Update: I have added notes to this post to take account of what has been published elsewhere since the Independent report quoted below. Reporting of the case has been patchy, and sometimes confused. See RTE.ie, the Sunday Independent (quoting this piece), the Sunday Times and the Examiner.
Dearbhail McDonald of the Irish Independent reported on Saturday on what she believes was the first application made under the Protection of Life in Pregnancy Act. The article summarises the facts as follows:
The woman sought to end her pregnancy by invoking Section 9 of the 2013 Protection of Life During Pregnancy Act which permits lawful termination on suicide grounds. [New reports of the case suggest a woman sited at several punishing junctures of Irish abortion law: young, raped, suicidal, with precarious migration status. The Sunday Times reports that the woman was a ‘foreign national’, unable to travel abroad freely because of her immigration status. She discovered she was pregnant at 8 weeks (the Sunday Independent reports she discovered in the second trimester), and immediately sought a termination, apparently because she had been the victim of a traumatic rape. The Sunday Independent suggests that the woman was afraid of how family members would react to the pregnancy. It is not clear how much time passed between her first request for a termination and the consideration of her application under s.9. We do not know whether she applied for a visa to facilitate travel for a termination abroad, or whether this was refused. We know that asylum-seeking women in particular face delayed access to abortion abroad because they must seek permission to travel. Her lawyers argued in the High Court that there had been an unreasonable delay in ensuring access to the process, but it is not clear what the outcome of this argument was. If the delay was a matter of months, as the Times suggests, we are firmly back in the territory of the ECHR judgment in A, B and C v. Ireland – inordinate delay and ineffective procedures rendering the constitutional right to an abortion ineffective and inaccessible.]
The termination was refused by an expert panel.
It was refused even though the consultant psychiatrists on the three-person panel believed that an abortion was justified on suicide grounds, notwithstanding the advanced gestation.
It was deemed, in this tragic case, that the best course of option for maternal and foetal health was to deliver the baby.
The option of a caesarean section in lieu of a termination caused further distress to the woman who insisted she wanted a termination.
The woman then refused liquid or fluids – effectively going on hunger strike.
A care order was sought in court to safeguard the mother and baby’s welfare amid fears the mother would starve herself. [It seems, again from the Times, that this was not a care order. Orders were sought in the High Court by the HSE to allow medical treatment of the woman, including hydration. A further application was brought to require the woman to submit to a Caesarean section but no order was made because the woman had consented by then.The Times says the case returned to court for a third time after the baby’s delivery – it does not say why, but possibly this is the source of the ‘care order’ reporting.].
But she ultimately agreed to have her baby delivered by caesarean section and the baby was born at around 25 weeks before the care order could be finalised.
[The Sunday Times says that the Attorney General was notice party to the proceedings, and that the unborn was also represented by counsel. The latter, so far as I am aware, is a novel move, since this is not an Article 26 reference case. Can we expect to see this happen in the future?]
This article provides scant detail on the facts. [It is not clear how this story came into the public domain. Last year, some details of a termination carried out at the National Maternity Hospital similarly emerged into the media. The Irish Human Rights Commission in its comments on the Bill, warned of the need to take measures to protect women’s privacy. These measures are relevant where termination is refused as well as where it is granted. We can only hope, as @OireachtasRetort observed on twitter last night, that one day women’s reproductive choices will no longer make the national headlines in Ireland.] [It is now clear from the Sunday Times that the story has emerged into the public domain through restricted reporting of two court hearings in respect of this woman – an application for permission to administer certain medical treatment which led to granting of a hydration order, and an application for permission to perform a C-section, which became unnecessary, as the woman consented to it.]
I will confine my (very tentative) remarks to exploring, insofar as the reported facts allow, how this case connects to the existing law. Comments are very welcome.
This woman applied for a termination under s.9 of the Act. Guidelines for doctors have been drafted, but not yet officially published. S.9 requires that ‘three medical practitioners, having examined the pregnant woman, have jointly certified in good faith that
- there is a real and substantial risk of loss of the woman’s life by way of suicide, and
- in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure.’
This is a two stage test. It is not only a matter of determining that the woman’s life is at risk, but that an abortion is the only reasonable means of eliminating that risk. The Guidelines contemplate that a woman in this position would be referred to her GP, who would refer her to the local consultant psychiatrist. That psychiatrist, having agreed to certify, would have referred her to a second psychiatrist, who in turn, having agreed to certify, would have referred her to a obstetrician, who then refused to certify. We do not know from the article whether the obstetrician refused termination on one ground or the other. (Doctors for Choice have consistently raised the prospect of an obstetrician vetoing two psychiatrists’ findings on risk to life from suicide.) But the panel’s decision must be unanimous, or a termination under the Act cannot go ahead.
How then, to explain the Caesarean? The Act clearly directs the panel of three to consider other measures which would preserve the life of the foetus, and to take them, where possible. Premature Caesarean delivery would appear to fall within the scope of ‘reasonable’ options under the Act. Fiona de Londras has argued that the X case provides, in circumstances where the foetus is viable but a woman’s life is at risk, as here, that the woman may have a constitutional right to have the pregnancy ended in Ireland, but no right to end the life of the foetus. (See Gerry Whyte, quoted here, disagreeing, and arguing that in X the girl’s pregnancy was still in its early stages, and so the X ruling simply does not give any guidance on what should be done where live birth is possible). The constitution may require that other measures are taken to allow live birth. During the Oireachtas debates on the Bill, in which deputies raised the issue of ‘term limits’ or ‘late term abortion’, the Minister for Justice acknowledged the possibility of early delivery. It is important to note that the Draft Guidelines , in a footnote at page 29, contemplate that this ‘early delivery’ falls entirely outside the scope of the Act. It says that:
If the unborn has reached viability, and the best course of action is deemed to be an early induction or caesarean section, this medical procedure would not fall under the Act as it is not a medical procedure during which or as a result of which an unborn human life is ended. Once delivered, the medical staff should ensure the necessary care for the neonate in accordance with clinical guidelines and best practice.
The footnote captures the legal divide on which this case turns. Abortion is an exceptional procedure and requires intensive regulation. Premature Caesarean is simply medical treatment, even if it has its origins in a request for an abortion. None of the things that happened to this woman after she was refused a termination are governed by the legislation. They are in a separate ‘fallout’ space, regulated by ‘best practice’, which may be creative and sustained by human rights, or not. [The government should be asked whether a ‘viability’ threshold is introduced into the Act by the ‘back door’. Is it the case now that a woman who is suicidal, but whose pregnancy is in the late second trimester, cannot obtain a termination in practice, but will always be offered an alternative treatment designed to secure live delivery of the foetus? Can women on the cusp of viability be managed into this zone?]
This case raises a series of difficult questions, and the reported facts are too scant to provide deep analysis. In particular, it is difficult to tell how much time elapsed between the woman’s seeking medical treatment, the s. 9 application and the final Caesarean. However, these facts certainly raise the issue of what should happen where a woman – as initially happened here – refuses the medical procedure presented to her as an alternative to a requested abortion. The Draft Guidelines, as published on the Guardian website, do not provide transparency about this sort of situation, and that is a problem – for doctors, for women, and for the wider public who authorise this law.
- The question of consent is a knotty one, and the facts are not entirely clear. In different circumstances, it would be possible to read the Caesarean as a ‘way out’ of restrictive abortion legislation, as in last year’s Salvadoran case of Beatriz. But here, the woman refused the Caesarean initially. The law will vary according to whether or not the pregnant woman is a minor, and whether or not she is competent to make this medical decision for herself. A woman who is suicidal is not necessarily incompetent, and the article refers to this woman’s agreement to Caesarean section. Katherine Wade recently published a very useful article on this issue in the Medical Law Review . Wade notes that, unlike in the UK, a competent pregnant woman’s ‘right to refuse treatment is not absolute in the Irish context, as it is curtailed by a competing right, namely the right to life of the unborn, which the State is mandated to defend and vindicate under the Constitution’. This is acknowledged in the National Consent Policy. However, as yet, we have no clarity on the ‘balance’ to be struck between women’s right to refuse medical treatment and the constitutional right to life of the unborn. A key problem is that the relevant judgments on pregnant women’s right to refuse treatment have not been published. Wade’s article discusses two cases: South Western Health Board v K and Anor (2002) and Health Service Executive v F (2010). In K, Finnegan P considered the case of a woman who was refusing medical treatment which would reduce the risk of transmission of HIV to the foetus. He advised the woman that if she refused to give birth in a hospital, he would have to make ‘much more serious orders affecting her bodily integrity’. It is not know what those orders would be, or whether they could require a woman to be confined to hospital for a period of treatment. Wade suggests that a court might be more reluctant to order a Caesarean section because of its invasive nature, which would bring strong considerations around the right to privacy, and freedom from inhuman and degrading treatment into play. In HSE v. F, Birmingham J. stated that a woman who was refusing a Caesarean section could not be compelled to have it. No further details of the reasoning are available. In F, as in this case, the woman eventually agreed to Caesarean section. Softer techniques of persuasion leading to eventual consent and falling short of actual imposition of medical treatment do not raise the same legal issues, though the process of ‘getting to consent’ may be very distressing, and may generate delays – for instance – in accessing the right to travel. (We can imagine circumstances, following P and S v. Poland, in which a long and difficult process of persuasion would engage the right to freedom from inhuman and degrading treatment under the ECHR). It may be that a new Act is required to clarify the law on maternal care in this sort of instance. [In addition, we might ask why it is possible to put footnotes in the Draft Guidelines which effectively imply a ‘viability’ threshold at which Caesarean is offered, but apparently impossible to offer guidance on attempting to ensure women’s bodily integrity and privacy in treatment]. We don’t really know what background the 2013 Act is operating against when it favours alternatives to abortion including early delivery. [For further reading on this issue I suggest Rosamund Scott’s Rights, Duties and the Body. None of the newspapers have provided accounts of any legal arguments made in this application in respect of the right to life of the unborn, though the Sunday Times suggests the unborn had its own legal counsel. It is difficult to speculate on what those arguments might have been.][As Dr. Peadar O’Grady notes in the comments below, we should consider whether, in all probability, a woman in this situation, under a forced hydration order and deeply distressed, would have been able to refuse consent to a C-section].
- [The circumstances of the care order mentioned here are not at all clear. It may be that the woman is a teenager, in which case a care order would be sought to allow a District Court judge, or the HSE to consent to medical treatment on her behalf (see p. 105 of the Guidelines). The unborn is not a child for the purposes of the Child Care Act. However, it may be that the foetus here was the subject of a pre-birth assessment, with a view to obtaining an interim care order upon birth. Pre-birth assessments are done where an aspect of the parent’s lifestyle – such as drug use – poses a serious risk to the unborn, or where the parents’ children have previously been taken into care. It is not clear to me whether, as is sometimes done in England and Wales, Irish courts have exercised inherent jurisdiction to make an order before birth which for implementation once the child is born. (In England, of course, there is no concept of the ‘unborn child’ as legal subject.) Perhaps readers can assist in the comments.] [It seems reasonably clear now that the care order was made in respect of the child once born. Several papers have reported that the baby is now doing well, in the care of the HSE. There has been no reporting of the woman’s current medical condition. The Sunday Times writes that a hydration order was granted, and a week passed before the second application for a Caesarean was sought. The grounds for making this order are not clear. We do not know whether the woman was hydrated for a week in order to preserve the life of the unborn child, or whether hydration was deemed to be in her own best interests. If the order was made in her own best interests, then it would appear that there was an issue around her capacity to make medical decisions. The order made would be anal0gous to orders made in respect of the feeding of women with anorexia, who have lost the capacity to make decisions for themselves. See here and here. If there was no issue over her competence, then the possibility that a distressed woman refused an abortion, refusing food was forcibly hydrated for a week in order to bring a foetus to viability would raise serious questions under Articles 3 and 8 ECHR. It is important that we learn what legal arguments were made in this case, so that we can be sure that this did not take place and could not have taken place.]
- It seems from the report that this woman did not exercise her rights to seek a second opinion, or a review under the Act. The Irish Human Rights Commission raised questions about the extent to which the Act’s procedures are made accessible to very vulnerable women. [The Sunday Times says that this woman had limited English. The IHRC expressly raised the issue of whether the Act process was accessible to women with language and literacy difficulties].
- Finally, it is unclear how the decisions taken in this case interact with the constitutional right to travel. S. 18(2) of the Act says that nothing therein shall operate to restrict any person from travelling abroad for an abortion which would amount to a criminal offence in Ireland. The Guidelines do not provide any further detail. A woman might be able to obtain an abortion in the UK after 24 weeks, on limited grounds, including to save her life or to prevent grave permanent injury to her physical or mental health. In many cases, as we already know too well, the right to travel is meaningless to the wide variety of very vulnerable women unable to access it. However, it is likely that reports like this one may discourage women from making applications under the Act at all.
The State’s obligation under the Constitution is ‘as far as practicable’ to defend and vindicate the right to life of the unborn. Scenarios like the one reported in the Independent raise the question of what ‘practicability’ has come to mean. Several commentators have been recalling Sir Nigel Rodley’s ‘vessel’ comments at the UNHRC in July. [If the reports that this woman was raped are accurate, then we are squarely within the territory of these criticisms – the UNHRC expressly noted Ireland’s failure to provide for victims of rape under its abortion law. This litigation would suggest that the public discussion of the UNHRC’s comments has had precious little effect on those charged with enforcing the 2013 Act] It is quite clear that we do not know enough about the possible chains of events to which a vulnerable woman exposes herself if she makes an application under s.9 of the Act. The image of a competent, very distressed woman resorting to the threat of hunger strike – the classic last ditch protest action of those interned, or denied civic voice – in an effort to assert her autonomy should give serious pause for thought. The Irish Independent calls it ‘tragic’. ‘Tragedy’ is often a word we use to signal detachment, from exceptional and rare suffering brought about by fate – events that we can only gawp at from a distance. But this particular set of circumstances is, in an important sense, the product of a constitutional amendment which was never fit even for its proponents’ purpose, and which has been punishing women for far too long. [It is to be hoped that, as a first step, TDs will seek clarity in the Oireachtas on the Attorney General’s involvement in the case, and the government’s position on the orders sought and made in this litigation. The Sunday Times reports that the Ministers for Health and Justice were briefed on the case.]