DESPITE the 1983 referendum to make abortion impossible under the Constitution, it is now technically legal in Ireland.
This follows the 1992 X case, in which the Supreme Court ruled that an abortion was lawful if there was a "real and substantial risk to the life of the mother". In that instance, it held that the mother's life was threatened by the possibility of suicide.
This ruling made the threat of suicide a ground for abortion. A later proposed amendment to the Constitution to remove this as a justification was defeated.
However, no one has yet invoked the Supreme Court judgment to justify carrying out an abortion and, in practice, abortions remain illegal in Ireland under the 1861 Offences Against the Person Act. It is also forbidden under the rules of the Medical Council, which govern doctors' conditions.
The 1861 Act prohibits "unlawfully procuring a miscarriage". This has always meant any procedure which proposes to cause the termination of a pregnancy. If a miscarriage was a by-product of another medical procedure needed to preserve the life of the mother, this was not seen as "unlawful".
The Medical Council's ethical guidelines allow for the possibility that an abortion may be necessary to protect the life of the mother but stress that this might be difficult to prove. Article 39.04 states: "While the necessity for abortion to preserve the life or health of the sick mother remains to be proved, it is unethical always to withhold treatment beneficial to a pregnant women by reason of her pregnancy.
Article 39.05 states: "Departure from these principles in practice may leave the doctor open to a charge of professional misconduct." This could result in the doctor being struck off the Medical Register and prevented from practising.
The Review Group on the Constitution identified problems with the present state of constitutional law on abortion. It found the lack of definition of the term "unborn" to be unsatisfactory as it was not clear what was being protected.
"In the context of abortion law, which deals with the termination of pregnancy, a definition is essential as to when pregnancy is considered to begin; the law should also specify in what circumstances a pregnancy may legitimately be terminated and by whom."
The members of the review group, which included a number of eminent constitutional lawyers, said "unborn" implied "capable of being born" which raised the question of the viability of the foetus.
The review group recommended that this and other problems be cleared up, either by further constitutional referendums or by legislation.