independent

Friday 18 April 2014

A criminal offence since 19th Century

ABORTION has been (and remains) a criminal offence in Ireland for more than 150 years.

The Offences Against the Person Act 1861 makes it a criminal offence to procure a miscarriage (by a woman herself or anyone who assists her).

In 1983 the Irish Constitution was amended, following a referendum, to secure the right to life of the unborn.

Under Article 40.3.3 of the Constitution, the State acknowledges 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.

But in 1992, during the infamous X case, Article 40.3.3 fell for interpretation by the Supreme Court.

The court ruled that if there was a real and substantial risk to the life, as distinct from the health, of the mother, and that this real and substantial risk could only be averted by the termination of her pregnancy, this would be lawful.

As a result of X, there is a constitutional right to abortion, albeit in highly limited circumstances, but no law has ever been introduced to give effect to the ruling. Instead, doctors must rely on the Medical Council's guide to professional ethics which says "abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother".

The guidelines acknowledge that "rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby".

The Government argued before the European Court of Human Rights two years ago that there is a bright blue line provided by Irish law in rare cases where there was a risk to a mother's life.

But the court rejected that argument and criticised the Government for failing to implement the existing constitutional right to abortion and leaving our courts with a lack of clear information.

Although the ECHR held that there is no right for women to an abortion, it found that Ireland had violated the Convention by failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under current Irish law.

Abortion services are available on demand in 30 European states; available on health grounds in 40 and available on wellbeing grounds alone in 35.

Irish Independent

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