The Government outlines seven possible constitutional and legislative approaches for discussion in the Green Paper on Abortion without recommending any one particular option. They are:
(i) An absolute constitutional ban on abortion;
(ii) An amendment of the constitutional provisions so as to restrict the application of the X case;
(iii) The retention of the status quo;
(iv) The retention of the constitutional status quo with legislative restatement of the prohibition on abortion;
(v) Legislation to regulate abortion in circumstances defined by the X case;
(vi) A reversion to the position as it pertained prior to 1983;
(vii) Permitting abortion on grounds beyond those specified in the X case.
(i) Absolute Constitutional Ban on Abortion
While this option is referred to in submissions as an absolute ban on abortion, the intention appears to be to retain existing medical practice and to permit treatment where the loss of the foetus is the indirect consequence of treatment necessary to save the life of the mother. Advocates of this option do not accept that direct abortion is ever necessary to save the mother's life.
Discussion: There are several dimensions to this option which require careful consideration. Although some doctors maintain that direct termination of pregnancy is never necessary, others, in their clinical judgment, maintain that there can be situations where a direct termination is required to save the life of a woman. While the vast majority of conditions in pregnancy are managed successfully, international scientific literature documents situations where elective termination was performed to protect the life of the mother. Some studies, however, conclude that clinical conditions can be treated successfully by medical or surgical management without recourse to termination of pregnancy.
Any wording designed to achieve a complete constitutional ban would therefore bring the medical treatment of expectant mothers into sharp focus. If an absolute ban on direct abortion were put in place, there would be implications for cases where any doctor considered that certain treatment involving the removal of the foetus was necessary in order to save a woman's life. There might also be implications in relation to the laparoscopic treatment of ectopic pregnancies frequently carried out in Ireland, where the foetus is directly removed from the fallopian tube. In cases such as the laparoscopic treatment of an ectopic pregnancy, or the termination of a pregnancy in cases of severe eclampsia, Eisenmenger's syndrome or the conditions mentioned elsewhere in the Green Paper, it is difficult to see how the destruction of the embryo can be described as an unintended side-effect.
It would also appear that in its ethical guidelines the Medical Council has added to the concept of direct/indirect abortion, a reference to the state of mind of the person carrying out the procedure (`deliberate or intentional'). The question arises as to whether the use of such words in a constitutional amendment would allow doctors to maintain their practice of undertaking a medical intervention in appropriate circumstances, even though this may result in the termination of the pregnancy.
The manner in which the courts might interpret such concepts in a constitutional context is an entirely open question. It cannot be stated with certainty whether the law would or would not make a distinction between the direct or the deliberate and intentional abortion of an unborn child, as referred to in the Medical Council Guidelines, and unintentional foetal loss which comes about as a side-effect of medical treatment. The issue was not addressed by the Supreme Court in Attorney General v X, although Hederman J did, in the course of his dissenting judgment, refer to the "indirect but foreseeable result of an operation undertaken for other reasons" and stated that he did not think any operation of which the sole purpose was saving the mother could be a direct killing of the foetus.
It should also be borne in mind that Article 40.3.3 of the Constitution is framed in terms of the right to life of the unborn and does not refer at all to abortion, direct or indirect. Legal difficulties which may arise in relation to the concept of direct and indirect abortion do not, therefore, exist at present.
They may arise, depending on the wording of an explicit constitutional prohibition on abortion. The approach taken by the then Government in the 1992 referendum campaign indicates that it had considerable concerns over attempts to make a distinction between direct and indirect abortion.
The wording put forward in the 1992 referendum on the substantive issue of abortion reflected the Government's view that, however remote, the possibility of an abortion being necessary in order to save the life of a pregnant woman could not be ruled out and that a distinction as between direct and indirect abortion could not therefore serve as the basis for a constitutional provision.
In its consideration of the option of introducing an absolute constitutional ban on abortion, the Constitution Review Group concluded that reliance on the understanding of indirect abortion put forward by certain of the interest groups is unsafe.
An absolute ban on abortion may therefore have the effect of compromising current medical procedures accepted under the ethical guidelines, unless a way can be found to incorporate appropriate definitions into the Constitution. The extent to which proposed wordings successfully make the distinction between direct and indirect abortion, or indeed whether it is possible to make such a distinction, are matters for further consideration. An absolute ban would also seem to accept the contention that a "direct" abortion is never necessary to save the life of a mother, although the evidence on this point is not conclusive and that contention remains controversial.
It is possible that the ethical guidelines currently in force may be changed in the future, for example, to reflect a different, more liberal, ethical approach or to take account of developments in medical practice. An explicit constitutional prohibition on direct termination of pregnancy would circumscribe the Medical Council's freedom to draw up guidelines as it considered appropriate, if it sought to adopt a more liberal approach.
The difficulty of arriving at an acceptable wording to provide for a constitutional prohibition on abortion should not be underestimated. Considerable debate and effort preceded the formulation of the 1983 amendment, which later proved not to afford the protection to the unborn which many believed it to confer. In 1992, the Government of the day put forward a formula which was judged to be the best possible in the circumstances, yet this was rejected by the electorate.
Finally, consideration would be required as to whether this option would be compatible with the State's obligations under the European Convention on Human Rights, as it would allow for the deliberate termination of pregnancy only where this is an indirect consequence of medical treatment intended to save the life of the mother. There is case law of the European Commission of Human Rights which suggests that such an absolute ban on abortion may not accord with the State's obligations under the Convention.
However, case law of the European Court of Human Rights indicates that States Parties to the Convention enjoy a very wide margin of discretion in regulating abortion. The limitations to this discretion are not clear.
(ii) Amendment of the Constitutional Provisions so as to restrict the Application of the X case
This option proposes that the Supreme Court's decision in the X case be modified by the removal of a risk or threat of self-destruction as a ground for establishing that a real and substantial risk to the life of the mother exists. As such it would meet the X case test except that it excludes the risk of suicide.
After the X case in 1992 the Oireachtas passed three Bills proposing amendments to the Constitution. The aim of the first Bill was to remove risk of suicide as grounds for permitting abortion. The second Bill dealt with the question of freedom to travel abroad and the third dealt with the issue of information on services lawfully available in other states.
The first Bill proposed to amend the Constitution for the twelfth time by appending the following provision to Article 40.3.3: "It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction."
The proposed amendment was defeated.
Discussion: The wording used in 1992 sought to meet the concerns of those who wished to safeguard the provision of medical treatment to pregnant women, whilst removing suicide risk as a ground for abortion. In 1992, however, many rejected what was perceived to be an explicit acknowledgement that direct, intentional interference with the right to life of the unborn could ever be justified. It is useful to recall the position of many of those opposed to abortion, i.e., that a direct abortion is never necessary to save the life of the mother.
The proposed amendment was also opposed by groups who wished, at a minimum, to ensure that abortion was permissible in circumstances equivalent to those of the X case, including suicide. Concern was also expressed by some groups about the distinction made in the wording between life and health of the woman.
This option can therefore be described as adopting the same general approach as the proposed Twelfth Amendment in 1992. While the question of a wording to achieve the purpose of the amendment would of course be examined afresh, in view of the amount of effort which went into the formulation of the draft proposed in 1992, the difficulty in arriving at an acceptable wording is considerable. It is also possible that while definition of the "unborn" did not feature to any great extent in the debate surrounding the proposed Twelfth Amendment in 1992, a new debate could result in the need for such a definition being placed on the agenda.
Consideration may also be given to whether a proposal of this sort would require accompanying legislation. In 1992, such accompanying legislation was considered unnecessary by the Government. If legislation was proposed under this option it would, in line with the proposed constitutional amendment, exclude suicide as grounds for abortion. The publication of draft legislative proposals in the context of this approach might serve to reassure some of those concerned about this approach on the grounds that it might be open to abuse.
Prior to a referendum designed to exclude the risk of suicide, it would be possible to publish draft legislation setting out provisions specifically related to the suicide risk, including a certification process in relation to this, which would be enacted if the amendment were not to succeed. If the electorate voted to remove "the suicide risk", then the Bill would be enacted without those provisions relating to suicide risk. If they voted to retain suicide risk, then the Bill would be enacted with relevant provisions. The legislation would, of course, be subject to amendment by the Oireachtas, either during its passage through the House or, subsequently, by way of amending legislation.
It may also be speculated that those opposed to the 1992 wording on the grounds that it was not liberal enough will continue to maintain this opposition. The C case of 1997 again brought to the fore the issues surrounding suicide risk.
(iii) Retention of the Status quo
If it is not possible to reach consensus on constitutional and/or legislative reform, the existing situation will continue, with further cases which may arise being decided on an individual basis by the courts under Article 40.3.3, as interpreted by the X case. This means that the courts will refer to the judgment of the Supreme Court in that case, i.e., that a termination is lawful if it is established, as a matter of probability, that there is a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could be averted only by the termination of her pregnancy.
The Supreme Court also found that "a real and substantial risk" includes the risk of suicide, unless on some future occasion the Supreme Court reverses its decision in the X case.
Discussion: While it can be argued that the retention of the status quo strikes a balance between those who argue for a return to the law as they thought it to be before the X case and the wishes of those who would like to see abortion available in circumstances other than those laid down in the X case, a number of issues would remain unresolved, including the possible problems of definition.
Retention of the status quo without legislation also has the disadvantage that the courts would become the ordinary forum for resolving issues relating to medical treatment and abortion.
It is not possible to predict what the nature of any future cases might be, nor their outcome. It is possible that on some future occasion the Supreme Court may not arrive at the decision in the X case and could indeed potentially alter the test set out in the X case. It is impossible to predict the outcome of such future cases. In the current situation there are aspects about which the legal position is uncertain. For example, none of the judges in the Supreme Court adverted to time limits.
It is also noted that the judgments in the X case offer no direct guidance as to the liability of medical personnel who might consider a direct termination of pregnancy necessary in circumstances in which it is not absolutely clear that the mother's life is at risk or, alternatively, if a decision not to perform an abortion resulted in the death of the mother.
Issues which also remain unaddressed are the question of guidance as to the evidence which would be necessary to justify an abortion and some statutory protection for the rights of those personnel who did not wish, for conscientious reasons, to assist in or be associated with the termination of the pregnancy.
(iv) Retention of the constitutional status quo with legislative restatement of the prohibition on abortion
The constitutional status quo could also be retained in combination with the introduction, by way of statutory law which addresses the ambiguities and uncertainties in the present situation. One such option is to leave the Constitution in its present form and to re-enact the criminal prohibition on abortion in Ireland in the form of a new Act to replace the relevant provisions of the Offences Against the Person Act, 1861.
Such legislation would provide for a general criminal prohibition on abortion in the form of a criminal offence prosecutable on indictment. The legislation would provide that it would be a defence in any prosecution to establish that the actions in respect of which the prosecution was brought were taken by a doctor who was a registered medical practitioner and that the doctor in question had reasonable grounds to believe and did believe in good faith that the actions taken by him were necessary to avoid a real and substantial risk to the life, as distinct from the health, of the mother. The effect of such legislation would be to restate in strong terms the general criminal prohibition on abortion in Ireland, while at the same time leaving room for existing medical procedures subject to tightly controlled legal circumstances.
The present constitutional provisions, as interpreted by the Courts in the X and C cases, allow for termination of pregnancy to avoid a real and substantial suicide risk to the life of the mother. Under this option the suicide risk could be dealt with by including a mechanism to restrict any claim based on suicide risk to cases where the medical practitioner clearly proved any such risk in advance to an appropriate expert committee and authorisation would have to be obtained from the committee. Such a provision would act as a "double lock" against the possibility feared by many people that "suicide risk" justification could provide a back door to "abortion on demand".
Another possible approach to the suicide risk could be to exclude any defence based on psychological or psychiatric grounds (including suicide). This approach would, however, be vulnerable to constitutional challenge in the light of the X and C case judgments.
Legislation of the type outlined above would have the advantage of permitting existing medical practice to continue in relation to certain established medical procedures. Whichever approach was taken in such legislation to suicide risk-related termination of pregnancy, the legislation would guarantee that it did not become a "back door" to the availability of abortion on demand in Ireland.
This approach would seek to meet the criticisms made in the Supreme Court and elsewhere that the State had failed to provide any laws on foot of the constitutional amendment in 1983 to protect the life of the unborn in Ireland. In addition, it can be argued that legislation is capable of being more comprehensive and detailed than general provisions set out in the Constitution, and more capable of discriminating between desired and undesired consequences.
(v) Legislation to regulate Abortion as defined in the X case
The objective of this approach would be to implement the X case decision by means of legislation, i.e., to introduce legislation providing that a termination of pregnancy is lawful ". . . if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that that risk can only be avoided by the termination of pregnancy." This approach assumes that there would be no change in the existing wording of Article 40.3.3.
In formulating such legislation a possible approach may be not to restate the prohibition on abortion, which is already contained in section 58 of the Offences Against the Person Act, 1861, but instead to provide that a termination carried out in accordance with the legislation would not be an offence.
The detail of such legislation would require careful consideration but it could be along the lines of that discussed under the previous option (retention of the constitutional status quo with legislative restatement of the prohibition on abortion).
Discussion:
Since this option does not provide for a regime more liberal than the X case formulation, no constitutional amendment would be required. This option would, however, provide for abortion in defined circumstances and, as such, would be certain to encounter criticism from those who are opposed to abortion on any grounds and who disagreed with the decision in the X case. Central to the criticism would be the inclusion of the threat of suicide as a ground and the difficulties inherent in assessing same.
The main advantage of this approach is that it would provide a framework within which the need for an abortion could be assessed, rather than resolving the question on a case-by-case basis before the courts, with all the attendant publicity and debate. It would allow pregnant women who establish that there is a real and substantial risk to the their life to have an abortion in Ireland rather than travelling out of the jurisdiction, and would provide legal protection for medical and other personnel, such as nurses, involved in the procedure to terminate the pregnancy.
The current medical ethical guidelines would not be consistent with such legislation.
It must be pointed out, however, that the problems of definition in the text of Article 40.3.3 would remain. A decision would be necessary on whether the proposed legislation would provide the definitions necessary to remove the current ambiguity surrounding the text of that Article. There is, however, a limit to what legislation can achieve by way of definitions as ultimately the interpretation of Article 40.3.3 is a matter for the Courts.
(vi) Reversion to the pre-1983 position
This option envisages reverting back to the pre-1983 position by deleting Article 40.3.3, which was interpreted in Attorney General v X as permitting abortion if there is a real and substantial risk to the life, as distinct from the health, of the mother, including a risk of suicide. It would, as a consequence, involve reliance on the provisions of the Offences against the Person Act, 1861, and implied constitutional protection for the unborn referred to in the cases cited elsewhere in the Green Paper.
Discussion: As with all the options, it is important to be clear as to what the effects of the option would be, if implemented. It would appear that some who favour this option believe that deletion of Article 40.3.3 would negate the effect of the judgment in the X case and restore a simple prohibition on abortion as provided for in the Offences against the Person Act, 1861 and, in obiter dicta, in a number of cases up to 1984.
However, the removal of the provision which was inserted in the Constitution in 1983 would not of itself negate the decision in the X case. The decision in the X case was arrived at in order to protect the right to life of the mother. The right to life of a mother, as with that of any other born person, was fully protected in the Constitution before the 1983 amendment was passed. In this respect, the only change effected by the 1983 amendment was to equate the mother's right to life with that of the unborn.
Even in that situation, however, the court held in the X case that the mother's right to life must be protected, if necessary by the destruction of the unborn child. The removal of the 1983 amendment would not change this and if a future case arose, on the same facts as the X case, the court would still be constrained, if it followed the decision it arrived at in the X case, to hold that the mother's right to life entitled her to obtain an abortion.
It is useful at this point to repeat some of the detail of the provisions of the 1861 Act. The most notable interpretation of section 58 is contained in the English case R v Bourne where the Court, accepting that abortion to preserve the life of the pregnant woman is not unlawful for the purposes of section 58, ruled that, where a doctor was of the opinion that the probable consequence of a pregnancy was to render a woman a mental and physical wreck, he could properly be said to be operating for the purpose of preserving the life of the mother.
The Bourne decision has been followed in many other jurisdictions including Northern Ireland, Australia, Canada, New Zealand and the United States. In subsequent cases it has been suggested, e.g., in R v Newton and Stungo (United Kingdom) in 1958, that section 58 may be interpreted in a wider sense so as to permit abortion on grounds of physical and mental health.
The Bourne decision has not been specifically followed in any decision in the Irish courts. Furthermore, in Society for the Protection of the Unborn Child v Grogan and Ors, 1997, Keane J expressed the opinion obiter dicta that "the preponderance of judicial opinion in this country would suggest that the Bourne approach could not have been adopted in this country consistently with the Constitution prior to the Eighth Amendment."
Prior to the Eighth Amendment in 1983 the Irish Constitution did not contain any specific provision aimed at prohibiting abortion. However, obiter dicta in a number of cases suggested that the Constitution implicitly prohibited abortion and it is clear that the right to privacy under the Constitution has never been interpreted by the Courts in any case as encompassing a right to abortion.
The question arises as to whether the insertion of Article 40.3.3 achieved additional safeguards against the introduction of abortion. It became clear in the early 1980s and before that many who were opposed to abortion did not regard the existing provisions as adequate. It was argued that it was necessary to insert a specific article into the Constitution which would prohibit abortion. This was to avoid a situation where, by virtue of judicial interpretation of the right to privacy guaranteed in the Constitution, abortion was deemed to be lawful. The X case ruling therefore ran contrary to the intention of those who proposed the amendment.
It can be seen from the foregoing that the Offences against the Person Act, 1861 has been interpreted in other jurisdictions as permitting abortion in certain circumstances. While obiter dicta in cases prior to 1983 would indicate a constitutional prohibition on abortion, there is little guidance on how that prohibition would be reconciled with a threat to the life or the health of the mother, given that the mother's constitutional rights also require protection.
An alternative motivation for the deletion of Article 40.3.3 is the view that the insertion of provisions in the Constitution in relation to the unborn should not have occurred in the first place. Indeed some commentators have expressed the view that the Constitution is not the appropriate vehicle through which to deal with the complex issue of abortion.
If it was decided to attempt to revert to the pre-1983 position, the Constitution Review Group also raised the point that doctors would in that event have to be afforded legislative protection for appropriate medical intervention, on the basis that it could not be said how far, if at all, the 1861 Act's presumed protection for doctors would be effective in Ireland.
If this option were to be adopted and Article 40.3.3 deleted, at the very least the travel and information provisions of the Article could not be maintained in their present form. It could be anticipated that there would be a desire among many people to retain them in the Constitution as independent entitlements.
(vii) Allowing abortion on grounds beyond those specified in the X case
Other possible grounds for abortion are examined and set, where possible, in an international context elsewhere in the Green Paper. A number of submissions also sought the introduction of abortion on some or all of these grounds. Each of the possible types of provision identified has been considered separately. This does not rule out consideration of a combination of some or all of these options if this approach were to be pursued. Were this to be done, some of the difficulties identified when options are considered separately might not arise. In all of the cases discussed in this section, abortion would be permissible only if Article 40.3.3 of the Constitution were amended. Sections 58 and 59 of the Offences Against the Person Act, 1861 may also need to be reviewed and new legislation to regulate any new arrangement would be necessary. The type of legislative model referred to in the discussion on the option of retention of the constitutional status quo with legislative restatement of the prohibition on abortion might, with appropriate adaptations, serve as a basis for regulation in other circumstances also.
Issues such as criteria under which an abortion would be permissible, gestational limits, certification and counselling requirements, and possibly a waiting period after counselling, would be among the matters which legislation might address.
Discussion:
(a) Risk to physical/mental health of mother. This option would provide for abortion on grounds of risk to a woman's physical and/or mental health.
In 1992 the proposed Twelfth Amendment to the Constitution was the subject of some criticism on the grounds that it specifically excluded risk to health as grounds for termination of a pregnancy. The English Bourne case of 1938 involved interpretation of the Offences Against the Person Act, 1861 to permit termination of a pregnancy where a doctor thought that the probable consequence of continuing a pregnancy would be to make the woman a physical or mental wreck.
As stated earlier, this case has not been specifically followed in any decision of the Irish courts. Article 40.3.3 of the Constitution would rule out an interpretation of the Offences Against the Person Act, 1861 in the manner of the Bourne judgement. Therefore any proposal to permit abortion on the grounds of danger to a woman's health would require amendment of this Article and possibly a review of Sections 58 and 59 of the Offences Against the Person Act, 1861. A legislative framework to regulate the operation of such arrangements would also be required.
The concept of physical health used in other countries for the purposes of abortion law tends not to be very specific. If it were intended to permit abortion on grounds of risk to a woman's health, but to confine the operation of such a provision to cases where there was a grave risk of serious and permanent damage, it would be necessary to circumscribe the provisions in an appropriate manner. The usual practice in other countries is for the issue to be treated as a medical matter. It could be anticipated that it might be difficult to arrive at provisions which would allow clinical independence and at the same time be guaranteed to operate in a very strict manner so as not to permit abortion other than on a very limited basis.
(b) Abortion for Women Pregnant as a result of Rape or Incest. This option would permit abortion where a woman was pregnant as a result of rape or incest.
Some countries permit abortion where the woman is pregnant as a result of sexual assault. It should be noted that these countries tend to permit abortion on other grounds as well, which may enable some women who have been sexually assaulted to obtain an abortion on these grounds rather than the sexual assault provisions. These countries do not lay down a requirement that the sexual assault be verified. The reporting of the assault to the police is the principal requirement.
Legislative arrangements to permit abortion in circumstances where a woman had become pregnant as a result of sexual assault might consist of a requirement that the assault be reported to the Garda. The evidence is that many rapes are not reported to the Garda Siochana. There may be many reasons for this. However, the fact that this is so suggests that to permit an abortion only if a rape had been reported to the gardai would in effect make it available only if a woman was prepared to subject herself to the process which could follow if proceedings against any alleged rapist were instituted by the authorities.
There is also the question of legal proof with regard to rape outside the jurisdiction, for example, a case where a woman became pregnant after allegedly being raped while on holiday abroad.
In the case of a pregnant female under 17, since sexual intercourse with a person in this age category of itself constitutes a criminal offence, it could be argued that no further evidence of the circumstances in which the pregnancy occurred might be required in order for an abortion to be permissible.
As regards physical proof of rape, a woman might at the time of an assault have gone to a sexual assault treatment unit, but pregnancy, should it ensue, might not be confirmed for a number of weeks afterwards. The records made by a sexual assault treatment unit might, subject to considerations of confidentiality, provide a means of assessing a woman's claim to have been raped. However, such records would not in themselves amount to proof that a rape had occurred.
Practical difficulties could arise if it were a requirement that a prosecution be secured, or even commenced, in respect of the rape. The time factor is also a consideration in this regard, as a case would probably take months or even years to come before a court and in any event might not result in a prosecution.
The particular circumstances of many incest cases would also render problematical the operation of strict tests of proof, because of the ongoing and coercive nature of many such relationships.
Another option therefore would be to accept a woman's word that she had been the victim of sexual assault, with the option of this being corroborated insofar as possible but that such corroboration not be made an essential requirement.
Concern has been expressed that, if abortion were permitted on the grounds of sexual assault, it might not be possible to confine it to genuine cases and that women who wished to have an abortion for other reasons could do so under such a provision.
(c) Congenital Malformations. This option would permit abortion where a congenital malformation of the foetus had been diagnosed ante-natally.
The relevant provisions in other countries do not seem to include detailed specification of the conditions covered by such arrangements. Diagnosis that the foetus is impaired and the question of an abortion are matters between the woman and the medical personnel treating her.
This option is one of the most complex, were it to be considered. It could be expected that the question would arise as to what types of condition would be covered and how it could be ensured that the provisions would not be open to abuse, particularly if a tightly circumscribed arrangement were considered desirable.
It would not be practical to include in the Constitution a detailed specification of the types of conditions for which abortion would be permissible. It would be difficult even to do so in legislation, given the very lengthy list of conditions which might be involved. The desired parameters of any provision would also need to be considered, for example, would only conditions incompatible with survival after birth be at issue, or would a category such as "severe handicap" be admitted?
There is a wide spectrum of congenital malformations which cause greatly differing degrees of incapacitation or handicap. While pre-natal testing may indicate the likely presence of a handicapping condition, with many conditions the severity of a child's handicap is often apparent only after birth or during the child's developmental period. This could present a difficulty for any arrangement the intention of which was to permit abortion only in circumstances where a severe malformation of the foetus was diagnosed. Indeed, the difficulty of accurately diagnosing abnormalities in utero could result in the abortion of a foetus which was in fact healthy.
The chances of a child with some of the conditions considered surviving after birth vary according to the condition involved and the circumstances of each individual case. Therefore it would probably not be practical to have a category of "incompatibility with life", as the period of survival after birth can vary from nil to some hours, several days, weeks or even months.
For example, with anencephaly, where the brain fails to develop, most infants die during delivery but some may survive for a matter of hours. With some of the conditions involving chromosomal defects many children die in the early months of life, but some may live for considerably longer, even into adulthood.
Where gene defects are concerned, the hereditary nature of the conditions involved means that that chance of the condition being inherited by a carrier's children may be relatively high and there is a body of opinion which considers that termination should be available where pre-natal testing indicates the presence of the condition in the foetus. A contrary view is that abortion should not be permissible, even in such circumstances.
The issues identified above would require detailed examination if abortion on grounds of foetal impairment were to be considered. While other countries have legislation permitting abortion in these circumstances, it would appear that they specify in general, rather than specific, terms what types of condition are covered.
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