The Irish Human Rights Commission (IHRC) today published its Observations on the Protection of Life During Pregnancy Bill 2013. These Observations are structured to review the provisions of the Bill against first the Constitutional standards and then the relevant international human rights standards including the European Convention on Human Rights, to which Ireland is party. The IHRC submitted its Observations to James Reilly T.D., Minister for Health, in accordance with its mandate to make recommendations to the Government as it deems appropriate under the Human Rights Commission Act 2000.
The Observations analyse and make recommendations on the content of the legislation and its implementation.
The IHRC’s recommendations as set out in the Executive Summary of the Observations are as follows:
Recommendations
- The right to life of girls and women should be protected through effective and accessible procedures pursuant to the legislation;
- The right to life of the unborn should also be protected, pursuant to the legislation and the safeguards contained therein;
- The legislation lacks a clear pathway for a woman or girl seeking access to the procedure set out in sections 7 and 9 of the Bill through which a medical certification is made or refused and should be clarified accordingly;
- Where a girl or woman receives a ‘negative’ review decision under sections 10 to 14 of the Bill, she should receive written reasons for the decision in the event she wishes to seek judicial review of the decision;
- To ensure that any judicial review of a negative decision is accessible and effective, an expedited procedure before the High Court should be provided, with provision for legal aid, and anonymity;
- The number of examinations that a girl or woman is to be subjected to where she seeks treatment under this legislation, particularly girls and women in vulnerable situations, primarily those at risk of suicide, should be framed so as not to unduly increase her risk of mental anguish or suffering. The provision for examination (at initial assessment and on review) by four different psychiatrists raises concerns regarding the intrusiveness of the procedure, on the woman’s right to respect for her private and family life under Article 8 of the ECHR;
- In the absence of clear procedures under which persons with intellectual disabilities can be supported in receiving information and advice and in making decisions regarding the procedures set out in sections 7 to 9, and in relation to reviews under sections 10 to 14 of the Bill, the rights of such girls and women may not be adequately vindicated. To address this lacuna, mental capacity legislation, properly formulated to support decision-making of persons with disabilities, should be introduced in tandem with this Bill;
- The Bill should specify that where the action or inaction of a person claiming to have a conscientious objection and refusing to carry out or assist in carrying out a lawful procedure knowingly contributes to the death of or significant harm to the woman, that person and/or the institution shall be guilty of a specified offence;
- The term ‘obstetrician’ should be replaced in section 7 with suitable terminology which would cover other medical specialists;
- In relation to the power of the Minister to prohibit the performance of treatment under sections 7 to 9 of the Bill, this power must be strictly limited to ensure that the right to access lawful termination of pregnancy is effectively vindicated and its intended use should be specified in the Bill or accompanying regulations;
- All review committees should be required to provide written reasons for their decisions, which are provided as soon as is practicable to the woman concerned;
- Provision should be made in the Bill for detailed regulations in relation to the practice and procedure to be adopted for the reception, storage, prohibition of onward transmission and destruction of records referred to in section 20, and that the advice of the Data Protection Commissioner would be sought, given the gravity of the impact of a potential disclosure of the medical record of a girl or woman for her Article 8 ECHR rights;
- It should be stipulated in explicit terms in section 20 that any identifying information regarding a pregnant girl or woman would be excluded from the notification to be transmitted to the Minister;
- In order to negate the potential "chilling effects" of sections 22 and 23 in relation to the criminal offence’s up to 14 years imprisonment, which was noted by the ECtHR in A, B and C, it is recommended that a statutory duty be placed on the DPP to promulgate guidelines as to the factors that will be taken into account in deciding when a prosecution should be initiated by her Office under those provisions;
- The Bill should address the situation of young women and girls in a crisis pregnancy (including following rape) by setting out the procedures which should apply to take into account their age and vulnerability, potential exposure to criminal sanction, and their consent to treatment, including where the child is in HSE care. The Bill should further provide that young women and girls in a crisis pregnancy have a right to accessible age-appropriate sexual and reproductive health services without discrimination;
- The Bill should address the specific situation of girls and women from ethnic minorities and/or non-English speaking background and specify that they should have a pathway adapted to their needs to facilitate access to the procedures set out in sections 7 to 9 of the Bill, and the reviews pursuant to sections 10 to 14 of the Bill;
- The Bill should be clear as to how medical practitioners will be accountable to women and girls who use their services, including in relation to issues of accessibility and referrals;
- Insofar as the Bill does not provide for access to a lawful abortion under the procedures set out in sections 7 to 9 for women or girls in a crisis pregnancy with a fatal foetal abnormality or following rape, consideration should be given to reassessing of the Constitutional position as it prohibits access to a lawful abortion for women and girls in such situations.
- A long title should be included in the Bill for the purpose of clarity
ENDS/
For further information please contact:
Fidelma Joyce, IHRC, Tel: 01 8589601 Mob: 087 783 4939
Note to Editor
The IHRC’s Observations on the Protection of Life During Pregnancy Bill 2013 are published on our website www.ihrc.ie