Exclusive State is told: 'Select sites for abortion'
Expert group report says 'chilling' 19th-Century law needs changing
Published 25/11/2012 | 05:00
The Government has been told in the expert group report that the State is under a legal obligation to establish "effective and accessible" procedures so that women who are "legitimately entitled" can have an abortion in Ireland.
The Sunday Independent has seen a full copy of the expert report that was given to the Cabinet late last week and is due to be published on Tuesday.
The report suggests it will be necessary to repeal the 1861 statute governing abortion, which it believes has a "chilling effect" on the treatment of pregnant woman in Irish hospitals.
The top-secret report was commissioned from an expert group following a European Court of Human Rights finding that an Irish citizen's rights were violated because of the absence of procedures to establish if she qualified for a lawful abortion.
The report was compiled before the Savita Halappanavar tragedy -- which is continuing to cause a political and public furore.
The expert group report, compiled by Mr Justice Sean Ryan, is likely to lead to a political firestorm.
Among the findings are:
- The State is obliged to provide procedures to establish a woman's right to an abortion as well as access to such treatments.
- In the case of a risk to the mother it must establish criteria or procedures by which a doctor is to assess that risk; and set up an independent review system where a patient disputes her doctor's refusal to certify that she is entitled to a lawful abortion and where there is a disagreement between doctors as to whether one is necessary.
Though the expert group is circumscribed, by its terms of reference, from making specific recommendations, the full unexpurgated report clearly indicates that legislation is the only appropriate response to the challenges posed by the X and C cases.
The report notes that while the State "is entitled to and indeed obliged to regulate and monitor" the rights of the unborn, it must ensure that "measures that are introduced to give effect to this constitutional right should not act as an obstacle to any woman who is legitimately entitled to seek a termination on lawful grounds".
It then gives the Government a complex list of options for creating a panel to decide such issues.
"The diagnosis of the medical specialists as to whether the woman satisfies the test in the X Case should be made expeditiously/or within a defined time limit and should be formally notified to the woman," it says.
The report also recommends that the Government must make provision for emergencies and disputes and measures to protect medical personnel involved.
"If a doctor carries out a termination in circumstances where the risk to life of the woman is imminent and inevitable rather than real and substantial, he/she should not have any liability because of the failure to follow prescribed procedures."
The Government has also been told to select locations where abortions may take place and taking into account "standards, geographical access and the need to have due regard to the right to the life of the unborn". Such centres should be certified by the Health Minister.
The report also confirms that, when it comes to concerns about suicide, in the wake of the X Case, "termination of pregnancy should be considered a medical treatment regardless of whether the risk to the woman arises on physical or mental health grounds.
"Ultimately, the most politically contentious aspect of the report is likely to be its analysis of whether non-statutory guidelines on the rights of a woman to an abortion in Irish hospitals, or a legislative response, will meet the requirements of the European Court of Human Rights," it says.
It warns that while consideration was given to the possibility of implementing the judgement without recourse to legislation, it is unlikely that "guidelines in isolation" or "some non-statutory protocols" would "fulfil all the requirements set by the European Court of Human Rights judgement."