The government has set forth its intention to have a referendum on the Eight Amendment to the Constitution later this year. As it currently stands, the Protection of Life in Pregnancy Act (2013) allows for the termination of pregnancy in cases where there is a real and substantial risk of loss of life from suicide intent or physical illness (for example cancer or in an acute medical emergency).
The Act was prompted in part by the Supreme Court decision in the X case in 1992 which considered suicidal risk as grounds for abortion, though in reaching that judgement no psychiatrists were called to give expert testimony. Indeed, evidence that abortion provides any mental health benefit is lacking and some studies have shown it to be detrimental.
While the Act imposes no legal limit on the gestational age at which terminations can occur, there is an obligation to preserve unborn life as far as is practicable (including early delivery with Caesarean section) in cognisance of the current constitutional protection of the unborn. In 2016, there were 25 terminations under the Act, including sixteen arising from emergency physical illness and one from a risk of suicide.
In December, the Oireachtas Committee on the Eighth Amendment recently published its report in which it recommended the repeal of Article 40.3.3. If repeal is the outcome of any planned referendum, then further legislation defining when abortion may occur will be introduced, raising important medical and ethical questions.
In this regard, the committee made a number of recommendations which the government could choose to follow including unrestricted access to abortion up to 12 weeks’ gestation.
In the UK about 90% of abortions occur within this timeframe, though as the committee cited, most happen at this point for socioeconomic reasons. At this stage the foetus, though small, has clearly visible head, hands and feet and internal organs such as the heart and brain.
It also recommended the availability of abortion (with no time limit) in cases where foetal abnormality was likely to result in death before or shortly after birth. However, there can be no absolute certainty regarding the diagnosis of some congenital anomalies.
While the term ‘fatal foetal abnormality’ is often used, it is imprecise and likely to cause confusion in many cases. Indeed, babies with potentially lethal conditions have been to known to survive for months and years after birth. Trisomy 13 (Patau syndrome) and Trisomy 18 (Edward syndrome) are conditions where abortion commonly occurs, though in up to 8% of cases babies with these conditions can live for up to decades; these conditions are likely to fall within the inclusion for abortion based on the Oireachtas Committee recommendations.
On the other hand, some conditions such as anencephaly (abnormal development of the brain and skull) though rare (1-10 in 10,000 pregnancies) are associated with an up to 50% intrauterine mortality and in the vast majority of cases result in death within hours to days of delivery. Despite this, there are rare case reports of babies that have lived for months and for up to two years. Having access to counselling and perinatal palliative care services in such cases is hugely important.
A further recommendation, if implemented, would broaden access to abortion to include circumstances where the health as opposed to the life of the mother is at risk, with no distinction being made between physical or mental health. This would leave open the potential for abortion on a much wider scale as has happened in the UK.
In addition, the report notes that the gestational age at which this occurs should be guided by best medical evidence. To put things into some perspective, based on UK figures, about 5% of abortions occur between 14-20 weeks and about 1% occur over 21 weeks. However, at 23 weeks survival outside the womb is about 30% rising to 75% at 24 weeks and 90% at 26-27 weeks. While representing a very small proportion of all cases, it effectively means that some babies are aborted that otherwise might survive with intensive support if delivered.
So how is abortion carried out? Prior to nine weeks, it is generally done medically using tablets which result in the lining of the womb breaking down. Beyond this, surgical abortion is usually performed and involves any of two techniques depending on the gestational age. Vacuum or suction aspiration can be done up to about 15 weeks’ gestation and at later stages abortion is carried out with dilatation and curettage using forceps.
Even for those who support abortion in some circumstances, the repeal of the Eighth Amendment could pave the way for new legislation that creates more far reaching indications for pregnancy termination.
The maxim of primum non nocere or ‘first, do no harm’ has been traditionally at the heart of medical practice, though there are widely differing views as to its application in the context of abortion. Indeed, the Hippocratic oath which doctors no longer take forbids abortion. It is often said that hard cases make for bad law, something which should be carefully kept in mind by our politicians.
Dr Kevin McCarroll is a Consultant Physician in Geriatric Medicine, St James’s Hospital, Dublin.