The National Maternity Strategy was launched this week to great celebration among those with an interest in the maternity services, and rightly so. When implemented, it will offer a lot more choice to birthing women than currently available, including home birth options, more midwifery led care and alongside birth centres, more provisions for auditing for safety purposes and a commitment to improving perinatal mental health care and recognising birth trauma. It is mind boggling however that a maternity strategy in an EU country in 2016 does not have provision for termination of pregnancy except in life threatening situations, which as most people are aware, is as a result of the 8th amendment of the Irish Constitution (article 40.3.3).
While it is common knowledge about the restrictions on abortion which are as a result of the 8th’s stranglehold on the Irish medical system, the Maternity Strategy document is quite informative as to the more hidden effects of the 8th. Of particular interest is the section on consent, which can leave the reader under no illusions as to the impact of the 8th on consent in maternity care in Ireland. The section starts out describing how consent is well established in ethical standards, and to meet such standards that consent should be obtained before any examination or treatment. It speaks of how gaining informed consent is a way to show respect for a person’s autonomy and bodily integrity. It also describes in some detail the procedure for obtaining informed consent, how the information on the procedure should be communicated, including the evidence based risks and benefits, and any alternative treatments available.
Sounds good so far, right?
Wrong. Because we live in Ireland, and Article 40.3.3 of the Irish Constitution is hanging over us, ready to knock any notions of equality or owning our own bodies out of us at a moment’s notice. What happens when we are pregnant, and disagree with a proposed examination, procedure, service or treatment? According to what is outlined in the Strategy, when a pregnant person does not consent to a particular intervention:
“it is also more legally complex, as Article 40.3.3 of the Constitution recognises the right to life of the unborn, with due regard to the equal right to life of the mother” (National Maternity Strategy, p77/78).
The document continues to list the standard procedure for gaining consent, with the caveat that if the woman continues to refuse consent, that “where there are implications for the health or life of the baby, as defined by her team of health care professionals, then the HSE’s National Consent Policy recommends that legal advice should be sought” (National Maternity Strategy, p78).
One such example in the public domain is the case of Mother A. In 2013 an application was made to the High Court by Waterford Regional Hospital to carry out a caesarean section on a mother against her consent, where there was no evidence of risk to the foetus. How many more women are being bullied to give their consent that don’t actually reach the courts? A 2014 survey commissioned by AIMS Ireland reported that less than half of all women questioned said they were given the opportunity to refuse consent to tests, procedures and treatments. This is the culture of “consent” in our maternity services. Women want what is best for their babies, and for their own bodies. Women do their research and know what is acceptable to them in their care. Routinely, procedures and processes such as active management of labour, artificial rupture of membranes, episiotomy among others are carried out in Irish hospitals, often without giving the full risks and benefits to the mother before carrying them out, if consent is sought at all. Women know these procedures are not international best practice, yet the consent policy states that should the hospital insist, women can be bullied using the threat of legal action into consenting to these procedures. That is not consent, it is coercion. It gives a very distressing message to the pregnant woman, that they cannot be trusted to make their own decisions about their bodies and their babies, once pregnant in Ireland with Article 40.3.3 on the books. Women are effectively in chains, handing over the keys to the State as soon as the blue lines appear on the pregnancy test.
The Protection of Life During Pregnancy Act states that abortion cannot be accessed unless a person’s life is at risk, a risk that medical professionals have time and time again described as difficult and dangerous to quantify. The HSE Consent Policy as outlined clearly in the Maternity Strategy document reserves the right to take high court injunctions against women if the health of the foetus is at risk. Yet, if a woman’s health in pregnancy is at risk, under Irish law she does not get to decide that that risk to her health is too much to bear, and that she would end the pregnancy. This is equality? How is risk to the health or life of the foetus quantified? There is a growing body of research which would suggest that stress on the mother can be harmful to the foetus. Threatening women with legal action to carry out a non consensual procedure is hardly conducive to reducing stress in pregnancy. Promises to improve perinatal mental health and assistance to women who experience birth trauma ring hollow when forced procedures and interventions are the reality.
It’s not consent if you’re afraid to say no.