Judge Maureen Harding-Clark’s report on the much-criticised Symphysiotomy Payment Scheme was published two days ago. It is 275 pages long – 133 of commentary from the judge, 142 of extracts from medical literature and hospital records. Judge Harding-Clark was in an important position. She assessed applications from almost 600 women who believed that they had been subject to symphysiotomy. She oversaw searches of hospital records, and medical tests designed to verify their claims, and she allocated redress payments accordingly; 50,000 euro to those who could show they had had a symphysiotomy, 100,000 euro to those who could link that symphysiotomy to ongoing health consequences, and so on. Her report does more than describe the functioning of that role. It situates the scheme she oversaw in the context of an extensive defence of the uniquely Irish practice of non-emergency symphysiotomy. It is not the independent report survivors of symphysiotomy are entitled to under human rights law. The media have read it as diminishing SOS’s claim that the non-emergency substitution of symphysiotomy for Caesarean section without consent, as practiced in Ireland, violated many women’s human rights. However, this coverage has been insufficiently critical of this report. Here are just some of the report’s problematic features:
Lifelong Injury: The judge repeatedly stresses that she did not find that symphysiotomy ‘as a matter of near certainty created lifelong suffering’. ‘Near certainty’, is not, of course, the ordinary civil standard applied to causation in personal injuries. The report does not show that symphysiotomy was a benign operation. Over 35% of successful applicants to the scheme were able to demonstrate that they suffered significant disability which, on the balance of probabilities were caused by a symphysiotomy, and which had lasted more than three years. The judge emphasises that these were not the kinds of injuries (difficulty walking, incontinence) which were typically associated with symphysiotomy in the media; nevertheless, the disabilities listed in her report are distressing and significant. While the judge stresses that she was ‘generous’ in helping women ‘over the line’, all of these women were able to prove their injury either with original medical records (by no means easy to get after decades), or by medical examination conducted under the direction of the scheme. The remaining 65% were able to satisfy the judge that they had undergone symphysiotomy, and all of them will have suffered significant pain, and perhaps disabilities which lasted less than three years.
In any event, the judge’s focus on lifelong disability diminishes the experience of the operation itself. Indeed, it is striking that the report only discusses the performance of a symphysiotomy in the clinical language of scalpels and sinews. Women’s first person testimony of the operation, by contrast, emphasises fear, pain far beyond the normal expectations of labour, distress and powerlessness. Although the majority of the 55 applicants who had symphysiotomies before labour began did not suffer significant disability, all of them laboured through a damaged pubic joint. Prevalence of life-long injury is not the only measure of the harm done by symphysiotomy.
‘Unfounded Claims’ and Difficult Activists. Much has been made of the judge’s finding that 185 applicants to the scheme could not make out their claims. The report devotes a chapter to these women. It also spends considerable time on applicants who, whether or not they succeeded in proving symphysiotomy, could not satisfy the scheme that they had suffered significant disability Of course, we don’t as yet know who these women were or how they would describe their experience of the scheme. We should not forget that 399 women received awards, and that many women died before the scheme came into operation. That a large number of claims failed should not deter us from examining whether successful applicants have been properly treated, by the scheme or by the state. However, there are also serious shortcomings in how the report presents the issue of unsuccessful claims.
First, in some cases, the judge’s perception that claims were inaccurate affected the scheme’s procedure. For example, the judge finds evidence of a lack of candour by women, or of inaccurate diagnoses by doctors, in the recent medical reports of radiographers and GPs furnished to the scheme – and explains that this problem was so significant that it justified her insistence on preferring contemporaneous records of symptoms to more recent ones. To the same effect, the judge suggests that solicitors or campaigners assisted women to prepare statements to the scheme according to templates which made repeated use of similar ‘lurid’ or ‘harrowing’ motifs and adjusted women’s symptoms to fit media reports. She contrasts these applications with those which women prepared ‘personally’. However, while the judge provides anecdotes, she does not number the problematic complaints, rank them in terms of seriousness, or give a sense of how widespread these issues were.
Second, the language the judge uses to describe unsuccessful applicants is entirely inappropriate in a report of this kind. At worst they are chastised for buying into ‘conspiracy theories’, for ‘unreasonable’ reactions, for their anger and disappointment. At best, they are patronised as ‘suggestive personalities’ ‘amenable to … emotional contagion’ and subject to ‘acquired group memory’ developed through involvement in campaigning organisations; or elderly women sent into ‘turmoil’, not by their experience of symphysiotomy or by the government’s attitude to it, but by irresponsible ‘media reports’. The judge says:
it is very probable that the combination of a traumatic birth experience and exposure to other women’s stories has created a self convincing confabulation of personal history. Another inference is that the possibility of financial payment has influenced suggestible women and their family members into self- serving adoption and embracing of the experiences described by others or in the media and created psychosomatic conditions.
The tone and length of this discussion sits uneasily with the judge’s insistence that a ‘compassionate and generous’ approach was taken to assessing claims which suffered from these perceived flaws. Most disturbingly, the report alleges, without explanation, that several prominent campaigners for justice for women subjected to symphysiotomy ‘who have been active in representing themselves as victims to the media’, as well as several of the 28 women still pursuing personal injuries litigation in respect of their symphysiotomies, were found not to have undergone the operation at all. The most well-known campaigning organisation; SOS, denies that any of its prominent members were unsuccessful applicants to the scheme. The judge gives an impression of suspicion of campaigning organisations and their lawyers. This attitude is underscored by this section on women’s correspondence with the judge: happy women concerned with family rather than campaigning, who are spending money on ‘spoiling themselves’, rather than on the amelioration of pain and disability.
I was ultimately glad that most exaggerated accounts were ignored and compassion was applied to these women who perhaps were influenced by others to make the statements. This led to some of the more pleasurable moments as judicial assessor when I read the warm letters and notes from the women who wrote to me after they received their awards to tell me that they were certainly intent on spoiling themselves a little. Several very happy applicants rang to tell me how they were going to spend their money. One lady was buying a special hat. One applicant lifted my heart when she told me that she had never had any money in her savings account. Now she looked at her bank account every morning, for the sheer pleasure of seeing the amount of money in the account in her own name. One delightful applicant invited me to tea at her house and one wrote a poem of appreciation. Most women who wrote, told me that it gave them huge pleasure to be able to help their children or their grandchildren with their awards
The report’s approach undermines human rights campaigners, group organising, and social justice lawyering in one fell swoop, perhaps forgetting that without the work of these organisations the redress scheme – however flawed – would not have been set up at all, and many women would not have been able to access it.
Reproduction, Birth and Women’s Bodies. The pro-natalist tone of the report is striking. For example, the judge repeatedly explains that even though many applicants to the scheme complained of difficulty and pain in sexual intercourse for a year after the operation, most women who received awards under the scheme went on to have multiple further pregnancies; the first within 12-18 months of the symphysiotomy. Thus a young woman’s damaged sex life, leading to more babies, equates to a ‘good recovery’. Of course, this is less evidence of the acceptability of symphysiotomy than of the general unavailability of contraception in Ireland until the 1970’s. This analysis suggests that the healthy female body is one that holds up to repeated childbirth, whether that childbirth was chosen or not. This impression is solidified by later references to ‘voluntary infertility’; a medical term which works to pathologise women who managed not to have more babies. Indeed, the report strives to normalise a model of reproductive life rooted in women’s suffering. For example, it notes the difficulties in distinguishing between injuries caused by symphysiotomy (which may deserve redress), and the presumptively acceptable injuries caused by having a dozen children, difficult forceps births, or one or more protracted, exhausting labours (which never can). Later, the report patronises women who applied to the scheme and were found not to have undergone symphysiotomy, attributing their memories to ‘confabulation’. The judge suggests they mistook other traumatic birth experiences for symphysiotomy. Here the wrongfulness of symphysiotomy is clearly being assessed against a backdrop of normalised suffering and obstetric violence. Arguably these ‘mistaken’ applications demonstrate a deeper problem in the history of childbirth in Ireland, which the exceptionalisation and defence of symphysiotomy only serve to mask. Finally, the report mentions that some women who underwent symphysiotomy were ‘extremely grateful to have a lovely healthy baby’. This is one of several examples of places in the report where the judge fudges the elementary difference between symphysiotomy as a last-resort, emergency, life-saving procedure, and symphysiotomy as an elective procedure, substituted for C-section. A C-section might also have given the same women the same healthy baby.
Testimony – Direct quotation from women’s testimony only appears in the context of discussing and contradicting unsuccessful applicants’ submissions; representing their statements as part of a clumsily orchestrated attempt to mislead the scheme. A long list of fragments, for example, appears at pages 100-101 of the report. There is no detailed discussion of successful applicants’ testimony. By contrast, the report contains over 100 pages of direct quotation, often lengthy, from documents and statements made by doctors who performed symphysiotomies.
Religion: Like the High Court and Court of Appeal in Kearney and Farrell the judge finds that there were medical as well as religious justifications for the Irish practice of symphysiotomy. In one breath the report says that there was no evidence of ‘a religious as opposed to an obstetric reason’ for performing symphysiotomy, and explains that its development in Ireland was connected to a unique need to avoid potentially dangerous repeat C-sections in circumstances where contraception was not available and sterilisation was not performed. There is a stubborn refusal here to recognise that religion is as much a matter of structural power as individual religious belief. Religion was present in the development of symphysiotomy even where its proponents did not use religious language This was because contraception was not available and sterilisation was not performed because medical practice and the law of the land reflected religious mores. The report suggests that contraception ‘was not countenanced’ by women in a country where the majority ‘happily embraced’ Catholicism, so that symphysiotomy developed in response to women’s spiritual needs. This analysis, of course, forgets that women were not given the choice, as a matter of law, to control their fertility and that there is ample evidence that those women who could do so used contraception illegally, whether it sat easily with their consciences or not. The expectation that women should have repeated pregnancies, and should be willing to suffer for them, at the hands of expert men, was a matter of vernacular religion which cannot be reduced to happy preference. The Irish practice of non-emergency symphysiotomy was, therefore, a response to a particular set of state and religious structures which facilitated harmful medical practice. There was not the same reliance on symphysiotomy in the same types of case in any other country, precisely because that set of state and religious structures did not exist. And precisely because it existed in Ireland, certain Catholic doctors had an outlet to develop and legitimate that practice. As the Court of Appeal recently confirmed, non-emergency symphysiotomy was championed by only one school of obstetric thought in Ireland, and acceptance of practice varied from doctor and doctor and from hospital to hospital: it is doubtful whether it would have achieved any purchase without the driving engine of institutional Catholicism.
Human Rights Violations: The judge finds that symphysiotomy as practiced in Ireland was not ‘a deliberate act of torture’. She makes this finding (sweeping across hundreds of cases) on the basis that symphysiotomy was used to improve maternal outcomes rather than with ‘any intention to inflict pain’. Doctors ‘did their best‘. Like the Walsh report and the Farrell and Kearney cases, this report finds that the development of symphysiotomy in Ireland was, at certain times, within the (generous) bounds of documented acceptable medical practice, albeit some doctors strayed beyond those bounds in practice. For the judge, that is enough to show that important legal claims can be laid to rest. Here she shows a stunning narrowness of legal imagination. Contemporary human rights scholarship recognises that obstetric violence is a real and complex human rights issue. Even if a medical practice can be therapeutically justified in principle, we must consider how it is employed in the context of pregnancy and labour. In the case of symphysiotomy, consent is the crucial issue. It has not been possible to canvas consent in High Court cases, for procedural reasons relating to evidence and lapse of time. Neither does the redress scheme seek to address the issue of lack of consent. The Walsh report, although flawed, accepted that medical culture in Ireland at the time was such that women’s informed consent to obstetric procedures was not always sought. Judge Harding-Clark’s report directly contradicts this finding – she simply states that she does not believe that women were not told that a symphysiotomy would be performed on them. From a human rights perspective, this observation is useless.
In the forced sterilisation case of VC v. Slovakia the European Court of Human Rights held that the Article 3 prohibition against inhuman and degrading treatment can be violated where an accepted therapeutic practice is paternalistically imposed on a patient without adequate consent. It was irrelevant that the medical staff in that case did not act in bad faith, or with the intention of ill-treating the patient – it was enough that they disregarded her autonomy. And even had she not suffered physical pain, mental distress is sufficient to prove inhuman and degrading treatment. In view of the violation, the state was also obliged under Article 3, to carry out an effective investigation. The court further found a violation of the Article 8 right to private life, because of the impact of the surgery on the woman’s reproductive life. In the right case, where it is proven that doctors chose a particular medical practice for discriminatory reasons, they might also find a violation of the Article 14 right to freedom from discrimination. The standard of informed consent is higher than mere ‘knowledge’. Both VC and the CEDAW Committee in AS v. Hungary, stress, for example, that obtaining the patient’s signature is not enough. Consent must be voluntary and informed, and in non-emergency circumstances the patient must be given enough time to consider the treatment, weigh her options and refuse. Special care must be taken with patients who are vulnerable; such as women in labour. Protection of consent goes beyond simply being given the name of the procedure about to be performed on you, or having it explained after it has already been performed.
Conclusion. It is a mistake to think of the story of symphysiotomy as one about ‘bad doctors’. It is a story about bad systems of knowledge, and bad cultures, which corner women, induce compliance, deny their autonomy and thereby wound them. Those cases are extraordinarily difficult to litigate because the assumptions which drive the old system persist in judicial reasoning and are exacerbated by an adversarial framing. Outside the courtroom, we can find the same problems. What is striking about this report is that it uses constructs from those systems and cultures – valorising reproduction however painful, stoking a suspicion of women who claim their human rights, privileging medical literature over first person testimony – to silence protest. It deserves closer, and more critical reading and discussion.