What exactly is the law on abortion in the Republic of Ireland?

The 8th Amendment of the Irish Constitution acknowledged

the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Article 40.3.3

Following the referendum to remove the 8th Amendment from the Constitution, the Oireachtas (which consists of the two chambers, the Dáil and Seanad, which together are the legislative branch of government) passed the Health (Regulation of Termination of Pregnancy) Act 2018, which I’ll refer to as ‘the Act’. This piece of legislation details the grounds under which abortion is legally available in Ireland. 

The aim of this post is simple: to explain clearly and factually what exactly this legislation says, and thus when abortion is legally available in Ireland today. The Act is divided into three parts, which contain a total of 29 sections. 

Part 1

Part 1 deals with ‘preliminary’ and procedural aspects of the Act’s operation. The most significant provisions from this part are sections 2, 5 and 7. 

Section 2 contains a list of definitions which seek to clarify certain words used throughout the Act. This section defines ‘Termination of Pregnancy’ as ‘a medical procedure which is intended to end the life of a foetus’.

Section 5 of the 2018 Act repeals two pieces of legislation which previously regulated abortion and information about abortion abroad: the Protection of Life During Pregnancy Act 2013 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995.

Section 7 requires the Minister for Health to ‘not later than 3 years after the commencement of this section, carry out a review of the operation of this Act.’ As this section was commenced (put into operation by the relevant minister) on 1 January 2019, we can expect the first review into the operation of this legislation by 1 January 2022 at the latest. 

Part 2 

This portion of the legislation contains the core provisions relating to abortion. Section 8 contains a further list of definitions, which help clarify terms such as ‘viability’ and ‘health’.

Sections 9, 10, 11 and 12 are the central elements of the legislation. Together, they lay out four grounds on which an abortion can legally be provided. 

Section 9 – Risk to Life or of Serious Harm to Health

The first ground for an abortion under the Act is if there is a risk to the ‘life or serious harm to the health’ of the mother. An abortion can be provided on this ground if two medical practitioners, who have examined the pregnant woman, form a reasonable opinion in good faith that: 

(a) there is a risk to the life, or of serious harm to the health, of the pregnant woman,

(b) the foetus has not reached viability, and

(c) it is appropriate to carry out the termination of pregnancy in order to avert the risk referred to in paragraph (a).

According to section 9(3), before the abortion can take place, the two medical practitioners involved must certify that each of the criteria above has been met. One of these two medical professionals must be an obstetrician, per section 9(2)(a).

The gestational limit for an abortion on this ground is ‘viability’, as opposed to a specific number of weeks. Per the definitions in section 8, this is taken to mean ‘the point in a pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of survival outside the uterus without extraordinary life-sustaining measures’. In practice, viability will probably be taken to mean a foetus that is approximately 22-24 weeks old. 

It should be noted that ‘health’ is defined in section 8 as meaning ‘physical or mental health’.

Section 10 – Emergency Risk to Life or of Serious Harm to Health

Under this section, an abortion can be provided by one medical practitioner, where  ‘having examined the pregnant woman, he or she is of the reasonable opinion formed in good faith that—

(a) there is an immediate risk to the life, or of serious harm to the health, of the pregnant woman, and

(b) it is immediately necessary to carry out the termination of pregnancy in order to avert that risk’.

If the medical practitioner cannot certify that the grounds have been met before the abortion takes place, he or she must provide this certification within three days. 

There is no gestational limit set for this kind of abortion.

Section 11 – Life Limiting Conditions / Fatal Foetal Abnormality 

This section refers to the commonly cited case of ‘fatal foetal abnormality’, i.e. conditions such as anencephaly and chromosomal abnormalities like Trisomy 18 and Trisomy 13. 

Such an abortion is permitted if two medical practitioners certify that ‘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’.

Of the two medical practitioners who must certify an abortion on this ground, one must be an obstetrician, and the other ‘a medical practitioner of a relevant specialty’. According to the definitions in section 8, this means a speciality 

  • in respect of which the medical practitioner is registered in the Specialist Division of the register, and
  • relevant to the diagnosis, care or treatment of such a condition.

There is no gestational limit set for this kind of abortion.

Section 12 – Any Reason up to 12 Weeks

Under this section, one medical practitioner can provide an abortion where,  ‘having examined the pregnant woman, he or she is of the reasonable opinion formed in good faith that the pregnancy concerned has not exceeded 12 weeks of pregnancy.’

Section 12(3) mandates a waiting period of three days between the woman’s request and the performance of the abortion. 

The ‘12 weeks’ requirement is clarified in section 12(5): it is taken to mean ‘the medical principle that pregnancy is generally dated from the first day of a woman’s last menstrual period.’

Summary of grounds for abortion in 2018 Act

S. Grounds
for
abortion		Gestational
limit		No. of
doctors
req’d to
certify		Review
available
if refused?
9Risk to
life or serious
harm to health		Viability 1 obstetrician
+ 1 medical
practitioner		Yes
10Immediate
risk to life or
serious harm
to health		No
limit		1 medical
practitioner		No
11Condition
likely to
lead to
death of
foetus before
or within
28 days
of birth		No
limit		1 obstetrician
+ 1 medical
practitioner
in relevant
specialty		Yes
12 Any reason12
weeks 		1 medical
practitioner		No
Sections 13–18 – Review of Decisions to Refuse a Request for an Abortion

These sections deal with how a woman who is initially denied an abortion under sections 9 and 11 (risk to life/health and fatal foetal abnormality) can review that decision. 

The HSE must maintain a panel of medical practitioners who will facilitate these reviews. Each review committee will be composed of 2 medical practitioners, 1 of whom must be an obstetrician, and for reviews under section 11 (fatal foetal abnormality abortions), the other must be a ‘medical practitioner of a relevant specialty’. The committee will meet within three days following the initial refusal to certify the abortion, and will make its decision within seven days. 

By 30 June annually, the HSE will provide a report to the Minister for Health detailing the operation of review committees. Under section 18(2), the report will include:

  • the total number of applications for review received by the HSE,
  • the number of reviews carried out,
  • in the case of the reviews carried out, the reason why the review was sought, and
  • the outcome of the reviews.

Section 19 addresses medical practitioners and lays out what form the certification of the relevant criteria being fulfilled must take. 

Statistics

Section 20 details what records must be kept in relation to each abortion carried out. Within 28 days of it taking place, the following information should be sent to the Minister for Health:

  • the medical practitioner who carried out the abortion
  • which ground the abortion was carried out under
  • the country of residence of the woman who had the abortion
  • the date of the termination

Section 20(3) requires the Minister for Health to create a report of the notifications forwarded to him or her regarding the above information, and present this report to the Dáil and Seanad by 30 June annually. The key information this annual report will reveal is the number of abortions carried out under each of the four grounds. 

Part 3 

This part of the Act contains some miscellaneous provisions, including amendments to other legislation. The most important aspects of part 3 are the sections on conscientious objection and criminal offences. 

Section 22 – Conscientious Objection 

Section 22(1) states that ‘nothing in this Act shall be construed as obliging any medical practitioner, nurse or midwife to carry out, or to participate in carrying out, a termination of pregnancy’. This provision applies to all requests for abortions except those under section 10 (immediate risk to life or serious harm to health of the mother).

The crucial phrase to note here is ‘nothing in this Act’. This means that the conscientious objection protections provided in the Act itself would not extend to any requirements to carry out abortions that might be in employment contracts, regulations or standards set out by professional bodies such as the Medical Council, or other Acts. 

Also of note is that the provision only applies to three named categories of people: doctors, nurses and midwives. Those unable to avail of any conscientious objection provisions under the Act include medical students and other para-healthcare roles. 

Even if a doctor avails of this provision, he or she must ensure that the pregnant woman can access another doctor who will provide the abortion. Per section 22(3) he or she must ‘make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the termination of pregnancy concerned’. In 2019 the Medical Council changed their Professional Conduct and Ethics Guide to reflect this change in the law with regards to conscientious objection. 

Section 23 – Offences

According to the legislation, abortion remains a criminal offence in Ireland. If a termination were to take place outside of the four grounds discussed above, providing an abortion has a maximum sentence of a fine, or 14 years imprisonment. Crucially, a pregnant woman who procures an abortion for herself is exempt from prosecution (section 23(3)).

Conclusion

This was a whistlestop tour of the current abortion legislation in Ireland. Although not contained in the legislation itself (but on the HSE website) there is some other information that is relevant:

  • Abortions are provided free to pregnant women who ‘normally live in the Republic of Ireland’ (i.e. terminations are taxpayer funded)
  • There are 2 types of abortion available in Ireland: medical and surgical.

It remains to be seen in the annual report due at the end of June how many abortions were carried out in 2019 under the new Act.

Gavin