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FactCheck: Does Irish law allow for 'gender selection abortions'?

Aontú has made this claim on a number of occasions, but does it stack up?

For general Factchecks not about Covid

IN AN INSTAGRAM post earlier this month, political party Aontú shared a screenshot of a tweet which said that “gender selection abortion is completely legal in Ireland”. 

The post was in response to research from 12 countries where the male-to-female ratio had increased in the past 40 years, leading to estimates that sex-selective practices in countries with a cultural preference for male offspring could see 4.7 million fewer girls born globally in the next ten years. 

The Aontú post added that party leader Peadar Tóibín TD sought to introduce an a Dáil amendment in 2018 “seeking to ban sex-selective abortions in Ireland” and will do so again. 

The post was also accompanied by a press release from Aontú about “gender selection abortions in Ireland” which said that the State “blatantly allows for the targeting of baby girls”. 

In the statement, Tóibín pledged to bring in a bill in the next Dáil term to ban such practices. 

The claim

Gender selection abortion is legal in Ireland and the law allows for the targeting of baby girls. 

The evidence

To investigate the above claims, it is necessary to outline the relevant laws around terminations in Ireland.

The laws were introduced following the 2018 referendum to repeal the Eighth Amendment and the subsequent Dáil legislation giving effect to that vote. 

In Ireland, a termination of pregnancy is available on an unrestricted basis up to 12 weeks of pregnancy.

However, by law there is a required three-day wait period between a consultation with a doctor and the abortion taking place, which at that stage of pregnancy usually involves taking medication to end the pregnancy

It means that, practically speaking, for a person seeking a termination without restriction they are required to begin the process no later than 11 weeks and a number of days into their pregnancy. 

Terminations beyond the 12-week limit are only lawful in the case of a fatal foetal abnormality or a risk to the life or serious harm to the pregnant person. 

Such terminations beyond 12 weeks would therefore not be lawful for sex selection. 

The Journal sent a series of questions to Tóibín about the issue.

In response, he said the fact that there was no specific ban on abortion “on the grounds of sex” meant that it was correct to say that it was  “completely legal by any normal understanding of the phrase”.

Ultrasound scan

PastedImage-19988 Scans generally cannot determine gender before 16 weeks. Source: Shutterstock

We must now outline how, when and why foetal gender is determined during pregnancy and how this impacts the claim being investigated.  

The Journal spoke to three obstetricians who each said that gender is primarily determined by way of an ultrasound scan.

Each said that gender can be identified at between 15-17 weeks of pregnancy, with 16 weeks being the generally accepted time period. 

Consultant obstetrician at the Rotunda Hospital Dr Karen Flood and Master of the Rotunda Hospital Professor Fergal Malone both said that it is possible to determine the gender sooner if the foetus is male because of the appearance of genitalia. 

Malone said “you might be able to see something as early as 12 weeks” in “exceptional cases if a patient was thin and if the baby was male”. 

Both said however that a later scan would be required to be definitive.

Asked when the gender of an unborn baby could be identified, Prof. Malone said: 

That would probably be by about 16 weeks in most cases, you should be able to see gender. For obvious logical reasons, a male foetus is easier to spot on ultrasound with confidence than a female’s foetus, seeing something between the legs is always more reliable than seeing nothing. If you don’t see anything you may not be sure, either because it’s female or because you just don’t have a good view. But you may see male gender on a scan before 14 weeks. Potentially even at 12 weeks it is possible to give a good stab at it.

Malone added, however, that an obstetrician “wouldn’t confidently diagnose gender by ultrasound before 16 weeks”. 

Flood agrees: “Sometimes you might get an impression at 12 weeks, but you certainly wouldn’t say it definitively, absolutely not.” 

A third Consultant Obstetrician & Gynaecologist, Dr Mary McCaffrey of The Scotia Clinic in Kerry, also outlines the same timeline. 

“On an ultrasound scan, the really earliest time that you can definitively be as sure as you will ever be is about 17 weeks. Sometimes you can be very, very lucky, a little bit earlier and you might on a 3D scan see gender at 13 weeks,” she says. 

“If you see that it’s a male foetus and there’s testicles that’s kind of reassuring, but if you don’t see testicles, you can’t say it’s definitely female because the testes often don’t come down until about 17 weeks.” 

file-photo-the-rotunda-hospital-has-defended-its-ongoing-restrictions-against-partner-visits-citing-low-vaccination-rates-and-high-covid-infection-rates-amongst-pregnant-women-end Master of the Rotunda Hospital Professor Fergal Malone. Source: RollingNews.ie

Both Flood and Malone also point out that while 16 weeks may be the accepted period when gender may be determined by scan, most Irish women do not have their “big scan” until 20 weeks of pregnancy. 

Either way, in terms of an ultrasound scan, it is clear that it is not possible to determine the sex of an unborn baby by ultrasound at the point during pregnancy at which unrestricted abortion is legal. 

Non-invasive prenatal testing (NIPT) 

In his response to the The Journal, Tóibín claimed that “gender selection abortions could be taking place in Ireland” because of the increasing use of non-invasive prenatal testing (NIPT).

An NIPT, also known as a foetal DNA test, analyses DNA from the unborn child that is circulating in the pregnant person’s blood. 

The blood test is primarily used to screen for a number of chromosomal conditions such as Down syndrome. As it is a chromosomal test, it can also be be used to determine the sex of an unborn baby. 

The test is very accurate in determining sex but it can only be undertaken when levels of foetal DNA are high enough in the mother’s blood to be tested.

Each of the three obstetricians who spoke to The Journal said this is at about 9-10 weeks of pregnancy. 

NIPT tests are not standard in pregnancy care in Ireland but can be undertaken privately at a cost usually of up to €450.

There are two brand names commercially available, Panorama and Harmony, with the former claiming the test can be taken at nine weeks and the latter at 10 weeks

The tests usually take two weeks (8-10 working days) to be returned to the mother or parents involved. 

Professor Malone told The Journal that NIPT tests are “getting more popular” but that this is due to people seeking to screen for chromosomal conditions rather than determining sex. 

He estimates that for the 9,000 or so births each year in the Rotunda, there are about 4,000 NIPT tests

Dr. Flood also agrees that the primary reason for the tests is screening and that it is “50/50″ whether people also use them to determine the sex. 

“The reason for the NIPT is for determining Down syndrome or the other two common chromosomal issues. But as part of that test you can tick the box to see if you want to know the gender but that’s not really the reason people do the test.

People do the test as a screening test. It’s an opt-in and separate to the normal course, so people might opt-in and pay for that separately if they want to get that test. And usually we do that after about 10 weeks.

Dr. Flood adds: “The companies say you can do it at about nine weeks but in our experience there’s not enough of the baby’s DNA in the blood at that stage, so we usually recommend that they wait until after 10 weeks at least.”

With the timelines involved, 9-10 weeks into pregnancy and a two-week wait period, Professor Malone says it may theoretically possible to determine the gender before 11.5 weeks but it is unlikely and impractical:

It takes about two weeks for the results to come back. So if you do a Harmony at 10 weeks you’d have the results at 12, if you did a Panorama at nine, you’d have the results at 11. But the bottom line from where you’re probably going with this, at a practical level it would be very difficult for people to get gender sorted out in time to be reliably under the 12-week limit for a termination without restriction. 

He adds: “If you had an answer of, shall we say a gender that you ‘didn’t want’, yes it is theoretically possible that you could present yourself for a termination for 12 weeks. But that would be very, very unusual. You have to be very determined and know a lot about the system to do that.”

Most people won’t get blood or ultrasound done in sufficient time to get in under 12 weeks. As an obstetrician I don’t think I’ve ever come across a case of gender-based termination since the legislation for termination came in.

Dr. McCaffrey also agrees that while having an NIPT gender result at 11 weeks is “theoretically” possible it is not something she’s sees as very feasible. 

“If you did a foetal DNA test, you can’t do them realistically any earlier than 10 weeks, and the results take about seven or so days to come back, seven to 10 working days. Then theoretically you would know the gender at 11 weeks, theoretically, so then the abortion limit is obviously 11 and a number of days. One would be cutting it very fine,” she says. 

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Each of the three obstetricians who spoke to The Journal said they had not come across any examples of sex selective abortions taking place in Ireland.

peadar-toibin-resigns-from-sinn-fein Aontú Peadar Toibín. Source: Sam Boal/RollingNews.ie

In response to questions from The Journal on whether gender selection abortion was taking place in Ireland, Tóibín said there are “no means to collect this data” but that “it would be foolish to think they never happen here”. 

Tóibín also pointed to research which said that NIPT tests were “increasingly accurate from 7 weeks’ gestation” and could therefore be used to secure a termination before 12 weeks. 

Regardless of their accuracy at this point in pregnancy, they are not available in Ireland through established healthcare facilities at this point during pregnancy.  

Verdict

The claim being checked states that: “Gender selection abortion is legal in Ireland and the law allow allows for the targeting of baby girls.”

Tóibín’s explanation for the first part of the claim is that there is no specific ban on “gender selection abortion” and that “by any normal understanding of the phrase” it must be considered legal. 

He and Aontú are correct to state that should a person seek a termination before 12 weeks of pregnancy after determining the gender of an unborn baby this would not be illegal. 

In that sense, it is true to say such an incidence of gender selection termination could be “legal in Ireland”. 

However, this claim also omits the crucial context of the likelihood or possibility of this taking place, and whether the law therefore “allows for the targeting” of unborn babies based on their gender. 

As outlined above, determining gender by ultrasound is not possible before 12 weeks. 

It is “theoretically” possible using NIPT tests, according to Prof. Malone, but the timelines are so tight as to make it “very difficult” on a practical level. 

Dr Flood’s opinion that 10 weeks is preferable to 9 weeks makes the timeline even tighter still. 

Tóibín’s reference to NIPT tests being accurate sooner during pregnancy cannot be discounted, but it is clear from speaking to practising obstetricians in Ireland that taking tests at 7 weeks is not something that is happening in Ireland. 

In fact, The Journal has established from a number of clinics that facilitate NIPT tests that, in the case of Harmony tests, they insist that the pregnancy is at least 10 weeks and 2 days along before they will consider providing the test. 

The Journal asked Dr. Flood whether she envisaged NIPT tests being taken earlier during pregnancy in the coming years. She responded that she did not see this happening: 

The technology is very good at the moment, so I can’t imagine anything any earlier than 10 weeks. I know there’s a lot of research into foetal DNA but 10 weeks is very early to be able to check chromosomal issues. So I can’t imagine that in the foreseeable future it is going to be any earlier than that to be honest.

For these reasons, despite it not being incorrect to say that gender selection could theoretically be a person’s reason to have a termination in Ireland, the fact there is no evidence of this taking place, in addition to the fact that it would be at best very difficult to do, it cannot be considered correct to say that the law does not provide any protection from it taking place. 

The timelines involved certainly do provide protection from the “targeting of baby girls”, as is outlined in the original claim. 

It is also pertinent to point out that the original claim was in response to research from 12 countries where the ratio of male births to female births was increasing. Ireland was not among these 12 countries. 

The research also named 17 countries ‘at risk’ of seeing an increase in the ratio of male births to female births. Again, Ireland was not among these 17 counties.  

For these reasons, we are rating this claim as MIXTURE, because there are elements of truth in the claim but also elements of falsehood.

The Journal’s FactCheck is a signatory to the International Fact-Checking Network’s Code of Principles. You can read it here. For information on how FactCheck works, what the verdicts mean, and how you can take part, check out our Reader’s Guide here. You can read about the team of editors and reporters who work on the factchecks here

Have you gotten a message on WhatsApp or Facebook or Twitter that you’re not sure about and want us to check it out? Message or mail us and we’ll look into debunking it. WhatsApp: 085 221 4696 or Email: answers@thejournal.ie

About the author:

Rónán Duffy

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