Professor Sjef Gevers:

I thank the Chairman. I will start with a short introduction to myself and my background. I have a background in law and sociology. I was professor of health law for more than 20 years in the University of Amsterdam in the faculties of law and medicine, in the academic medical centre where my colleague, Professor Pajkrt, also works. I was a former editor-in-chief of a European journal of health law and of the Dutch journal of health law. For more than 25 years I was a member of the Dutch health council advising the government on health and the ethical and legal aspects of health care, and, in relation to today's subject, I was responsible for the first evaluation of the abortion Act in the Netherlands which took place in 2005, 20 years after it was issued in 1985. We conducted a nationwide study of how it was applied and functioned.

I thank the committee for the invitation to inform it about abortion law and practice in the Netherlands. We have already given the committee an overview of the Dutch situation in our joint paper. In this opening statement we will briefly summarise this paper, focusing first on the law, which I will do, and then on the practice in the Netherlands, which my colleague, Professor Pajkrt, will do.

I will say a few words first on the termination of pregnancy Act as it was enacted in 1984.

Terminating a pregnancy is a crime under Article 296 of the Dutch penal code. The abortion Act is based on the criminal law and abortion is an exception to the basic prohibition in the criminal law. According to the fifth paragraph of Article 296, abortion will not be punished if carried out by a doctor in a hospital or abortion clinic with a licence in accordance with the termination of pregnancy Act. The Act is known in common or lay terms as the abortion Act and I will use this term in the rest of my contribution. The Act was adopted in 1981 and, as I stated, it came into force in 1984 after a long history and more than ten years of public and political debate. Several Bills were introduced in Parliament and only the last Bill was narrowly accepted with a voting margin of 38 in favour and 37 against. The two conflicting values that had to be accommodated in the legislation were clearly expressed by the Government of the Netherlands during parliamentary proceedings. The Government stated:

The Bill is based on the view that women, who are in a situation of emergency due to an unwanted pregnancy, should receive help. But we consider the termination of unborn human life as such a serious act, that it is only acceptable if unavoidable because of that emergency. This means that the physician, the woman and others that may be involved before the decision to terminate, need to act with utmost care and in awareness of their responsibility towards unborn human life and of the consequences for the woman.

At the moment, 93 hospitals and 15 clinics have a licence to terminate pregnancies within the limits set by the abortion Act. Licences are granted by the Minister of health to establishments that satisfy statutory requirements relating to the quality of treatment in terms of medical competence and facilities as well as psychological care. The directors of these establishments must submit periodic reports to the Health Care Inspectorate about the number of patients they have treated and some characteristics of these patients. The figures are published in the inspectorate's annual report. It is important to stress that abortion is not seen as a routine medical procedure but as one that may only be carried out at the request of the woman if her circumstances leave her no other alternative.

I will say a few words about the key provisions of the abortion Act, which relate to careful decision-making, because this is the substance of the Act. Termination may only take place if a situation of emergency of the woman makes this inevitable. An emergency refers to the psychological state of mind of the woman due to an unwanted pregnancy and does not require the risk of physical or mental injury. The Act does not provide substantive, general criteria for assessing whether the situation of the woman amounts to an emergency. The legislator has adopted this approach because the decision to terminate a pregnancy must be taken with due regard for the individual circumstances of each case.

Both the woman and the doctor are responsible for the process of reaching a decision, although the decision as such is ultimately made by the woman. The physician shall assist the woman requesting an abortion in making up her mind. For that purpose, the doctor must provide the woman with appropriate information about other solutions to her situation and see to it that her request is made and maintained freely and without undue pressure from other persons. The doctor must also see to it that the woman insists on her request only after careful consideration. To ensure sufficient reflection, the Act requires a reflection period of five days between the initial request of the woman and the eventual termination of her pregnancy. An exception to this requirement is only possible when the health or life of the woman is at risk.

I will not elaborate much on other provisions of the abortion Act. One important point, however, is that health professionals are never obliged and cannot be obliged, for instance, by employers or other persons, to perform an abortion and conscientious objections must always be respected. Furthermore, physicians carrying out abortions must keep medical records on the reasons in each case they decided to terminate a pregnancy. If requested, they must give the inspectorate access to these data. Mention should also be made of the obligation to provide adequate care after the termination has been performed. This includes not only a medical check and psycho-social assistance, if needed, but an obligation on the establishment where the abortion takes place to provide information and education concerning the prevention of undesired pregnancies.

I will now say a few words on what does not fall under the abortion Act. I refer to three different interventions. First, so-called morning after methods, such as the use of a morning after pill, are not considered to be a way to induce an abortion and are, therefore, not covered by the Act. The reason is that these are methods to prevent conception, which means there will be no pregnancy. The second circumstance that does not fall within the Act is when abortion takes place as an unavoidable side-effect of a necessary medical intervention or if continuation of the pregnancy would endanger the life of the mother. Although formally such an abortion still comes under the penal code, no prosecution will take place because the doctor is considered to have acted in a situation of force majeureand he or she can invoke the defence of necessity in legal terms, resulting from a conflict of duties. Criminal proceedings will not be taken in such circumstances.

The third intervention is slightly more complicated and relates to inducing an abortion within 44 days after the first day of the last menstrual period, that is, where menstruation is 16 days overdue. This circumstance does not fall within the provisions of the abortion Act and is, if I may say so, a bit special. It means that although the abortion must still be performed in a hospital or an abortion clinic with a licence, formally, the provisions of the abortion Act, including the statutory waiting and reflection period, do not apply. This interpretation of the Act dates to the beginning of the 1980s when the abortion Act was adopted and came into force. At that time, it was not yet possible to confirm the existence of an early pregnancy beyond doubt. Although this is no longer the case - we now have far better medical methods, on which Professor Pajkrt will elaborate, if necessary - this restrictive interpretation of the scope of the Act has survived until today. In practice, however, the requirements of the Act relating to careful decision-making are usually observed in such cases of early pregnancy.

While the abortion Act does not set a time limit for abortion, the penal code does. According to Article 82a of the code, abortion amounts to a crime against human life if the unborn child has developed to the point where it is able to survive outside the womb. This is known as foetal viability. On the basis of current medical opinion, this is after 24 weeks of gestation. In practice, however, a period of 22 weeks is used, if I am correct. After this time limit, the doctor involved can only defend himself or herself by invoking a situation of necessity or a conflict of duties.

If I may, I will conclude by saying a few words on the evaluation of the abortion Act which took place in 2005. Many health laws in the Netherlands are evaluated after four or five years.

The idea is that we should have a look at whether they work in practice, whether they are complied with, whether they achieve their goals, etc. There was no such obligation within the abortion Act itself. Perhaps that is because it was already enacted in the 1980s. The way it operates in practice, however, is closely followed, in particular, by pro-life groups - of course, we have them in the Netherlands - and some of the political parties which are concerned that our legislation is applied too liberally. To address these concerns, when a new coalition was formed in 2002, it was agreed that the application of the abortion Act would be the subject of a nationwide study.

In 2005, as I said, the evaluation report was published. Its overall conclusion is that the compliance by clinics and hospitals with the Act was satisfactory and that health professionals did what the law required of them to ensure that decisions concerning abortion were taken in a careful way. Furthermore, the report concludes that abortion services are available and accessible where needed and that, in general, they are of good quality.

One interesting point we found relates to the interviews we held with many women who had gone through this process of requesting an abortion and having one. I picked this out of the 250-page report to put it forward here. According to the women who were interviewed, the reasons for requesting an abortion are quite diverse. They range from financial and housing constraints, to age, the fact that the family is already complete, a broken or fragile relationship, lack of possibilities to raise a child, and then, of course, sometimes medical reasons in the strict sense of the word. Most often, there is more than one reason to request abortion. This is also confirmed in a later study conducted in 2012 by the University of Utrecht and commissioned by the Ministry of Health in the Netherlands. The outcome was that most women who were interviewed said that their final decision was the result of a number of reasons and should be seen against the background of their present situation in life. All of them, according to the report, experienced the decision to terminate their pregnancies as a hard one, and some of them experienced it as the most difficult decision in their lives.

Finally, last year, a new evaluation of the abortion Act was planned. It should have taken place this year but has been postponed because the Government fell. It was replaced last month by a new Government and the Parliament decided to allow the latter to decide on how this new evaluation of the Act should proceed.