The rights of the unborn: a troubling decision from the High Court?

Mairead Enright (@maireadenright)

Does the unborn have rights other than the right to life enshrined in the 8th Amendment?

It is clear that, under Irish law, foetuses cannot have any greater rights than children already born.[1] However, recent cases have raised the prospect that they have some of the same rights and interests as born children. In PP v. HSE,[2] for instance, the High Court referred to the ‘best interests’ of the foetus who has no prospect of survival outside the womb, analogising its position to that of a child on life support. It is not clear that the ‘unborn’ (the entity recognised or created by the 8th Amendment) is, for constitutional purposes, a child like any other. Recently, the courts have been asked to consider whether foetuses carried by Irish citizens have particular rights other than the right to life, which the state should take into account in assessing whether to deport their non-citizen fathers. Another, broader, way of putting this question is to ask whether the unborn’s rights derive exclusively from the 8th Amendment, or whether it may also enjoy rights grounded in other parts of the Constitution.

The position: foetuses may be treated as having constitutional rights other than the right to life.

In E[3] (the case of Kunle Eluhanla) Irvine J. applied an old common law maxim that the unborn should be treated as born in law where its interests require it. This meant that the Minister for Justice, in deciding whether to deport E’s father should have treated the then unborn  E as if he was born. In practice this meant that Michael McDowell as Minister for Justice should have taken into account E’s rights to the society and support of his parents, amongst many others. In taking this step Irvine J. paid particular attention to the fact that the Minister had been notified of E’s impending birth at the time he made his decision, but ultimately decided to make his order just 9 days before E was born. Irvine J. was struck by the injustice of allowing the Minister to take capricious advantage of the circumstances of pregnancy and childbirth, noting that if E had been born prematurely, the Minister would have had to take his existence and needs into account in making the decision.

She held that the unborn,in cases of this kind, can be treated as having all of the personal rights of the citizen under Article 40.3 of the Constitution.These rights were enumerated in G v. An Bord Uchtala[4] (a case about ‘illegitimate children’) and include the ‘right to bodily integrity, the right to be reared with due regard to religious, moral, intellectual, physical and social welfare, to be fed, to be educated, to work and to enjoy personal dignity… ’. As Irvine J. noted, these are the “natural and imprescriptible rights of all children”, now recognised in Article 42A of the Constitution.

The Ugbelese position: the rights of the foetus are confined to those conferred by the 8th Amendment.

In the later case of Ugbelese,[5] by contrast, Cooke J. took the position that the unborn does not have any rights other than the right to life.[6] Cooke J. argued that Irvine J. over-extended the common law maxim mentioned above, which he argued had previously only been used in a backward-looking way, to allow financial recovery for injuries suffered in the womb, and not to allow assertion of future rights before birth.

In any event, he argued that her decision was inconsistent with the Constitution. For Cooke J. the purpose and effect of the 8th Amendment is to definitively set out all of the rights of the unborn .Indeed, whereas Irvine J. derives the unborn’s rights to family life from Article 40.3, Cooke J. notes that the 8th Amendment is a specific amendment to that Article, indicating that the unborn is not intended to enjoy those personal rights as born citizens do. Before 1983, he argued, there had been some limited judicial discussion of the rights of the unborn (McGeeFinn v. AG and G v. An Bord Uchtala), but these were not definitive: the Amendment was intended to clear up this uncertainty. The Amendment does not give any rights to the unborn other the right to life (which for Cooke J. also  implies the right to bodily integrity; the right to protection from any wilful interference with the natural course of gestation.)   Any additional rights of the child are prospective and inchoate until birth, when they can be exercised in society and community as an independent person.

So, after Ugbelese, the High Court had taken two distinct stances on this question. Recently, Humphreys J. decided between them.

Humphreys J. chooses the position: the IRM case.

In IRM v. MJELR,[7] Humphreys J. was asked to determine whether the State in deciding whether to deport the father of unborn child of an Irish citizen is obliged to consider the unborn’s future rights to family life as well as its the right to life enjoyed under the 8th Amendment.

Humphreys J prefers the reasoning of Irvine J. in E, and holds that in deportation cases, the state must consider the family rights that the unborn will enjoy in the future. He rejects the Cooke argument in Ugbelese (above) that the 8th Amendment was intended to completely embody all of the unborn’s rights. His judgment criticises Cooke J. at length for his excessively ‘literal’ reading of the 8th Amendment,[8] which Humphreys J. contends is incompatible with the principle that the constitution is to be read as a whole.[9] In addition, whereas Cooke J. presents the 8th Amendment as resolving a problem of uncertainty about the status of the unborn in Irish law pre-1983, Humphreys J. argues that the obiter statements about foetal life in McGeeFinn v. AG and G v. An Bord Uchtala clearly indicate that the rights of the unborn pre-dated the Amendment, and were simply confirmed or supplemented by the Amendment.

Humphreys J. goes on to specify the following rights of the unborn:

  • Humphreys J. agrees with Irvine J. that the unborn may be treated as having a right to family life. Irvine J. derived this from the personal rights provisions of the Constitution in Article 40.3. Since her judgment was delivered, the people have added a new provision to the Constitution and Humphreys J. relies on it here. He holds that Article 42A (the Children’s Rights Amendment) by its specific reference to “all children” is intended to protect unborn as well as born children. To bolster this interpretation, he cites several examples of laws which use the phrase ‘unborn child’, and emphasises that ‘expectant parents’ recognise the unborn as a child.[11] He criticises the state’s arguments to the contrary for excessive literalism.[12] Humphreys J. recognises that the unborn will not enjoy all of the rights contemplated under Article 42A, insofar as it cannot effectively exercise them. But this in itself does not unseat the argument that the unborn is a child for constitutional purposes. In this respect, he analogises the unborn to the profoundly disabled born child.[13]  
  • He also argues (probably obiter) that the unborn has the right to health, and not merely the right to bodily integrity as a corollary of the right to life.[10] The difference between Cooke J. above and Humphreys J. here is a matter of degree, but Humphreys J. argues that the foetus has a right to be protected from injury to health as well as from the health/bodily integrity consequences of exposure to a risk to life. This principle, if extended to an appropriate case, could have an impact on women’s decision-making in pregnancy outside of the abortion context. See further here.
  • In support of his extension of the rights of the unborn beyond the right to life, he notes that the unborn is already recognised as having a number of statutory and common law rights additional to the right to life, including:
    • The right to litigate.
    • The right to succeed to property.
    • The right to sue in tort, once born, for injuries sustained in the womb.
    • The right to health and welfare, which implicitly grounds the Child and Family Agency’s practice in child protection cases where there are concerns around a pregnant woman’s capacity to care for her child once born.
    • The right of a stillborn child to recognition of his/her identity.
    • At an international level, Humphreys J. cites paragraph 9 of the UNCRC as establishing the unborn’s right to special protection and care before birth. Notably, he does not discuss the European Convention on Human Rights, which does not recognise rights of the unborn.

Humphreys J’s judgment reflects an obvious frustration with a state which wishes, in his view to have its cake and eat it – holding the unborn as sacrosanct but not affording it any rights which would inconvenience the state. However, in respect of family life, this is not a judgment about the constitutional rights which the foetus automatically enjoys in the womb. Humphreys J. did not have to resort to the legal fiction used in E because IRM was framed as a test case on the very question of the extent of the rights of the unborn in deportation cases. However, his judgment, like Irvine’s judgment in E is designed to compel the state to have regard to ‘the prospective situation which is likely to unfold, and particularly such rights arising from a child’s status as a citizen as are likely to exist, rather than the state of affairs as it exists as a snapshot on the date which the Minister’s decision is made in isolation from matters which are imminently prospective as a matter of likelihood’.[14] He argues that under the old decision in East Donegal Co-Operative v. AG the state is required to guard against prospective threats to constitutional rights.

What does this mean for campaigns for liberalisation of Irish abortion law?

Some of the language employed in Humphreys J’s judgment is worryingly reminiscent of pro-life literature. At various points he refers to the state as ‘sneering’ at the rights of the unborn; notes that all adults were ‘unborn’ once, and argues that the unborn must be a child in principle because happy expectant parents think of their pregnancies in this way.The troubling analogy drawn between foetuses and profoundly disabled born children noted above also calls to mind anti-abortion campaigners’ appropriation of disabled people’s experience. Ultimately, his failure to consider, even in passing, the wider repercussions for women of his approach to the unborn is cause for concern. However, even if his judgment is good law (and a Supreme Court which takes a more restrained approach to constitutional interpretation is unlikely to think so), it is of limited relevance to the campaign for repeal of the 8th Amendment.

  1. These cases are not decisions about foetuses. They are decisions about Irish citizen children who were already born when the judges heard their cases. The judgments consider deportation decisions made in respect of their fathers before their births.
  2. These cases are not about the rights which foetuses have before they are born. As discussed above, they are clearly cases about the state’s duty to consider their future post-birth rights when considering deportation of their fathers.
  3. These decisions are products of a laudable judicial effort to preserve limited space for parent-child relationships within an unjust immigration system which has for a long time demonised migrant family-making. They cannot sensibly be extended beyond that context.
  4. The constitutional problem at stake here is very different from that which arises when a woman needs an abortion. Humphreys J. and Irvine J. have attempted to acknowledge rights of the unborn which are, in the immigration context, entirely congruent with the rights of the prospective parents. (Similarly, the examples of additional common law or statutory rights of the unborn listed by Humphreys J. directly advance the interests of born persons connected to the unborn, and either do not conflict with the rights of the pregnant woman, or are carefully balanced against those rights.) In addition, the right recognised in these cases need only be ‘considered by the state’. The rights of the unborn cannot absolutely restrict the state’s entitlement to deport its parent: the burden on the state here is very light. By contrast, in constitutional terms, abortion involves a direct and serious conflict between the rights of the unborn and the rights of the pregnant woman. These cases do not tell us anything in principle about how such conflicts should be resolved.
  5. It is especially difficult to imagine how Article 42A might be applied to abortion after repeal of the 8th. Courts are generally careful to confine the application of constitutional provisions to the areas of social life which they were intended to regulate, particularly where morally controversial activities are concerned.[15] The campaign to add Article 42A to the Constitution focused on establishing children as rights-holders independent of their parents. It did not centre on abortion and so it is reasonably clear that the people in voting on Article 42A did not intend it to apply to this context.
  6. If the unborn enjoys additional personal rights, they are not absolute rights. Outside of the direct abortion context, the courts have repeatedly stated that in interpreting the unborn child’s rights (including in deciding how and when the unborn child’s right to life applies) the courts must bear the countervailing rights of the mother – particularly her rights to bodily integrity and privacy – in mind.[16]
  7. There is an argument that, even if the 8th Amendment were repealed, these additional rights of the unborn and the right to life of the unborn could nevertheless survive within the Constitution. For example, post-repeal, we might see the Supreme Court affirm the existence of those rights in an Article 26 reference or in a constitutional challenge to future abortion legislation. A similar argument has already been made in respect of judgments like McGeeFinn v. AG, Norris and G v. An Bord Uchtala (see the disagreement between Cooke J and Humphreys J. above). Even if this argument holds some weight (and the weight it holds would depend on the preferences and makeup of the Supreme Court at the time) it is unlikely that it would cause  future post-8th abortion legislation to be struck down as unconstitutional. The Constitution is a living document which is to be interpreted in light of prevailing ideas and concepts (McGee v. AG). Successful repeal of the 8th Amendment, particularly in the context of a campaign which has and will emphasise the rights and experience of women, would send a strong signal to the Supreme Court that the Constitution was longer to be interpreted as it is under the X case. A future Supreme Court, considering post-repeal abortion legislation, is likely to be concerned with a balancing of the rights of foetus and pregnant woman, rather than with the application of a near-absolute foetal right to life. Amendment or replacement of the 8th, to provide an explicit constitutional right to abortion could, of course, help to restrain the judiciary in this area.
  8. Any argument that these judgments are an uncomplicated victory for human rights depends on ignoring serious questions of race and gender inequality. For instance, it appears that the rights recognised in E and IRM only apply to the unborn children of Irish citizens – this is the legacy of the citizenship referendum. The Supreme Court had already established that the right to life of the unborn child of non-citizens cannot pose an obstacle to its mother’s deportation.[17] In addition IRM recognises the rights of the unborn while dismissing the argument advanced on behalf of the pregnant woman that her mental health might require her partner’s deportation to be stalled so that he could be present to support her at the birth of her child.[18] A woman will also need to prove something approaching risk to life, or inhuman and degrading treatment related to the deportation before her pregnancy can operate to stall her own deportation.[20]  

Footnotes:

[1] Baby O [2002] 2 IR 169

[2] [2014] IEHC 622. See further http://humanrights.ie/gender-sexuality-and-the-law/pp-v-hse-futility-dignity-and-the-best-interests-of-the-unborn-child/

[3] [2008] IEHC 68

[4] [1980] IR 32, 69

[5] Ugbelese [2009] IEHC 598. was preferred by Hogan J. in A v MJELR [2001] IEHC 397. E was cited approvingly by MacEochaidh J in FO v. Minister for Justice [2013] IEHC 236 and again in Dos Santos v. Minister for Justice [2013] IEHC 237, appearing to equate the rights of the unborn child in the context of deportation with the rights of children generally.

[6] Cooke J. also argues that he is not bound by the judgment in E because Irvine J. did not intend her judgment to be determinative of the constitutional issue of the rights of the unborn.

[7] 29 July 2016

[8] p.31

[9] p. 21

[10] p. 22

[11] p.29

[12] p.30

[13] p.30

[14] p.33

[15] See e.g. Baby O [2002] 2 IR 169 and Roche v. Roche [2009] IESC 82

[16] Baby O [2002] 2 IR 169 (right to bodily integrity); Ugbelese [2009] IEHC 598 (right to travel and privacy); PP v HSE [2014] IEHC 622 (right to dignity in death)

[17] Baby O [2002] 2 IR 169. See further Ruth Fletcher here.

[18] p. 19.

[19] p. 38

[20] Aslam v. MJELR [2011] IEHC 12

The rights of the unborn: a troubling decision from the High Court?

Amanda Jane Mellet v. Ireland – The Key Points

As readers will know by now, the UN Human Rights Committee today held that Ireland’s abortion law violated Amanda Mellet’s human rights under the ICCPR. The foetus she was carrying was diagnosed with a fatal foetal abnormality. Irish law criminalises abortion except as a last resort to save the pregnant woman’s life, and  thus compelled her to travel to Liverpool for an abortion. This is the first time that any international court or human rights body has found that the criminalisation of abortion is in itself a violation of women’s human rights. The Committee held that the Irish law:

  • Violated her right to freedom from inhuman and degrading treatment because it exacerbated the anguish associated with a pregnancy affected by fatal foetal abnormality. By compelling her to travel, the law deprived her of material and emotional support and appropriate care during and after her abortion. Criminalisation, in particular, compounded the shame and stigma associated with abortion in Ireland. The chilling effects of the Abortion Information Act, which meant that she could not obtain adequate information about terminating the pregnancy abroad,  were a source of further distress during the decision-making process. The process of travel also disrupted her recovery and worsened the grieving process: the Committee focused on her experience of receiving the foetus’ remains by courier, after she had returned to Ireland. The Committee here is providing us with resources to upset that prevailing public discourse which suggests that a pregnancy affected by fatal foetal abnormality is a tragedy; a trial which good mothers must bear with serene nobility. Committee Member Sarah Cleveland described this as “a stereotypical idea that a pregnant woman should let nature run its course, regardless of the suffering involved for her.” The Committee says that, even though the state did not directly inflict harm on Amanda Mellet, its neglect and abandonment of women in this situation  – who are left “isolated and defenceless” – moves situations like hers out of the realm of guiltless tragedy, and into that of state responsibility.
  • Violated her rights to privacy and bodily integrity. The Committee held that the Irish abortion law amounted to an unjustifiable interference with Amanda Mellet’s decision-making around her pregnancy. The State had argued, following the Irish constitutional test, that the interference was proportionate to its aim of balancing the rights of the pregnant woman against those of the foetus. The legality of the interference under domestic law is not important in this context. In addition, the Committee notes that because the law violates the right to be free from inhuman and degrading treatment, the restrictions it places on the right to privacy and bodily integrity could not be considered compatible with international law. Irish law, in its zeal to protect the foetus, has gone too far. In particular, the Committee emphasises that the treatment of Amanda Mellet under law was especially unreasonable because her pregnancy was not viable. Sarah Cleveland wrote: “Requiring the author to carry a fatally impaired pregnancy to term only underscores the extent to which the State party has prioritized (whether intentionally or unintentionally) the reproductive role of women as mothers, and exposes its claimed justification in this context as a reductio ad absurdum.”
  • Violated her right to freedom from discrimination. Amanda Mellet pointed out that women who choose to continue their pregnancies after a diagnosis of fatal foetal abnormality, and deliver a stillborn baby in Ireland receive state-funded care, while those who choose to travel for termination must bear the expense of doing so by themselves. Similarly-situated women are treated differently, with real financial and medical consequences. The Committee accepted that this difference in treatment amounted to discrimination in two ways.
    • First, the law discriminates against women as women. The State had made the facile argument that gender discrimination is confined to circumstances where men and women are similarly situated but men are better treated: by definition, they maintained, it cannot occur in respect of pregnancy because only women can become pregnant. Sarah Cleveland emphasises that the criminalisation of abortion is gender discrimination, because it affects a health service that only women need, and places no equivalent burden on men. In addition, the Committee reminds the state that gender stereotyping of women is in itself a form of gender discrimination.  In this respect, an interesting point from a feminist perspective is the Committee’s observation that the difference in treatment between those women who carry to term, and those who terminate the pregnancy is rooted in stereotypes of women as ‘reproductive instruments’. This point has been canvassed in Irish feminist scholarship for decades. Yad Ben Achour elaborated: “The prohibition of abortion in Ireland, owing to its binding effect, which is indirectly punitive and stigmatizing, targets women because they are women and puts them in a specific situation of vulnerability, which is discriminatory in relation to men. Under this legislation, the author has in effect been the victim of the sexist stereotype, whereby women’s pregnancy must, except where the life of the mother is at risk, continue, irrespective of the circumstances, as they are limited exclusively to their reproductive role as mothers. Reducing the author to a reproductive instrument constitutes discrimination and infringes her rights both to self-determination and to gender equality.”
    • Second the law failed to take into account the socio-economic effects of this differential treatment; in particular the costs of travel and seeking treatment abroad. Several Committee members maintained that the discrimination was not only between women who carried their pregnancies to term and those who travelled, but between those who could more easily afford to travel abroad for abortions and those who like Amanda Mellet, struggled to pay for the travel and the procedure. Sarah Cleveland noted that Article 26 ICCPR “prohibits the unequal access to reproductive health care for low-income and vulnerable populations that results from Ireland’s legal restrictions on reproductive health services.”
  • Violated her right to seek and receive information. Three Committee members held that the Abortion Information Act encourages medical personnel to withhold clear and timely information that women like Amanda Mellet could use to make decisions about their pregnancy and health, and that this in itself is a violation of rights under the ICCPR.

The Committee’s emphasis  on the woman’s entitlement to expect a certain level of compassion, care and attention from the state is very welcome. Amanda Mellet, Termination for Medical Reasons Ireland, their legal advisors and the Center for Reproductive Rights must be commended for their work in bringing this case to the Committee.The government is required to respond to the Committee’s decision within 180 days, outlining the concrete steps which it will take to remedy the identified human rights abuses, and to prevent future similar harm to other women. The ruling will contribute significantly to the existing moral pressure on the government to hold a referendum on the Eighth Amendment (see further discussion by Fiona de Londras here). The Health Minister, Simon Harris, has indicated that he wants to see law reform in this area. However, the government of which he is a member has continued to drag its heels on the issue of abortion law reform.

This post is by Mairead Enright of Kent Law School – m.enright@kent.ac.uk

Amanda Jane Mellet v. Ireland – The Key Points

Human Rights Day 2015: A day of celebration or depression?

We are pleased to welcome this guest post from Thamil Ananthavinayagan, a PhD researcher at the Irish Centre for Human Rights, Galway

“(…) Iuris consultus factus causam

suorum ita dixit ut accusator fieret ipse dominorum (…)“

– Anthony Bowen, in his oration on the occasion of the conferring of honorary doctarate to Nelson Mandela at the University of Cambridge

 

Introduction

On the 10th of December 1948 the United Nations (hereafter: UN) General Assembly adopted the Universal Declaration of Human Rights (hereafter: UDHR), the first codified document setting out the universal principles of human rights and the foundational document for the United Nations human rights system. It is the birthday of human rights.

Two years later, in 1950, the United Nations General Assembly declared this December 10th as Human Rights Day, while the world was still recovering from years of war that devastated the landscapes of our cities and our souls. The UN put forth this declaration that recognized the ramifications of human suffering and injustice, and called for December 10th to be a day to celebrate the inherent rights of every person, everywhere. While the UDHR is a non-binding document, its adoption marked the advent of human rights treaties to follow, launching human rights dialogue and sustained efforts to implement human rights worldwide. It was, is and will be a document for: progress.

  Continue reading “Human Rights Day 2015: A day of celebration or depression?”

Human Rights Day 2015: A day of celebration or depression?

The Direct Provision Report: A Missed Opportunity

DP ReportYou can find my preliminary analysis, including a full summary of the core recommendations from the McMahon Report on the Protection Process and Direct Provision System here. 

You can access the McMahon Report here.

From an initial reading and examination of this report, in my view, this is a report of two halves. One half of the report (Chapter 3 in particular) on the protection process and recommendations on the five-year grant of a form of residency status are clear and coherent. Clear recommendations are made as regards status determination and a substantial analysis of the rights of the child (along with other areas). That is not to say that the narrative of the McMahon Report in Chapter 3 is not without its issues (but I will leave this for another day). Throughout Chapter 4 and Chapter 5, highly qualified language and significant caveats infects the totality of recommendations on direct provision accommodation and ancillary supports.

Human Rights Obligations and Direct Provision Accommodation and Supports

From my initial reading of the report, there appears to be two unequivocal recommendations that may impact on those currently in direct provision, who are not resident in the centres for five years: an increase in direct provision allowance and the provision of a locker for each individual adult in direct provision accommodation centres. All other recommendations are subject to significant caveats as regards contractual obligations and implementation restricted in so far as reasonably practicable. For over 15 years, report after report has emphasised the significant violations of human rights that occur on a daily basis for those subject to direct provision accommodation and supports. The McMahon Report, while recommending an increase in direct provision allowance, does not recommend the payment of child benefit to those seeking protection in Ireland.

In my preliminary analysis (available here, pp. 19-26), I argue that the Working Group should have taken into account Ireland’s international obligations, in particular the UN Convention on the Rights of the Child. By not doing so, the McMahon Report entrenches the notion that asylum and protection seekers are less than human, deserving of only the most highly qualified rights in highly institutionalised settings.

Embedding Institutional Living in Direct Provision (see further, pp. 26-31, here)

The recommendations on living conditions and ancillary supports leave much to be desired. The solution to greater protection of protection seekers lies in neither in law nor in strategic litigation. While these are important in achieving broader aims and seeking to use law to promote human rights; only a fundamental re-evaluation of society’s approach to protection seekers in Ireland will result in the recognition of, what Arendt terms, “the right to have rights.” To date law and administration, and now the McMahon Report, will be used to justify exclusion, separation and distancing of protection seekers from Irish society and placing people in the direct provision system. Until there is more fundamental societal introspection, on “the rights of others”, institutionalised and impoverished living for protection seekers will continue. The significant controls over living conditions, eating arrangements’, near total supervision of the parental role, are relatively unchallenged by the McMahon Report. While there are some soft recommendations “in so far as practicable, and subject to any contractual obligations” as regards family living quarters, allocation of rooms to single applicants, possibility for individual or communal cooking, no other societal group has such enforced supervision of intimate aspects of daily lives. Public support for political action in limiting social rights of protection seekers have seen the most restrictive and punitive forms of control utilised within social welfare provision in the modern era.

The Direct Provision Report: A Missed Opportunity

The EU and the 25th anniversary of the UN Migrant Workers Convention

IJELWe are delighted to welcome this guest blog by Alan Desmond. This blog first appeared on www.crimmigration.com.

As we approach the 25th anniversary of the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), Migrants Matter, a group of postgraduate students and young professionals concerned with the treatment of migrants in Europe, is calling on Dimitris Avramopoulos, the EU Commissioner for Migration, Home Affairs and Citizenship, to support ratification of the ICMW by EU Member States.

Adopted by the UN General Assembly on 18 December 1990, the ICMW is one of the ten core international human rights instruments. It is similar to some of the other core human rights treaties like the Convention on the Rights of the Child (CRC) in that it takes the rights set out in the two treaties of general application, the ICCPR and the ICESCR, and codifies and elaborates on them in relation to a particularly vulnerable category of persons, in this case migrant workers and members of their families. What distinguishes the ICMW from the other core instruments is that it is the only one of the ten which has not yet been signed or ratified by any of the 28 EU Member States. Continue reading “The EU and the 25th anniversary of the UN Migrant Workers Convention”

The EU and the 25th anniversary of the UN Migrant Workers Convention

Ashers Bakery Loses "Gay Cake" Discrimination Case

gay_cake_reuters-640x480In the spring of 2014 efforts to enact same-sex marriage legislation in the Northern Ireland Assembly suffered another setback. Undeterred, QueerSpace, a support group for the LGBT community in Northern Ireland, celebrated its 16th anniversary with an event pushing for reform of the law. Gareth Lee, a volunteer at QueerSpace, ordered a cake for the party bearing the slogan “Support Gay Marriage” from Ashers Bakery. When his order was subsequently rejected and his money returned on the basis that the message offended against the religious beliefs of the bakery owners, the McArthur family, these seemingly innocuous facts exploded into the “Gay Cake” case which has gripped public debate in Northern Ireland for the last year. Continue reading “Ashers Bakery Loses "Gay Cake" Discrimination Case”

Ashers Bakery Loses "Gay Cake" Discrimination Case

Marriage equality: The end of the world as we know it?

We are pleased to welcome this guest post from Professor Donncha O’Connell, Head of the School of Law at NUI Galway.

Voting no to marriage equality will have as much effect on surrogacy and other forms of assisted human reproduction as voting no to divorce had on rates of marriage breakdown and voting yes to an abortion ban had on the numbers of abortions obtained by Irish women in the UK. Opponents of progressive social change seem to have scant regard for effectiveness in relation to the things that they oppose and, in this country, they have form. Continue reading “Marriage equality: The end of the world as we know it?”

Marriage equality: The end of the world as we know it?

Childbirth, Choice and the Courts: The 8th Amendment and More.

Article 40.3.3 of the Constitution reads: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’  We typically think of this as an Article designed to prohibit abortion, while forgetting that the text of the provision is not  so limited. In Roche v. Roche the judges of the Supreme Court came to differing views about its application outside the abortion context. There are two approaches. We may focus on the language, which is sufficiently broad to regulate all pregnancies, and not only those which it is immediately sought to terminate by abortion (see the judgment of Murray CJ). Alternatively, we remember that there are specific reasons why this provision is in the Constitution in the first place – that it was sought to copper-fasten the existing statutory prohibition on abortion –  and do not permit it to regulate all pregnancies (see the judgments of Denham J, Geoghegan J, and also the decisions in AG v. X and Baby O, cited by Hardiman J. in his Roche judgment).  I think the latter is the better reading of the authorities, but the more expansive reading has tremendous force. For example in P.P. v. HSE, the Amendment was invoked by the High Court in a case in which it was sought to withdraw somatic care from a brain-dead pregnant woman. We know, also, from the June 2013 report into the case of Savita Halappanavar (and from the testimony of other women in the wake of that case) that the Amendment was considered binding in day-to-day practice in the management of inevitable miscarriage.

It is still not clear what the legal consequences of the more expansive reading have been for Irish maternity care, particularly in cases where there is disagreement between a woman and her doctors as to how her pregnancy should be managed. The National Consent Policy says:

The consent of a pregnant woman is required for all health and social care interventions.   However, because of the constitutional provisions on the right to life of the “unborn”, there is significant legal uncertainty regarding the extent of a pregnant woman’s right to refuse treatment in circumstances in which the refusal would put the life of a viable foetus at serious risk. In such circumstances, legal advice should be sought as to whether an application to the High Court is necessary.

There has been very little guidance from the courts. I would instinctively argue that no 8th Amendment issue should arise in cases where a competent woman wishes to make a healthcare decision which her doctors feel is unwise, but which does not place the foetus’ life at risk. We tend to forget that the unborn has only one right – the right to be born alive. In Baby O, the Supreme Court rejected the notion that the right to life of the unborn encompassed a right to be born safely, or a right of access to medical treatment to ensure the child, once born survives infancy. Nevertheless, where the risk to the foetus is a risk to its future health, for example, it is unclear whether a woman’s decision could be overridden. There is conflicting unreported High Court authority on this point, in cases of HIV positive pregnant women, as reported by Katherine Wade in this earlier blog-post.

It is certainly true that a barrister acting on behalf of the HSE in seeking to compel a woman to submit to unwanted medical treatment will find it easier to make their case if they can suggest that the woman’s preferred course of treatment places the foetus’ life at risk. In getting to that point, cases are likely to turn on expert evidence. The level of risk required to invoke the right to life of the unborn may be quite low – for example in the 2010 case of Mother A, the relevant risk was of occurrence of uterine rupture during vaginal birth after C-section.  The risk of death of the foetus due to uterine rupture in such births is generally accepted to be small, and could not be analogised to the certainty of death involved in an abortion, for example.

We do not have any direct reported judgments in cases where the court has been satisfied that the foetus’ life was placed at risk by a pregnant woman’s medical decision. However, we can guess at how they are decided. Following PP v. HSE, it can be said that the unborn has the right to all practicable medical intervention – even deeply invasive intervention –  necessary to facilitate its being born alive. ‘Practicable’ here means treatment which is neither futile nor contrary to the ‘best interests’ of the unborn – treatment which is not at the outer reaches of medical best practice. It is difficult to say what points a pregnant woman could advance to argue that she should not be subjected to deeply invasive treatment to secure the right to life of the unborn, or that she should be allowed to choose less damaging treatment which poses a greater risk to the foetus’ life. The best evidence that we have of the kinds of arguments which might be made comes from newspaper reports in the Mother A  case. A dispute arose between a pregnant woman and Waterford Regional Hospital when she refused to consent to a C-section, preferring a natural birth. The hospital argued that the woman’s pregnancy was so far along that her refusal was jeopardising the life of the unborn.The High Court had been asked to grant an order compelling the C-section, but the woman relented. In argument, Eileen Barrington SC for the hospital had argued that the relevant ‘clash of rights’ was between the woman’s right to refuse treatment and the right to life of the unborn. Assuming this case  has not been misreported, the argument suggests that the woman has constitutional rights which must be taken into account in ‘maternal-foetal conflict’ cases, even if her own life is not placed at risk by the pregnancy. We can guess that a similar set of arguments was advanced in Ms. Y’s case in the High Court, when it was sought to subject her to an unwanted C-section (apparently one of the permissible modes of responding to a woman’s request for termination of a pregnancy under the PLDPA). It might be that the ‘Mother A’ argument is heartening because it may leave room to discuss and elaborate upon others of women’s rights than the basic right to life, but it is difficult to build on this observation without further information. ( P.P. v. HSE  is of very little use on this point because, at the time the decision was made, P was already brain dead and, in the court’s view, had no remaining interests except in respect of  ‘the feelings of grief and respect’ which others associated with her body.)

If the 8th Amendment were repealed tomorrow, what effect would it have on the maternity care system? Not every case in which a woman’s preferences are overridden by the HSE is strictly an 8th case, or a maternal-foetal conflict case. We often talk about the ‘chilling effects’ which the 8th has on women’s access to abortion – doctors imagine some inchoate risk of prosecution and so do not provide legally mandated abortion services. We could argue that there is a parallel ‘chilling effect’ in terms of women’s choices around childbirth – HSE personnel imagine a constitutional duty to restrain meaningful forms of maternal choice, lest the foetus be placed at even the smallest risk. This imagined constitutional duty is, of course, a product of vernacular and not direct judicial interpretation. But even if the 8th were removed, some worrying structures would remain in Irish healthcare law, which may owe some of their origins to the 8th but are supported by other independent rationales. I will outline them briefly.

The first concerns the regulation of home births, challenged in Teehan v. HSE.  There are two main sites of regulation; a Memorandum of Understanding, or contract, between self-employed midwives and the HSE, and the Nurses and Midwives Act. The Memorandum provides that the HSE will not provide indemnity cover midwives who attend a home birth where the woman has previously had a C-section. The indemnity is a key site of control of independent midwives and women who prefer home birth, as the recent Philomena Canning case demonstrates. The Act provides in s.40 (not yet implemented) that a midwife who provides any service without insurance shall be subject to criminal penalties. In Teehan, O’Malley J. held that the HSE has extremely wide discretion in determining which maternity services to provide; as the party accepting the risk, it was for the HSE to decide which risks to insure. This is an interesting decision because O’Malley J. privileges institutional needs over individual choice without very much analysis. She dismisses the invocation of Article 8 ECHR via Ternovskycharacterising it as a decision about legal uncertainty, rather than as a more expansive decision about the mother’s entitlement to ‘a legal and institutional environment that enables her choice, except where other rights render necessary the restriction thereof. For the Court, the right to choice in matters of child delivery includes the legal certainty that the choice is lawful and not subject to sanctions, directly or indirectly’. She made no comment on s.40 of the Act because it was not yet in force – though arguably this is the kind of sanction which at least falls to be justified under Ternovsky.

The second is apparent in the negligence action in  Hamilton v. HSE.  In this case, Ms. Hamilton argued that a midwife had negligently broken her waters,  leading to a very traumatic birth by emergency C-section, with long-lasting psychological consequences.  The case, like all negligence cases, turns on judicial assessment of conflicting expert evidence. The court’s function is ‘merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant’, and not to determine whether best practice was followed. In part, that was why Ms. Hamilton’s action failed. However, there is an interesting section in which Ryan J. responds to the plaintiff’s contention that the midwife broke her waters without first seeking consent; whether Ms. Hamilton was assaulted. Paragraph 16 is instructive:

Mr Buckley challenged the plaintiff’s evidence that she was not told or warned about the ARM and that the midwife had simply carried out the procedure without preamble. Midwife Kelliher gave evidence that she had discussed the procedure with the plaintiff, she had with her the amnihook and had to get the plaintiff’s co-operation as to the position she was in for the procedure to be carried out. Mrs Hamilton would have seen the hook and would have known what was going to happen because of the sheet that was put under her in bed. Since, on the evidence, this was a routine procedure that Ms Kelliher was carrying out for the purpose of diagnosis to see if her fear of foetal distress was justified or not, it does seem strange that she would not have mentioned to the patient what she was going to do and have obtained her consent. The very fact that it was so routine suggests that the midwife would have done so. I am satisfied that the probability is that Midwife Kelliher obtained the plaintiff’s consent and informed her about the ARM that she was going to perform.

Given Ireland’s recent history of maternal deaths, there would be something to be said for forensic judicial attention to the extent to which labouring women’s voices are heard in maternity hospitals. AIMS’ recent research found that ‘while 67% of women [surveyed] agreed that basic consent had been sought during labour and birth, 52% of those surveyed did not receive information on potential implications to have or not have tests, procedures, treatments to assist with their decisions, and only 50% felt able to make an informed refusal during their labour and baby’s birth’. Consent requirements are an essential protection for women’s autonomy and must be taken seriously.

Both of these cases speak to a subordination of women’s autonomy to other concerns. The demands of insurance, and a reluctance to take the requirements of consent seriously, may provide a shield for defensive (some might say aggressive) maternal medicine long after the ‘de-constitutionalisation’ of pregnancy.

For further information see the Association for Improvements in Maternity Services (AIMS).

Childbirth, Choice and the Courts: The 8th Amendment and More.

Guest Post: 20 years after Beijing: let’s take a few steps back.

We are pleased to welcome this guest post from Leonard Taylor, who is a PhD candidate at the Irish Centre for Human Rights, NUI Galway. His research topic is on Catholicism and human rights.  You can contact him l.taylor3[at]nuigalway.ie 

This post is in response to Aoife O’Donoghue’s article [20 Years after Beijing: Taking a few steps back? Mar 11, 2015].

The number of people identifying as Catholic leaped from an estimated 291 million in 1910 to nearly 1.1 billion as of 2010 [link]. The Catholic Church sees itself as a necessary actor in the political sphere [Gaudium et Spes § 76]. Certainly, interest in the activity of Catholicism as a global actor has peaked in part response to a time we identify with a resurgence of religion. Understanding some of the history of women in Catholicism that goes beyond the basic binary opposition is important particularly where there is a view of the Holy See (and Catholic Church) as, as Aoife O’Donoghue remark in her recent post, ‘a powerful voice against women’s substantive equality when it is completely dominated by one sex and one view of the role of women should be a serious issue for the UN’. It would appear to highlight and identify the Holy See as problematic or creating rollback for women’s rights with singular responsibility for the watering down of the UN Commission on the Status of Women Declaration but this tends to blur the broader picture of the relationship between women’s rights and Catholicism. Continue reading “Guest Post: 20 years after Beijing: let’s take a few steps back.”

Guest Post: 20 years after Beijing: let’s take a few steps back.

Health, Gender-Based Violence and the Right to Reparations in Ireland.

I do not accept the Deputy’s comment that the Government is neither sympathetic nor decent in respect of the work it does here. As pointed out with regard to the Magdalen laundries, Priory Hall and many other sensitive serious issues the Government has been sympathetic and decent.

Enda Kenny, May 2014.

Redress is in the news again. The long-awaited Redress for Women Resident in Certain Institutions Bill will be debated in the Dail next week. Justice for Magdalenes Research have condemned the Bill for ignoring Mr. Justice John Quirke’s recommendation that the women receive the equivalent of a HAA medical card. ((For a very clear explanation of the difference between what the government is promising and what Quirke recommended, see Maeve O’Rourke here. See here for an especially patronising response to these concerns from the Taoiseach, suggesting that the state’s primary concern is to protect women from fraudulent ‘angel healers’)) At the end of January, the first of many symphysiotomy cases comes on for hearing in the High Court. Meanwhile, the Harding Clarke redress scheme is clearly stalling badly, judging by its own progress reports. Progress on the Magdalenes redress scheme is similarly sluggish.  Neither redress scheme has drawn much praise (see here and here). But now it appears that the government is unwilling even to fulfil the limited promises it made to victims.

In 2011, UNCAT said that the state must “ensure that all victims [of the Magdalene Laundries] obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible.” Last summer, the UNHRC held that the state must “provide the survivors of symphysiotomy with an effective remedy for the damage sustained, including fair and adequate compensation and rehabilitation, on an individualized basis.” How do we understand the state’s current lacklustre responses to these obligations?

We already know that the state’s agents are willing to install, and vigorously police, essentially arbitrary distinctions between classes of citizen who have a claim to financial reparation for historical injury. A recent example is the State Claims Agency’s high-handed disregard for Louise O’Keeffe and another 135 adults who were sexually abused in primary schools before 1991. Others are written into the terms of reference of the inquiry into the mother and baby homes, which exclude both the Magdalene laundries, and private illegal adoptions from investigation. The state’s treatment of these issues is at an early stage. Indeed, it is not yet clear whether the mother and baby homes investigation will lead to a programme of redress, financial or otherwise. But the experiences of women who have applied to the state for redress gives us a sense of what awaits these groups in the future.

There has been almost no academic examination of the operation of established Irish redress mechanisms, or of the suite of practices which are already being used to minimise the redress paid to survivors of historical abuse. Such studies are badly needed. However, at the moment, we can clearly see that the state is undermining access to redress for both the Magdalene women and survivors of symphysiotomy and is using parallel techniques to do so.

Improper reliance on records which are untrustworthy or difficult to access:  Women who have applied to the Magdalenes redress scheme have reported difficulties in establishing their length of stay. The size of a woman’s redress payment under the scheme is based on how long she was in a laundry. The relevant records are held by the religious orders. In 58% of cases, according to the McAleese report itself, the date of exit was not recorded. In other cases, women’s own testimony as to their length of stay is contradicted by the religious orders’ records, often by a matter of some years. In such cases, the government says that it will explore records held by other departments. So far, it is not clear whether a woman’s own word – for instance in a sworn affadavit – will do. Some women will be required to submit to an interview – which presents clear difficulties for those who cannot travel, who still live the religious orders who ran the Magdalene Laundry where they were first incarcerated, or who otherwise lack capacity. If a woman disagrees with the provisional assessment of her length of stay, she is expected to request that her claim be reassessed by ‘an officer of a higher grade’ within the Restorative Justice Implementation Unit at the Department of Justice, whose decision can then be appealed to the Ombudsman. The state makes a minimal contribution to her legal fees.

The symphysiotomy redress scheme is, at least, overseen by a judge but both schemes are driven by bureaucratic, paper-based assessment. So, the same issues arise in relation to symphysiotomy. In order to apply for a payment of 100,000 euro under the symphysiotomy redress scheme, women must show that they suffered various injuries as a result of the procedure, and that the injuries continued for more than 3 years after the symphysiotomy was performed.  To demonstrate that temporal and causal link, the women must be able to provide records which date from the time of the symphysiotomy, including GP records. The Minister for Health believes that the women’s symphysiotomy-related disabilities are evident from looking at them, but that is not the sort of test the scheme applies.

“A current medical report based upon a subjective history of events as you tell them to a doctor is unlikely to be sufficient evidence to satisfy the requirements of 1B of the Scheme. Objective evidence showing medical investigations or treatment over the years attributable to the surgical symphysiotomy will be required.”

Many women did not approach a doctor for years because of the traumatic effects of the surgery. Others did not obtain, at the time, appropriate treatment or referrals which would indicate the types of injury which qualify for redress under the scheme. Some women’s GPs have since died, and they are being asked to trace records from other specialists, hospitals and pharmacists. In order to apply for any redress payment at all, of course, women must be able to identify the hospital where they underwent the procedure, and the date when it was performed. This is another hurdle. In December, a cache of unpublished records relating to the performance of symphysiotomy in three major maternity hospitals was released, but women are still experiencing difficulties in obtaining their individual files.

The state is, of course, aware of these problems. In a recent progress report, those administering the Symphysiotomy Payments Scheme admit that most of the 568 applications received by the scheme closing date were not accompanied by the required records. It is inevitable that, like the Magdalenes scheme, this scheme will need to alter its expectations if the very large number of outstanding applications can be properly processed.

In sum, both redress schemes require ill, elderly, and in some cases very vulnerable women to navigate inadequate systems of record keeping, and the burden of proof is firmly on them.

Closing off other avenues to recompense: Both the Magdalene and symphysiotomy redress schemes require the women to waive any future legal claims against the state (and in the case of symphysiotomy against a raft of other private parties). State-funded hospitals are, of course, defending symphysiotomy claims with astonishing energy, leading to unnecessary delays in cases’ coming on for hearing, and perhaps discouraging women who  would otherwise insist on their right to access the courts.  Justice for Magdalenes Research has argued that the waivers are on shaky ground now, because they were signed on the understanding that the state would make very particular provision for the women. If the state’s position has now substantially changed, the women may have claims in legitimate expectation, or may be able to revive other substantive legal claims by setting the waiver aside. Members of Survivors of Symphysiotomy are bringing a batch of civil claims to court in the coming year (though, as I have written before, the redress scheme is designed to back them into a corner and persuade them to give the claims up).

Inadequate investigation of wrong-doing: We have been over this point – about the inadequacy  of the McAleese and Walsh reports – many times before. Neither report was designed to establish liability, both reports ignored available routes to survivor testimony, and advocacy groups have repeatedly expressed disquiet about the ways in which both reports have downplayed the seriousness of the harms which women suffered. Justice for Magdalenes Research have been working on an alternative study which contradicts key findings of the McAleese report, while Survivors of Symphysiotomy look to the courts, and possibly other fora to produce better individualised narratives of the ‘truth’ of the practice. Women have also given important testimony to (largely foreign) media outlets such as the GuardianAl Jazeera and the BBC. The investigations left the state with too much room for manoeuvre, because they do not attribute real responsibility to anyone. Both redress schemes are ex gratia, and this leaves payments especially vulnerable to ‘claw-back’. The State can present itself as ‘looking after the women’ rather than as obliged to atone, and to compel others to atone, in concrete terms, for specific wrong-doing. It can present itself as ‘facing up to the past‘ when its systems of redress often serve to compound the harm women have already survived.

Hostile administration of the schemes: All of the above points to the establishment of schemes which are essentially hostile to women’s claims. But there is more. I have already written about the state’s use of unreasonable time limits to manage would-be applicants to the symphysiotomy redress scheme, by putting both them and their legal advisors under pressure. (The Minister for Health says that these time limits were put in place to help the women to come to a resolution quickly…) It has also repeatedly deployed Patient Focus – a HSE-funded group which has a very poor relationship with the majority of survivors of symphysiotomy – to make statements downplaying women’s valid criticisms of the scheme. Many women will require professional and familial support to engage with either scheme. In that context, some will be vulnerable to exploitation. Justice for Magdalenes Research have also noted that the forthcoming Bill does not make proper provision for women who still live with the laundry orders, and whose decision-making capacity is in question, to have proper advocacy support. These tweets from last week’s Justice for Magdalenes Research press conference speak to women’s sense of disappointment and exclusion. I imagine many members of Survivors of Symphysiotomy would identify with them.

Health, Gender-Based Violence and the Right to Reparations in Ireland.