Failed early medical abortion and the standard of care in Irish negligence law

Failed abortion is a known side-effect of taking abortion pills (approx. 2% of medical abortions will fail). The current regulatory framework governing abortion in Ireland does not permit providers of early medical abortion (EMA) to deliver follow-up care to complete the failed abortion if the woman is beyond 12 weeks gestation and experiencing an ongoing pregnancy. This has significant, and potentially harmful, consequences – for the person seeking the abortion and for the pregnancy. Providers of EMA raised this with me as an issue of concern when they participated in interviews as part of the Conscientious Provision of Abortion Care project – “But my real concern about it is the woman who has had a failed termination; she needs to be able to complete… she has taken a highly teratogenic [causing developmental malformations] medication – that’s really, really bad” (Murray & Donnelly, 2023, pp. 13–14). This regulatory approach to failed EMA beyond the 12 week threshold also places abortion providers in a difficult position – they are required to practice within the terms of the legislative and regulatory framework governing abortion, but in doing so they are delivering care that is not aligned with best clinical practice. The law on the standard of care in medical negligence is a useful lens through which to examine this issue. It highlights that were it not for the current Model of Care (MOC) and its interpretation of the Health (Regulation of Termination of Pregnancy) Act 2018 (the 2018 Act), provision of abortion care which does not include access to appropriate follow-up care for a failed medical abortion would most likely fall short of the standard of care expected of a competent medical practitioner acting with ordinary care. This is a strong argument in favour of amending the MOC to enable providers to deliver appropriate patient-centred follow-up care.

What is preventing the delivery of follow-up care?

The explanation for why follow-up care is not provided in these circumstances can be found in the HSE Model of Care – Termination of Pregnancy Services (2023). The MOC is intended to provide more detail on care pathways and to enable clinicians to give effect to the legal framework contained in the 2018 Act. The MOC lists incomplete and failed abortion as possible complications of a termination of pregnancy and then states “if there is an ongoing pregnancy post termination and a resulting gestation exceeding 12 weeks, another termination of pregnancy (TOP) will not be permitted.” (HSE, 2023, p.27) This is a very strict interpretation of how the 12 week limit should operate in clinical practice and appears to be built on an understanding of abortion as a fixed event, rather than an ongoing process, even though the vast majority of early abortions are medical abortions. While a surgical abortion involves a procedure conducted by a clinician, and could perhaps more readily be characterised as an event, a medical abortion ‘takes time (hours or days) to complete and the timing may not be predictable’ (RCOG, 2022, p. 2). The MOC characterises treatment for a failed medical abortion as “another termination of pregnancy” rather than follow-up care for a known complication arising from the initial abortion which commenced within the statutory timeframe. Section 12(4) of the 2018 Act itself does not state that the abortion must be completed before 12 weeks, but rather provides that it “shall be carried out as soon as may be after the [mandatory waiting period] has elapsed but before the pregnancy has exceeded 12 weeks of pregnancy.” There is an argument that ‘be carried out’ should be interpreted as the performance of the actions which start the process of abortion – in the case of EMA taking the first and second medications. The MOC’s interpretation of 12 weeks as 12 weeks + 0 days further exacerbates the impact of the prohibition on follow-up care in cases of failed abortion at the threshold.

The consequence of this legal and regulatory position is that healthcare professionals are providing medications/treatments to patients, with a known side effect, but when that side effect materialises after 12 weeks gestation, they are prevented from doing what they would do in almost every other healthcare interaction. They are prevented by the current policy status quo from providing appropriate follow-up care and treatment to the patient to manage and treat the side effects, minimise harm, and complete the process.

Standard of care in Irish negligence law

The law on medical negligence in Ireland is well-established and is governed by what are known as the Dunne principles, set down by the Supreme Court over 30 years ago in Dunne v National Maternity Hospital [1989] IR 91. These have more recently been reaffirmed by the Irish courts, in Morrissey v HSE [2020] IESC 6 and Freeney v HSE [2020] IEHC 286. At the core of medical negligence cases is what is known as the standard of care – a medical professional is required to deliver the standard of care expected of a competent member of the relevant professional group, of equal skill (general or specialist) and experience. If the doctor fails to do that, if the care provided falls below what a practitioner of equal specialist skill or general status would provide while acting with ordinary care, and the plaintiff suffers harm as a result of that failure, then they may be civilly liable in negligence. The courts usually rely on expert medical evidence to determine what the standard of care is – comparing what was done in the particular case with what should reasonably have been done in the circumstances. Clinical guidelines and professional standards increasingly feature in medical negligence cases, reflecting their prominence in modern healthcare. Irish courts treat such guidelines as relevant and often persuasive evidence of accepted practice, but they do not equate them with the legal standard of care. The court retains authority to reject a claimed professional practice where it is shown to have inherent defects, meaning that it is unreasonable, unsafe, or fails to properly protect patient welfare.

Using the standard of care as a lens through which to critique the current approach to failed EMA in the MOC is useful because it highlights exactly what we are asking healthcare providers to do – deliver care that does not meet the usual legal standard of care and does not align with best clinical practice as set out in, for example, the WHO Abortion Care Guideline (2nd Ed, 2024) and the RCOG Best Practice in Abortion Care (2022) – and which has clear and serious implications for abortion seekers.

The argument here is not that abortion providers in Ireland are negligent because they are following the MOC. They are required to follow the MOC as it is intended to give effect to the legislative framework and acting outside of the legislative framework could potentially result in criminal sanctions for abortion providers (see section 23 of the 2018 Act). A court is unlikely to find that a clinician following a legally mandated practice was negligent. However, an argument can be made that if we look at what is required to meet the standard of care in negligence (delivering the level of care expected of a competent member of the relevant professional group, of equal skill, exercising ordinary care) then in the absence of the MOC the current approach to follow-on care in cases of failed abortion in Ireland would arguably fall short of that standard because it does not align with best clinical practice.

In building the argument that the current approach falls below what would be required to meet the standard of care (in the absence of the MOC and its interpretation of the 2018 Act) it is useful to consider the HSE consent form that must be signed before someone can proceed with an EMA.  It appears to acknowledge that the approach being adopted in relation to failed termination/follow-on care is outside the norm. The HSE Statement of Informed Consent – Medical Abortion form requires abortion seekers to tick a box stating they understand that “if my abortion fails and I have an ongoing pregnancy that goes beyond 12 weeks of pregnancy, it is illegal for a doctor to provide an abortion unless there is a risk to life or health, a risk to life or health in an emergency, or a condition likely to lead to death of foetus.” Informed consent as it is understood in tort law generally does not involve a ‘take it or leave it’ statement which advises the patient that accessing the healthcare is conditional on them accepting that if anything goes wrong, or if a known side-effect should arise, they cannot expect any help or aftercare. This is clearly not in accordance with the WHO Abortion Care Guidelines (2024) which state that “[p]rovision of post-abortion care is a core obligation of States under the right to Sexual and Reproductive Healthcare’ and ‘[r]egardless of whether abortion is legal or restricted, States are required to ensure access to post-abortion care’ (p.11).

Conclusion

Some of the difficulties outlined here have been pointed out elsewhere. The O’Shea Report (2023) on the operation of the 2018 Act recommended that the 12 week limit should be extended in circumstances where it is necessary to allow a failed termination to be completed. Unfortunately, that recommendation has not been implemented and does not appear to be on the legislative agenda at present. An alternative approach to the same issue has been suggested by Fletcher (2025), who points out that it is possible to interpret, and implement, section 12 of the 2018 Act as it currently stands so that it allows a pause or interruption of the 12 week time limit in order to accommodate the purpose of section 12 i.e. the completion of an early medical abortion.

The objective here is to use the standard of care in medical negligence to make the case that the current regulatory approach to failed abortions after 12 weeks where there is an ongoing pregnancy is failing both those who need abortions and abortion providers. The pregnant person has been left significantly worse off after commencing a lawful abortion, and healthcare providers are being prevented from acting in accordance with best clinical practice. This undermines the delivery of an EMA service that is operating effectively in many other respects. The harm could be reduced through amendments to the MOC to categorise failed EMA as a complication of the original procedure, which was commenced within the statutory timeframe, and which should be addressed by appropriate follow-on care, up to and beyond 12 weeks, including further medical or surgical management until the abortion is complete.

Finally, this issue also highlights the ongoing reliance by the State on travel outside the jurisdiction as a safety net for the shortcomings in the current law on abortion. There is an assumption that most people who are affected by this issue will travel to obtain suitable follow-up abortion care, despite being legally entitled to an abortion in Ireland and having commenced the process within the legislative timeframe. As always, it is important to note that not everyone is in a position to travel, and therefore the safety net is not always available.

Claire Murray is a Senior Lecturer in the School of Law, University College Cork