The Right to Travel for Abortion Services: A Case Study in Irish ‘Cross-border Reproductive Care’

in European Journal of Health Law
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Abortion is illegal in Ireland, except in very limited circumstances, but the Irish Constitution guarantees the right of women to travel abroad to obtain abortion services. Every year, large numbers of women travel to the uk to obtain abortions. This article argues that this can be regarded as an illustration of cross-border reproductive care (cbrc). cbrc is the phenomenon whereby people travel abroad to obtain assisted reproduction services that are illegal in their country of origin. A leading commentator, Guido Pennings, argues that cbrc is to be welcomed as a means by which society might compromise on issues of profound moral disagreement. Other commentators believe cbrc is highly problematic. This article argues that the Irish abortion example, when examined as an example of cbrc, illustrates both the advantages and disadvantages of cbrc identified by Pennings and his critics.

The Right to Travel for Abortion Services: A Case Study in Irish ‘Cross-border Reproductive Care’

in European Journal of Health Law

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References

6

See for example I.G. Cohen‘Circumvention Tourism’Cornell Law Review 97 (2011-2012) 1309-1398; E. Blyth and A. Farrand ‘Reproductive Tourism —; a price worth paying for reproductive autonomy?’ Critical Social Policy 25 (2005) 91-114.

7

G. Pennings and W. Van Hoof‘Extraterritorial Laws for Cross-Border Reproductive Care: The Issue of Legal Diversity’European Journal of Health Law 19 (2012) 187-200; G. Pennings ‘Cross-border reproductive care in Belgium’ 24(12) Human Reproduction (2009) 3108-3118; G. Pennings ‘The Rough Guide to Insemination: Cross Border Travelling for Donor Semen Due to Different Regulations’ ObGyn Monograph (2010) 55-60; G. Pennings ‘Reproductive Tourism as Moral Pluralism in Motion’ Journal of Medical Ethics 28 (2002) 337-341; G. Pennings ‘Legal Harmonisation and reproductive tourism in Europe’ Human Reproduction 19(12) (2004) 2689-2694.

8

R. Storrow‘Assisted Reproduction on Treacherous Terrain: the legal hazards of cross-border reproductive travel’Reproductive Biomedicine Online 23 (2011) 538-545; R. Storrow ‘The Pluralism Problem in Cross Border Reproductive Care’ Human Reproduction 25(12) (2010) 2939-2943 R. Storrow ‘Quests for Conception: Fertility Tourists Globalization and Feminist Legal Theory’ Hastings Law Journal 57 (2005-2006) 295-330.

10

Pennings and Van Hoofsupra note 7.

17

European Parliament 2009. Report on the proposal for a directive of the European Parliament and of the Council on the application of patients’ rights in cross-border healthcare (com(2008)0414 —; C6-0257/2008 — 2008/0142(cod)) Committee on the Environment Public Health and Food Safety. Directive 2011/24/eu of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare recitals 33 and 7.

19

Pennings (2009) supra note 7. On Belgian law see also G. Pennings ‘Belgian Law on Medically Assisted Reproduction and the Disposition of Supernumerary Embryos and Gametes’ European Journal of Health Law 14(3) (2007) 251-260.

20

See also Pennings (2010)supra note 7.

22

See Pennings (2002)supra note 7 p. 339.

27

B. Van Beers‘Is Europe ‘Giving In to Baby Markets?’, Reproductive Tourism in Europe and the Gradual Erosion of Existing Legal Limits to Reproductive Markets’Medical Law Review 23(1) (2015) 103-134 Advance Access Publication: 27 May 2014.

29

R. Deech‘Reproductive Tourism in Europe: Infertility and Human Rights’Global Governance 9 (2003) 425-431; Pennings (2002) supra note 7.

30

Van Beerssupra note 27.

31

Pennings (2002)supra note 7.

33

Penningsibid. p. 340.

35

Pennings (2002)supra note 7 p. 340.

39

Blyth and Farrand make this argumentsupra note 6. See also J.A. Robertson ‘Protecting Embryos and Burdening Women: Assisted Reproduction in Italy’ Human Reproduction 19 (2004) 1693-1696.

40

Storrow (2010)supra note 8 p. 2939.

41

See also Storrow (2005-2006)supra note 8.

42

Storrow (2010)supra note 8 p. 2941.

43

Van Beerssupra note 27.

47

J. Kingston A. Whelan and I. BacikAbortion and the Law (Dublin: Round Hall, Sweet & Maxwell1997) chapter 3. Lord Ellenborough’s Act passed in 1803 made abortion of a quickened foetus a felony and the Offences Against the Person Act 1837 extended the felony to all foetuses quickened or not. The point of “quickening” was the point at which the foetus’s movements became apparent to the pregnant woman.

53

R. Byrne and W. BinchyAnnual Review of Irish Law 2009 (Dublin: Round Hall2009) p. 471.

56

G. Hogan and G. Whyte (eds.)JM Kelly: The Irish Constitution (Dublin: Butterworths2003).

63

Ibid. p. 55. N. Kiely ‘State Attempts to Stop Girl’s Abortion’ The Irish Times 12 February 1992; Editorial ‘Protests in Dublin London’ The Irish Times 15 February 1992; Editorial ‘Descent into Cruelty’ The Irish Times 18 February 1992.

80

L. Smyth‘Narratives of Irishness and the Problem of Abortion: The X Case 1992’Feminist Review 60 (1998) 61-83; Cohen supra note 2; W. Duncan ‘Law and the Irish Psyche: The Conflict between Aspiration and Experience’ The Irish Journal of Psychology (1994) 15(2-3) 448-55.

83

Protection of Life During Pregnancy Act 2013sections 7 and 8. Section 8 deals with emergency procedures.

84

Protection of Life During Pregnancy Act 2013section 9.

85

Protection of Life During Pregnancy Act 2013section 10.

89

K. Holland‘College tells psychiatrists not to do abortion assessments’The Irish Times3 January 2014.

90

K. Holland‘Agency gets two-month care order for baby in ‘Ms. Y’, case,’ The Irish Times13 September 2014.

92

B. O’Halloran‘Minister rejects call for abortion referendum on day of same-sex marriage vote’The Irish Times19 September 2014.

95

J.A. RobertsonChildren of Choice (Princeton: Princeton University Press1994).

98

P. Leahy‘Comment: Poll Shows Electorate Conflicted on Abortion’Sunday Business Post 3 December 2012. spb/Red C Poll showing some support for abortion law reform such as 50% of 18-24 year olds and 36% of the general population in favour of ‘abortion on demand’. An Irish Times/Ipsos mrbi poll in June 2013 found that 83% of people were in favour of allowing abortion in cases where the foetus could not survive outside the womb while 81% were in favour of allowing abortion in cases of rape or abuse. 39% of people said that abortion should be permitted where a woman deems it to be in her best interests. S. Collins ‘Poll Suggests Strong Support for Proposed Legislation’ The Irish Times 13 June 2013; S. Collins ‘Ipsos/mrbi Poll Shows Wide Support for More Liberal Abortion Law’ The Irish Times 13 June 2013.

104

M. Gilmartin and A. White‘Interrogating Medical Tourism: Ireland, Abortion and Mobility Rights’Journal of Women in Culture and Society 36(2) (2011) 275-280 at p. 279.

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