Here's a headline you perhaps thought you would never see in Ireland: 'Government to introduce legislation permitting abortion in (very) limited circumstances.'

Yes, 30 years after the 'pro-life' referendum, 21 years after the X Case judgement and following seemingly endless confusion, point-scoring, legal uncertainty and political fudging, this week, the Cabinet has drafted legislation called the Protection of Life During Pregnancy Bill.

Let's think about the title of the bill for a moment. Yes, our legislators have finally decided it might be a good idea to protect maternal life, something that was perhaps forgotten about just a little bit in all that 'pro-life' hysteria of the 1980s and beyond.

While we must give some credit to Health Minister James Reilly and the current Government for finally trying to deal with what is admittedly a very difficult issue, let's not give our legislators too much credit here. This change, which will cater for for usually very rare cases, has been overdue for 20 years.

The planned legislation has come about following the 2010 ruling of the European Court of Human Rights in the A, B and C case. Let's not forget that the C case involved a women who had cancer, who felt there was no clarity on how our current anomalous legal situation on abortion would affect her care during pregnancy- the court ruled in her favour against the State.

The Government's action on legislating for limitedf abortion has also been encouraged by the tragedy of the Savita Halappanavar case, which can be seen as a starkly practical example of how our inadequate legal protection of pregnant women puts their lives at risk.

So as often happens in this country it is a question of  'hard cases' making very necessary law.

Some medical and legal experts, not to mention Praveen Halappanavar, would dispute ex-Holles Street Master Dr Peter Boylan's claim made during the recent coroner's inquest that the termination that could have saved Savita's life was not legally permissible early on in her hospitalisation.

In the Savita case, the issue is complicated by the question of whether or not reported delays in checks and tests on her condition in the earlier days of her hospitalisation may have served to mask how seriously ill she was and would subsequently become.

Whatever reading you take from the evidence provided at the inquest, it cannot be denied that the current legal confusion inhibits doctors, and potentially, in rare cases, can kill patients.

The doctor's main dilemma in these situations appears to be: how serious does the threat to a mother's life have to be to justify a termination that could potentially save her life in cases where the foetus is unlikely to survive?

Or, in what circumstances is a medical intervention warranted where a doctor can intervene to save a mother's life, where such action will result in the unintended loss of the fetus?

The key problem for doctors, (and ultimately for mothers) at present is how to calculate, with any level of precision, exactly how great the 'real and substantial' threat to the life of the mother actually is to justify a termination.

At present these decisions are mired in confused legal interpretation and even percentage risk calculations, as was mentioned at the Savita inquest. Sometimes, doctors are faced with making complex and potentially life-changing decisions very quickly while venturing through a legal minefleld.

In Savita's case, it was contended that on Monday October 22 and Tuesday October 23 last, although quite ill, with her condition showing signs of deterioration, and with the 17-week-old fetus unlikely to survive, Ms Halappanavar did not appear to be seriously ill enough to justify a termination under the current legal position. A termination at that stage, Dr Boylan argued, may have saved her life.

However, not that many hours later, early on the Wednesday morning, she was so ill that by lunchtime, a termination was officially deemed necessary by her medical team, at which stage, it was contended by Dr Boylan, such a procedure may have been too late to save her life anyway. In the event, Savita spontaneously gave birth to a dead baby and died of severe sepsis the following Sunday.

The obvious question many people will pose is - exactly when in such (admittedly rare) circumstances, is a termination justified under the current confused legal situation? To put it crudely, what use is a guideline that indicates that a woman could be practically 'at death's door' before a termination that might be too late in any case to save her is justified?

The Government, in trying to legislate for limited abortion, has to find a moderate path between two opposing schools of thought.

On the one hand there is the 'pro-choice'/liberal lobby which would argue that there should effectively be abortion on demand up to a certain period of gestation, as is the case in many other developed countries.

Indeed, it is fairly obvious that if there there was limited abortion on demand in Ireland, Savita Halappanavar would be alive today. She would have asked for the termination the day after she was admitted and her request would have been acceded to.

The Savita case may indeed steer some people, including politicians, with fairly 'middle of the road' views on abortion, towards a more liberal view.

On the other hand, the more conservative lobby, notwithstanding the Savita tragedy, will be concerned that a loosening of our restrictions on termination would potentially  'open the floodgates', particularly in the area of suicide risk, the latter being admittedly a thorny issue, but not an insoluble one.

The Government will certainly not be legislating for anything like a liberal abortion regime, but it will be trying to provide some legal and practical clarity on the X Case ruling on when termination may be permissible.

We certainly need clearer legal and clinical guidance that will ensure the safety of mothers in the rare cases where their lives are at risk during pregnancy.

The legislation will attempt to better define the X case's 'real and substantial risk' to the life of the mother criteria that would allow a termination.

What doctors (and patients) need it clearer guidelines on defining and calculating such a risk.

Does the mother have to be gravely ill and facing imminent death - by which stage in some cases it may be too late for a termination to save her?

Or can the doctor decide that while the mother is not about to die, the seriousness of her condition indicates her life may be at risk at some time in the coming hours or days if she does not have a termination right away? This was a crucial issue in the Savita case.

However, a reading of the detail of the 1992 X Case judgement indicates that the mother does not necessarily have to be literally 'at death's door' for a termination to be justified.

The recent Government Expert Group report, outlining the X Case guidelines, notes: 'it is not necessary for doctors to be of the opinion that the risk to the woman's life is inevitable or immediate' as part of the test to be applied on whether a termination is permissible.

In other words, it can be sufficient, in the doctor's view, for a substantial, although by no means an inevitable, risk to her life to exist to allow a termination to take place.

But still it's not an easy judgement call, and there's the rub really. Many obstetricians will argue that cannot be expected to wade through a copy of the X Case ruling while making a judgement call on a very difficult case of worsening maternal illness.

And mothers whose lives may be at risk cannot hope on a wing and a prayer that the legal dice will roll in their favour.

What the Government will try to do is to give clearer guidelines to doctors, based on the X Case findings and the more recent European Court of Human Rights 'A, B and C' ruling, when they need to act in accordance with their clincial judgmeent in difficult cases.

The Government, will presumably try in the new legislation to bring clarity to this tricky area of calculating what  constitutes a real and substantial risk to the mother's life and how great this risk is. And, as per the Expert Group report, it needs to put structures and safeguards in place to facilitate difficult judgement calls on termination.

As the debate begins on the planned abortion legislation, let's give some thanks that we may finally have started to grow up as a society and a political system.

Mahatma Ghandi and others have said a society should be judged on how it treats its weakest members.

Seriously ill pregnant women are especially vulnerable and need to know that their care will be guarded, not only against poor hospital practice, but also against potentially lethal legal confusion.

'Medical misadventure' in Savita case

Political tensions over abortion law

 


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