A Critical Analysis of the Heads of Bill and the Legal Necessity of Legislating for X.

Paul Brady B.L.

This article addresses two questions: what restrictions on abortion on the grounds of risk of suicide are and are not contained in Head 4 of the Protection of Life During Pregnancy Bill 2o13? What, if any, is the legal requirement to legislate for such abortions? In answer to the first question, the following claims are advanced: Head 4 creates a new and unprecedented statutory basis in Irish law for the direct and intentional termination of an unborn child’s life, i.e. for procured abortion, even after the point of viability outside the womb. Unsettlingly, and one hopes inadvertently, the Bill permits in principle, by reason of its definition of the “unborn”, the carrying out of a procured abortion upon a partially delivered baby. Further, there is no requirement that an abortion be certified under Head 4 only as a last resort after alternative treatments have been offered or tried. Finally, the requirement that three medical practitioners be involved in certification under Head 4 is not a robust safeguard due to the silence of the Bill on the mechanics of referral process. In answer to the second question it is argued that there is no legal obligation upon the Oireachtas, arising from the jurisprudence of either the European Court of Human Rights or the Irish Supreme Court, to enact primary legislation providing for abortion on the grounds of risk of suicide.

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