Ms Marie O'Shea:

I will present the opening statement. I thank the committee very much for the opportunity to discuss the report of the independent review established in December 2021 to examine the operation of the Health (Regulation of Termination of Pregnancy) Act 2018.

The terms of reference called for an assessment of the extent to which the objectives of the Act have and have not been achieved; an assessment of the impact of its operation on access to termination of pregnancy services in the State and, in that sense, taking into account the level of service provision prior to commencement of the Act; figures on Irish women accessing termination of pregnancy in this country and in other jurisdictions; an examination of the arrangements put in place to implement the Act; and to make recommendations, as appropriate.

The report is evidence based. Pursuant to the terms of reference provided by the Department of Health, the report is informed by three strands of evidence. The first of these is the Report of the Unplanned Pregnancy and Abortion Care, known as the UnPAC Study, which was authored by Dr. Catherine Conlon, Dr. Kate Antosik-Parsons and Dr. Éadaoin Butler from the school of social work and social policy at Trinity College Dublin. This research was commissioned by the HSE sexual health and crisis pregnancy programme to develop an in-depth understanding of the experiences of people who have accessed unplanned pregnancy support services and abortion services since 1 January 2019. That project began in December 2019 and was published in July 2022.

The report is also informed by a realist evaluation of health providers’ perspectives of termination of pregnancy service implementation led by Dr. Deirdre Duffy, who was a reader in critical social policy at Manchester Metropolitan University when she was awarded the research contract by the Department of Health following a tender process. That research was conducted by Dr. Duffy, Dr. Lorraine Grimes from Maynooth University, with research assistance from Ms Bethany Jay and Mr. Jack Callan. It was also informed by a public consultation that received 6,976 submissions and was designed and facilitated by the Department of Health and analysed by M-Co, which was appointed by the Department. Additionally, supplemental research, in the form of a survey of GP practitioners, to provide a picture of termination of pregnancy in general practice and explore further the reasons for provision and non-provision, the scale of non-provision and the impact of provision in secondary care on the provision in primary care, was also conducted as an adjunct to the review of health providers’ perspectives.

The report is also informed by meetings I had with three service users, six service providers in the primary care setting,16 service providers in the hospital setting, senior management personnel in a non-providing unit and nine key senior personnel in the HSE and Department of Health; my attendance at the annual conference of the Southern Taskforce on Abortion and Reproductive Topics, START, which is an organisation comprising approximately 300 service providers from different disciplines; the preliminary findings of the Conscientious Objection after Repeal, Abortion, Law and Ethics project known as the CORALE study, which was led by Dr. Andrea Mulligan and Professor Joan Lawlor from Trinity College Dublin. This study investigates the operation of the right to conscientious objection in termination of pregnancy services in Ireland, and is also informed by a review of the literature.

To ensure that the report was underpinned by academic rigour, I invited Dr. Catherine Conlon to advise on methodology. I became aware of her academic interest in the area of termination of pregnancy upon seeing her named as the author of the UnPAC report in the terms of reference provided to me by the Department of Health.

The recommendations of the report are grounded in reality. Dr. Mark Murphy, GP, and Dr. Vicky O’Dwyer, consultant obstetrician, provided opinions on the draft recommendations. They were nominated by the president of the Irish College of General Practitioners, ICGP, and the chair of the Institute of Obstetricians and Gynaecologists, respectively. The report was also informed by the evidence-based Abortion Care Guideline, published by the World Health Organisation in 2022.

The objectives of the Act, which are to provide abortion services in circumstances where pregnancy does not exceed 12 weeks, provided for in section 12, and beyond that point, where there is a risk to life or of serious harm to the pregnant woman, provided for in sections 9 and 10, or where there is a condition present that is likely to lead to the death of the foetus before birth or within 28 days of being born, provided for in section 11, are being achieved but not in all cases. Significantly, the review discovered that women who may be eligible for care in Ireland may be travelling to procure termination of pregnancy services abroad in circumstances where they presented themselves to the GP before their pregnancy exceeded 12 weeks but timed out due to the health system not being able to provide the service within the prescribed timeframe; they presented themselves to the GP before the pregnancy exceeded 12 weeks, received treatment which failed, they continued to be pregnant and subsequently timed out of care; their request for a termination of pregnancy was refused due to the challenges that arise for medical practitioners in applying sections 9 to 11, inclusive, of the Act; the decision-making process around eligibility for a termination of pregnancy under the grounds of section 9 to 11 felt so protracted and uncertain that they feared they would exceed the time limit for termination of pregnancy in another jurisdiction; and they were unaware of their right to access care under sections 9 and 10 and their medical practitioners were unable to advise them due to a lack of clinical guidance and standardised pathways of care, in circumstances where a patient presents with, for example, mental health risk, cardiac risk, cancer care risk or teratogenic high-risk medication.

Notably, the review presents evidence of the negative effects on service users of the mandatory three-day waiting period in the early termination of pregnancy regime. In practice, the wait may extend beyond three days if it coincides with weekends or public holidays. The report addresses the challenges of operationalising the sections of the Act experienced by providing healthcare professionals and the negative effects that ensue from criminalisation of medical practitioners which risks the practice of defensive medicine and exerts a dissuasive influence over decisions to participate in the provision of services.

The Act does not sufficiently address the balance between the right to conscientiously object and the right to receive healthcare, specifically to enable employers to make the requisite inquiries in the recruitment process to identify candidates who would be willing to perform abortion services. There is believed to be a direct correlation between a GP’s decision to provide the service and the proximity of a providing maternity hospital. The review reveals the uneven geographic distribution of primary care and hospital services. As of February 2023, 422 contracts had been entered into between primary care providers and the HSE and 11 of 19 maternity units were providing full services under the Act. The right to exercise conscientious objection by consultants has been attributed by senior managers at the HSE as a major reason hospitals do not provide full services. The members of senior management at a non-providing unit with whom I met also attributed the lack of service provision to its consultants holding a conscientious objection.

Recruitment of consultants willing to provide the service is key to implementing the strategy to increase the number of providing maternity units. However, the review uncovered an apparent lack of clarity about whether employers could ask candidates about their willingness to provide abortion services or whether this could feature as a term of the contract, due to the provisions of the Employment Equality Acts 1998 to 2015. There have been two known appointments where the successful candidates, on commencing employment, declared that they held a conscientious objection to abortion.

The report contains ten recommended changes to the legislation to address the challenges and barriers to service delivery related to its provisions. It also recommends that the Department of Health take a collective leadership approach, involving health care professionals, patient representatives, lawyers and, if required, ethicists to obtain a better understanding of the difficulties surrounding operating section 11, in diagnosis and prognosis, and how the challenges can negatively impact on parents, and to consider alternative grounds that would be clear to apply in practice and would be in keeping with the spirit of the legislation. The report further recommends that a collective leadership approach should be taken to assist the Department of Health with developing guidelines to accompany the statute to assist healthcare professionals in implementing sections 9 and 10.

The report includes recommendations to address gaps in resources that are barriers to service delivery. It includes a summary of the evidence-based improvement guide to delivery of excellent services that emerged from the findings of the realist evaluation conducted by Dr. Duffy and Dr. Grimes.

I have heard senior members of Government and others voice concerns about changes to the legislation, fearing that they would be perceived as being tantamount to a breach of promise with the electorate. I have heard them express their reluctance to amend the Act in accordance with the recommendations contained in the report. At first sight, this is an understandable response. The draft framework of the legislation was presented to the people of Ireland prior to the referendum in May 2018 to provide clarity as to how termination of pregnancy services would be regulated. I think it is reasonable to say that among the 66.4% of those who voted in favour of repeal of the eighth amendment were people who would have been influenced by the scope of the proposed regulations. They may hold genuine fear that the recommendations contained in the report represent the start of a creep towards a more progressive termination of pregnancy regime.

I want to assure this committee that that is not the purpose of the recommendations. I believe the electorate could not have foreseen the difficulties that would arise in operationalising the Act. The Legislature included a provision to review the operation of the Act after three years. The inclusion of this provision reflects good practice in the modern-day design and roll-out of new health services, which are evidence-based, piloted and adapted to ensure they are capable of achieving their objectives and being implemented before being fully rolled out. My hope is that the review will lead to legislative change. This will require strong leadership and courage from the Government.