Barriers to first trimester abortion care.

We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project.

As the Citizens’ Assembly turn to the ‘when’ of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it is worth summarising the key problems with first trimester focused access.

Barriers to access

A central problem in the timely administration and delivery of high quality care is the existence of ‘barriers to access’. These barriers can be structural, organisational, social, or personal and are usually a combination of a number of factors which prevent those who need care from getting it. By ‘getting’ here it is vital to recognise that patients are not passive – care is a dynamic process of requesting/approaching and being given care.

Importantly for Ireland, barriers to access are not just imposed from above but are embedded in cultures of care. So removing a barrier is more complex than simply funding an abortion clinic (for example) or making abortion legal as while the clinic may exist it may not have trained staff or have staff willing to perform abortions.  

Access and abortion care

In addition to questions about availability of trained professionals, financing of facilities, and proximity, abortion care has to factor in further barriers relating to abortion stigma and attitudes to abortion and women seeking abortion. As a result of abortion stigma, women may not approach care facilities for fear of repercussions. This barrier can be compounded by underlying norms and social factors both within and beyond caring institutions. If, say, a religious organisation which opposes abortion in all circumstances is placed in control of a hospital, a significant barrier to abortion care will inevitably result.

Abortion care access also needs to recognise the ‘timings’ of care-seeking and care-giving. Women may not know they are pregnant until well into the first trimester. Furthermore, health problems (foetal and maternal) become more apparent as pregnancy progresses. Acute care needs may only be detected in the second trimester or later and even then access may be limited by a lack of geographically proximate facilities.

What does this mean for a first trimester focused law?

The key problem with a first trimester law in Ireland is that barriers to first trimester abortion care are not impacted by liberalisation of abortion under 12 weeks gestation. Doran and Nancarrow’s systematic review (http://jfprhc.bmj.com/content/41/3/170.short; paywall) on barriers and facilitators for abortion care in countries where abortion is legal and the Guttmacher Institute’s regular reviews of barriers to care in the United States highlight core barriers which may not be impacted by this sort of change. These are divided into patient and provider perspectives in the table below.

Women’s perspectives Provider perspectives
Lack of proximate services Moral opposition
Lack of appointments/waiting lists Lack of training
Negative attitudes of staff Too few physicians
Associated costs of abortion Staff harassment
Insufficient hospital resources

Synthesis of barriers to first trimester abortion care – from Doran and Nancarrow (2015)

What would this mean in practice?

If a first trimester liberalisation is instituted then the front-line of sexual and reproductive and maternity care in Ireland will need to be closely explored. As research I have already been involved in highlighted (see here: https://mcrmetropolis.uk/blog/what-happens-when-women-have-to-travel-abortion-care-and-lessons-from-ireland/) communication between services in Ireland is not consistent. There are also significant issues relating to the cultures in hospitals – particularly if the Sisters of Charity are to be given ownership of the National Maternity Hospital, the key destination for acute maternal and foetal medicine – which will not be addressed by a legislative change.  

 

Barriers to first trimester abortion care.

Why would any country put abortion in the Constitution?

by Mairead Enright. (@maireadenright)

In Ireland, the abortion debate is often conducted by reference to Britain. Conservatives associate the Abortion Act 1967 with the bogeyman of  ‘abortion on demand’. In the struggle to ‘be different from Britain’, we perhaps miss some of our commonalities with other countries which have taken a similar route to regulating abortion. Ireland is unusual in ‘writing abortion into the Constitution’, but it is not alone. It is very difficult to generalise across jurisdictions, especially because Constitutions perform different functions in different jurisdictions, and are subject to different procedures for amendment. However, a quick survey suggests that Ireland has only about 20 fellow travellers; a few in Europe (such as Hungary and the Czech Republic), more in South America, where the trend began (Chile, Honduras, Ecuador, El Salvador) and the rest in Africa (Swaziland, Somalia, Uganda, Kenya, Zambia, Zimbabwe etc). I am not sure if this is an exhaustive list, and would be grateful for corrections and references. Constitutional abortion provisions take a variety of different forms. Some date to the 1980’s while others are very new.

  • The most common is a broad assertion that the right to life begins at conception or before birth: Czech Republic, Slovak Republic, Hungary, Dominican Republic, Ecuador, El Salvador, Guatemala, and Paraguay. Madagascar has a similar ‘right to health’ provision.
  • Statements of the unborn’s right to life: Chile and statements of the unborn’s right to be treated legally as a born person: Honduras, Peru. Interestingly, like the 8th Amendment, these also date from the late 1970’s/early 1980’s.
  • Provisions which equate the right to life of the unborn with that of the mother: Only Ireland and the Philippines have done this.
  • Provisions which set out the grounds for access to abortion: Somalia, Swaziland and Kenya.
  • Provisions deferring to the legislature, stating that abortion is illegal except as provided by legislation: Uganda, Zambia and Zimbabwe. Kenya and Swaziland have a similar provision, in addition to stating current specific grounds.

What have the results been?

A constitutional abortion provision is generally a mark of restrictive abortion laws. As shorthand, if you use the Center for Reproductive Rights well-known map of abortion laws, you will find most of these countries in the ‘red’ zone with Ireland; officially prohibiting abortion or allowing only life-saving abortions. These regimes are incompatible with women’s human rights to freedom from inhuman and degrading treatment, health, autonomy and so on. A few of our fellow-travellers are in the ‘yellow zone’, permitting access on grounds of physical and sometimes mental health and foetal impairment. Whatever the law says on paper, practical access to abortion is often poor, even for those women entitled to it in principle.

However, not all of these countries have such restrictive abortion laws. Hungary and the Slovak and Czech Republics have more liberal abortion laws than Ireland, at least on paper. A general statement of the obligation to protect unborn life does not in itself translate into either criminalisation, or restrictive grounds for abortion. The Constitutional Court of the Slovak Republic held in 2007 that a 12 week period of abortion on request was compatible with the constitutional provision on unborn life. Despite the Constitution’s foetal life provision, it was possible for the Slovak court to come to a similar position to that taken by constitutional courts elsewhere in Europe. Ireland’s Supreme Court has not be able to draw similar conclusions because the Supreme Court in X  held that the mother’s right to survival and the foetus’ right to be born are equal.

That said,  foetal life provisions are malleable, as are all constitutional rights. They operate in their particular context. Similar constitutional provisions are invoked to support regressive abortion policy in Hungary,and criminalisation of women in Ecuador. They can also ground extremely restrictive judgments by superior courts, as happened, for example, when an attempt to decriminalise abortion in the Dominican Republic was struck down, and when the Chilean constitutional tribunal blocked government efforts to distribute the morning after pill. Famously in El Salvador in 2013, the Supreme Court denied a seriously ill woman a termination even though her foetus could not survive birth.

The African provisions might catch the eye of those lobbying for ‘replacement’ rather than repeal. Some of these are indeed liberalising amendments by comparison with what preceded them. However, they are vulnerable to political intransigence. In Kenya, for example, lack of guidelines interpreting the constitutional provision has left doctors unwilling to provide legal abortion services. A case is forthcoming in the High Court. In Swaziland, although women’s groups welcomed the constitutional reform, no steps have been taken to legislate for abortion. Inconsistent interpretation of the abortion law has also been a problem in Uganda. As we know in Ireland, while abortion is in the constitution, legislators can (perhaps paradoxically) shirk their responsibility to legislate for it.

How does abortion end up in the Constitution?

It is impossible to answer that fascinating question fully for all of these very different countries, in all their complexity, in a single blog post.  In Ireland, constitutional abortion law has been a place to work through and make statements about national identity; abortion is the place where religious, post-conflict and post-colonial tensions meet. In 1983, PLAC capitalised on a period of political instability to place a near-permanent block in the way of women’s reproductive rights. It is an old adage that these tensions are worked out over women’s bodies, often with the assistance of powerful foreign lobbies.

Sometimes the identitarian nature of other countries’ law seems to appear on on the face of it. Somalia’s abortion provision, for example, explicitly references the shari’a. In other cases, we have to look to the context in which the provision was inserted into the Constitution.

Older constitutional abortion laws are associated with regimes which place a premium on national identity, whether as part of a process of self-definition after a prolonged period of violence, or as part of an ideology of ‘national security’ associated with military authoritarianism. Honduras’ provision is in a constitution passed in a period of instability after 10 years of military rule. One of the oldest constitutional abortion laws is Chile’s; passed by referendum in 1980 under Pinochet’s dictatorship. It is also interesting to note that many of the African countries mentioned, like Ireland, inherited their abortion law from the British in 1861. Abortion is tied up in postcolonialism, for them as for us.

Often the presence of an abortion provision reflects a religious backlash against what is perceived as unduly permissive abortion law. Zambia’s Constitution, for example, permits the government to legislate for abortion, and abortion is legal on narrow grounds. A new Zambian Constitution passed last year but a proposed constitutional provision – inserting a foetal right to life – has been deferred, pending the achievement of consensus. The new foetal life provision was intended to reflect the ‘Christian values’ underpinning the new Constitution. In Kenya, church leaders demanded a ‘no vote’ to the 2010 Constitution on the basis of its abortion provisions, even though they did not change the content of the pre-existing abortion law at all. Similar pressures succeeded in El Salvador, where in 1999 the Catholic church was a significant force in securing a foetal life amendment to the Constitution against feminist opposition. The involvement of the institutional Catholic church in repressing abortion reform is a theme across Latin America, where hostility to abortion has proved compatible with Leftist as well as with conservative government.

Conclusion

There is surprisingly little comparative work on constitutional abortion provisions. Ireland, however, would do well to pay attention to constitutional abortion provisions as a legal strategy; to ask what they have been used to do elsewhere; and to pass future laws which express, not a faith in Irish exceptionalism, but an awareness of the 8th Amendment’s global resonances. We tend to associate constitutional law with certainty and technicality, but a quick review of the history of constitutional abortion provisions suggests different associations; with stalled law-making, human rights abuse, and sacrifice of women’s interests in the pursuit of shared values.

Why would any country put abortion in the Constitution?

#Strike4Repeal: Strike Against the Citizens’ Assembly?

This International Women’s Day sees women worldwide engaged in strike action. Irish women strike for repeal of the 8th Amendment: the constitutional provision which prohibits abortion except where the pregnant woman’s life is at risk, and the only means of avoiding that risk is to terminate it. But more than that, the law pledges the state to protect the right to life of the ‘unborn’, from the moment of implantation, against the actions of the woman who carries it. In recent years, this law has been used  to delay medical treatment to a woman suffering an inevitable miscarriage at the cost of her life; to keep a woman’s body on life support after brain-death in an attempt to prolong her second trimester pregnancy to viability;  to  forced Caesarean section on a young suicidal rape victim; to deny countless women the right to refuse a wide range of interventions in pregnancy and birth.  

Fearful expulsion is the abortion law’s most ordinary side-effect. Women needing abortions – perhaps a dozen a day – travel abroad, while others perform early medical abortions at home. Irish women save to pay for their own abortions: for travel, accommodation and medical fees. In the time it takes to save, they find that they need more expensive abortions because their pregnancies are further along. The abortion regime also depends on women’s ability to access abortion out of sight; whether by travelling abroad or by procuring one in secret at home. Some solidarity is available for funding, but nobody can buy you time.  On and off the job, abortions mark working time. Women plan abortions for weekends, ‘sick days’, paid and unpaid ‘holidays’. By taking women’s bodies out of the workplace for a day, this strike underscores not only the importance of reproductive labour in general, but these specific relations between work and managing and undoing unwanted pregnancy.

The publicness of this strike is an important counterweight, not only to the secrecy of travel and of home abortion, but to the shaming and silencing on which effective regulation of women’s reproductive lives depends. It makes visible many of the networks of care and solidarity which allow women to survive that silencing and shame. And in a week which saw yet another official ‘rediscovery’ of the recent brutal history of incarceration of unmarried pregnant women in Ireland in institutions which set store by the the terms of women’s assembly in church, in religious parades and in the streets, the importance of this black-clad public assembly, this unexpected return, cannot be overstated.

But Strike for Repeal is also about law-making. The strike is framed as a response to the government’s failure to call a referendum by March 8th. There is clear and growing public demand for liberalisation of the law. Left-wing TDs have repeatedly asked for an immediate response to that demand: not only in the shape of a referendum, but of a softening in the worst effects of the abortion regime, by reducing criminal penalties, regulating exploitative bogus pregnancy counselling and providing some relief for women whose foetuses are diagnosed with fatal foetal anomalies. The government has repeatedly blocked these demands. It installed the Citizens’ Assembly as a precursor to any legislative deliberation on the prospect of constitutional change. The Assembly consists of a judge (an ‘appropriate woman‘) and  99 citizens chosen by a polling company; supposedly representative of the people in terms of gender, age and geography. It is an exercise in ‘deliberative democracy’ designed to produce ‘vital consensus on behalf of us all’. However,  the government has made no firm commitment to implement the Assembly’s recommendation. These  will likely be filtered through further committees. No timeline has been set for proposal of a final reform bill. A popular referendum is not expected until 2018 (coinciding, of course, with a Papal visit). The strike protests delay: the refusal to recognise the abortion issue as urgent. That denial of urgency must be understood in the context of a broader attitude to law-making. The government presents aching slowness and caution as essential to any legal change on abortion  because it is understood as an issue of unique moral weight. The judge-led Assembly embodies a desire to discipline processes of legal change, ensuring an incrementalist approach which is presumptively civilised and civilising, never destabilising, immune to popular politics.

What the government calls disciplined law-making has two characteristics: ‘neutrality’ and ‘balance’. A concern for neutrality ensured that no lawyers who had expressed an opinion on the Irish abortion debate were invited to present to the Assembly, or appointed to the panel of academics which advised the Assembly on the selection of expert speakers. When the Assembly received over 13,000 written submissions, neutrality apparently justified the decision to select 300 at random for the Assembly members to read, without regard for content or repetition. ‘Balance’ means something more than impartiality. Speakers, whether advocates or experts, generally appeared in pairs: pro-choice and pro-life. Balance, then, is always binary. Presentations of the law, interestingly, were not made in pairs. Perhaps, once experts in abortion law had been excluded from Assembly proceedings, no balance was required in this respect. The perceived need to ‘balance’ presentations allowed ample voice for pro-life and conservative religious organisations and speakers, well in excess of their support among the broader population. In the process, it obscured the pluralism of the pro-choice majority. The Assembly heard, not only from pro-life medical ethicists and religious leaders, and Irish conservative organisations, but from prominent American pro-life activists, chosen by Irish organisations to speak in their place. Meanwhile, several Irish pro-choice advocacy groups were excluded, including important representative organisations for women who have had abortions, such as the Abortion Rights Campaign, and Termination for Medical Reasons Ireland. No organisation representing women of colour was invited to speak. When the Assembly heard women’s scheduled direct accounts of abortion, it was not in person, but in the form of short, edited and anonymised audio recordings of interviews with women who had ended pregnancies in a narrow range of circumstances. For ‘balance’, some of these recordings were of women who had not ended their pregnancies.  By adopting ‘neutrality’ and ‘balance’ as lodestones of the process, the Assembly suggests that the statements and presentations made to Assembly members are all equally valid and valuable found objects, which speak for themselves, rather than contested and contestable political artefacts created for and by the Assembly. In particular, non-interventionist neutrality ensures that the Assembly operates without any ‘fact checking’ resources. So, by and large, the members are left to weigh presentations and submissions for themselves, or  rely on other speakers to devote some of their allocated time to correcting misrepresentations. Several members of the Assembly have asked penetrating, and at times critical questions, and recently indicated support or displeasure through spontaneous applause. Some women speaking before the Assembly have also been able to subvert the imposition of particular forms of civility.Watch, for example, the gesture of Sinead Redmond of Parents for Choice giving her testimony with her baby daughter; their own pairing gently provoking conservative conceptions of the incompatibility of motherhood and choice. However, these moments of substantive critical agency  are just that – performative moments – which occur in spite of, rather than because of the formal Assembly process.

It may be that the Citizens’ Assembly process is supposed to reassure women. It is supposed to remind us of the Constitutional Convention, which we are assumed to remember as the liberal pump-primer for Marriage Equality. Watching the Citizens’ Assembly meetings over the last 4 months, I have been reminded of other antecedent processes established to address historical gender-based violence against women – also judge-led; also scrupulously careful to restrict space for women’s direct testimony; also insufficiently critical of narratives that seek to justify and legitimate treatment which women call injury and harm; also designed to settle, neutralise and rebalance women’s claims to reparative and transformative reproductive justice. The Assembly, on this reading, reinforces an expectation that women are not entitled to appear before law on their own terms, even where law is to be applied to the most intimate dimensions of their lives.

Jon Berger wrote that mass demonstrations were not, as is often commonly thought, an attempt to convince the state to change a hated policy. Instead, they artificially created events, separated from everyday life, which ‘express political ambitions before the political means necessary to realise them have been created’. The state’s response to these ambitions does not matter very much. What matters is that those participating, and those sympathetically witnessing the demonstration become more aware of their shared purpose and fate; feel themselves standing together against the state’s projects. Berger argues that demonstrations are ‘rehearsals of revolutionary awareness‘; they may foreshadow revolution, or perhaps revolutionary return of something suppressed. Strike 4 Repeal is a complex movement. In its demand for an immediate referendum, it enacts a struggle for law: it is a necessary agonistic demonstration of appetite for law and law-making processes which are not contained by appeals to balance and neutrality. It is a warning of the impossibility of suppressing women’s diverse and complex demands for legal change and a rejection of past governmental tactics of repression and control. Women gather in black today at 12.30.The recent work of Jesse Jones on gender, reproduction and Irish law references an Italian feminist protest chant which captures the possibilities: “Tremble, tremble, the witches have returned!” 

#Strike4Repeal: Strike Against the Citizens’ Assembly?

Notes on Judge Harding-Clark’s Report on the Symphysiotomy Payment Scheme.

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.

Notes on Judge Harding-Clark’s Report on the Symphysiotomy Payment Scheme.

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