situations. While precautions are taken to minimise these risks, radiotherapy and chemotherapy can adversely affect the foetus and on this basis therapeutic abortion has been offered to women in other jurisdictions.
1.14 There are a number of other cancers where therapeutic abortion has been described in the international literature, including meningioma (25,26). Case reports which describe a successful outcome, however, do not provide sufficient evidence that the outcome would be different if therapeutic abortion was not performed. The interpretation of such reports is that the circumstances rely on the judgement of individual clinicians, in consultation with the expectant mother, who would have considered termination of the pregnancy essential to protect the life of the mother.
Cardiac Disease in Pregnancy
1.15 While the incidence of maternal mortality in Ireland is very low, experience has shown that where such deaths do occur, cardiovascular disease is an important contributor to such mortality The nature of heart disease in pregnancy has changed in recent years. The recent confidential enquiry into maternal mortality in the United Kingdom provides insight into the cardiac causes of death in pregnancy (27) . In general, most deaths due to cardiac disease occur during the pregnancy, however, some may occur after delivery. Acquired cardiac disease is now three times as common as congenital cardiac disease. Of the acquired cardiac diseases, rheumatic heart disease continues to decrease and in contrast there have been significant increases in deaths due to aneurysms and ischaemic heart disease. This is considered to be partially due to the average age of pregnant women being higher than heretofore. The enquiry did not speculate on deaths that may have been preventable by elective termination of pregnancy; however, it documented certain cases where termination of pregnancy was an issue. Other cases which may have been preventable included deaths from myocarditis and other miscellaneous cardiac problems.