Article 40.3.3, the 8th Amendment to the Irish Constitution, was introduced in 1983 and equates the life of a pregnant woman with the life of the embryo/foetus. This means that abortion services are unavailable even in the case of fatal foetal abnormalities or when a woman becomes pregnant as a result of rape. It means that approximately 12 women per day are forced to travel to the UK to obtain health services unavailable in Ireland.
But beyond the issue of abortion, the 8th amendment also has a huge impact on the care that pregnant women receive in Irish maternity services. This is the hidden impact of the 8th amendment, that often women only become aware of when they are consumers of maternity services, and their care and bodily autonomy is compromised where there is an actual or perceived conflict between the mother’s health and the right of the foetus to be born alive.
Consent in Pregnancy and Childbirth
The HSE’s National Consent Policy restricts informed consent and informed refusal of treatment for pregnant women. To quote the policy page 41, Section 7.7.1 “because of the Constitutional provisions on the right to life of the unborn [Article 40.3.3] there is significant legal uncertainty regarding a pregnant woman’s right to [consent]”. This section of the policy allows the HSE to apply for injunctions from the High Court which compel pregnant women to receive treatment where they do not consent to proposed treatment plans, whether these are in line with international best practice or not.
This is in contrast to the following in section 7.7, which refers to non-pregnant adults:
“When consent is refused if an adult with capacity to make an informed decision makes a voluntary and appropriately informed decision to refuse treatment or service, this decision must be respected, even where the service user’s decision may result in his or her death. In such cases it is particularly important to accurately document the discussions with the service user, including the procedure that has been offered, the service user’s decision to decline and the fact that the implications of this decision have been fully outlined.”
This impacts directly on many aspects of maternity care in Ireland – antenatal, labour, and birth. It directly removes and overrides the woman’s right to consent for any procedure during labour and birth where that is deemed to endanger the life of the foetus. It eliminates the requirement for informed consent and is frequently used to coerce a mother into procedures without information or consultation, or consent needing to be sought, at times going so far as to threaten to obtain court orders to enforce her compliance and using other legislation such as child protection legislation to further enforce compliance. This restriction to consent was highlighted in the 2014 AIMS Ireland survey of 2,836 women, where less than half of all respondents said they were given the opportunity to refuse consent to tests, procedures and treatments.
It may be argued where does the safety of the baby come in to all of this? The answer is simple. Women want what is best for their babies. They want a safe and healthy baby. Is it wrong however, for a woman to also want to be safe and healthy? To be given all of the risks and benefits of a proposed procedure and to be afforded the same right to informed consent as any other patient or consumer of medical services? What is actually happening is that women are being subjected to interventions in the absence of consent or contrary to their refusal. Some of these interventions are not evidence based (e.g. routine rupture of membranes or episiotomy) but are simply hospital policy based on a desire to expedite labour and birth and clear a bed for the next woman.
The case of Hamilton vs HSE, concerned an action for negligence by a woman who was subjected to an artificial rupture of membranes (ARM), an intervention which is not best practice according to the UK’s National Institute for Health and Care Excellence (NICE) guidelines. She claimed that she did not consent to this procedure. The ARM led to a cord prolapse (a severe obstetric emergency) leading to a C-section having to be performed and serious damage to her baby. Ms Hamilton lost her case against the HSE with the court stating that:
“Since, on the evidence, this was a routine procedure that [the midwife] was carrying out for the purpose of diagnosis to see if her fear of foetal distress was justified or not, it does seem strange that she would not have mentioned to the patient what she was going to do and have obtained her consent. The very fact that it was so routine suggests that the midwife would have done so. I am satisfied that the probability is that [the midwife] obtained the plaintiff’s consent and informed her about the ARM that she was going to perform”
This was a shocking judgement that implies that health care professionals do not have to seek informed consent, and that implied consent is perfectly appropriate. Following this judgement, healthcare providers do not have to prove that a procedure is necessary or that they have obtained consent from the pregnant person prior to a treatment or intervention.
This ruling, and the overall impact of the 8th Amendment leaves too many grey areas when it comes to women’s experiences of informed consent. One woman feeling that she has been violated or in some way disrespected due to a lack of accurate information about a proposed procedure, or indeed not being given the opportunity to refuse, is far too much. What can be expected in a system thats policy on consent states that the High Court, not pregnant women decide what happens to their bodies, even in situations where they are not seeking an abortion?
In the UK, interventions can be strongly indicated and risks of not carrying out the procedure can be explained but ultimately, it is the woman’s choice. For example, a medical professional may recommend an induction on a particular date but if the woman does not wish to take that treatment path, that is her decision. There are no High Court injunctions granted to force delivery in such cases. As Lady Hale stated in the ruling of Montgomery vs Lanarkshire Health Board, a case in the UK that centred around lack of informed consent:
“In this day and age, we are not only concerned about risks to the baby. We are equally, if not more, concerned about risks to the mother. And those include the risks associated with giving birth, as well as any after effects. One of the problems in this case was that for too long the focus was on the risks to the baby, without also taking into account what the mother might face in the process of giving birth.”
If this is good enough for women and babies in the UK, why do women in Ireland not deserve the same consideration?
It is worth noting that Amnesty International, in their ‘She is not a Criminal’ report on the human rights violations imposed on women in Ireland due to Irish law, have recommended that the HSE Consent Policy be revised, along with the repeal of the 8th amendment and the Protection of Life During Pregnancy Act.
Abortion as a normal part of maternity care
It is well known that abortion by request is illegal in Ireland due to the 8th amendment. The extent of that criminalisation is not as well known to many people however. A 2015 poll commissioned by Amnesty International found that 64% of people polled did not know that it was illegal in Ireland to get an abortion when the woman’s life is not at risk.
Amnesty’s ‘She is not a Criminal’ report also highlighted the negative impact that Ireland’s law has on the quality of care that pregnant people in Ireland receive. Healthcare providers, including prominent obstetricians in Ireland, are often on the record as stating that the restrictive and ambiguous abortion laws, which requires a doctor to wait until the woman’s condition becomes life threatening, are dangerous to the lives and health of women. The Protection of Life During Pregnancy Act intended to prevent situations like that of Savita Halappanavar, who died as a result of doctors waiting to act for fear of prosecution, appears to have made no real improvements for doctors, who are under threat of being criminalised with a 14 year sentence if they misjudge the situation and carry out an abortion with not substantial enough risk. This confusion and fear leads to women’s lives and long term health being threatened, with doctors who clinically know they should act but who need to spend time and effort considering the potential legal ramifications. Risk analysis in medicine is not an exact science, and a patient’s condition can deteriorate more rapidly than expected. Further, the woman’s opinion of the risks being taken with her life are not deemed to be a relevant consideration. She lies in a hospital bed at the mercy of her progressing illness and her caregiver’s interpretation of Irish law. Long term and time critical illness such as heart disease or cancer are not exempted, and result in seriously ill women risking their health to travel for an abortion, in order to access treatments that are not compatible with pregnancy.
Couples who face a diagnosis of fatal foetal abnormality are also not an exception to the 8th Amendment’s ban on abortion. Heartbroken parents are forced to figure out for themselves how to access the care they need in a foreign land, without even a referral from their own doctor. This goes against ethical medical practice and is in contrast to the principles of a normal doctor patient relationship. The Regulation of Information (Services Outside the State For Termination of Pregnancies) Act, 1995, which controls the information that the approved pregnancy counselling services can provide requires that all options are discussed. How cruel and obscene that parents faced with the reality that their baby will die must be talked through the ‘options’ of parenting or adoption, instead of being met with compassion and dignity. That they must go through the process in a strange place without their families and friends to support them and to add insult to injury, receive the remains of their child in an envelope on the back of a courier motorcycle. This is barbaric.
A culture of paternalism
Apart from the HSE Consent Policy, there are many problems with consent and disrespectful treatment of women in the maternity services. This may or may not be related to the 8th, but surely the 8th and the Consent Policy provide an atmosphere where caregivers prone to bullying tendencies and controlling behaviour can flourish, after all, the legal framework permits it. Women’s human rights in pregnancy and childbirth are being trampled on. We need to repeal the 8th Amendment and the Protection of Life During Pregnancy Act. We cannot keep enacting bad legislation on top of bad legislation, which as harsh experience has shown us, just does not work, and simply leads to women being placed at risk. How much more blood needs to be on our hands as a nation before we grow up?
References and useful links
‘Island of no Consent – Maternity Care and Bodily Autonomy in Ireland’ – Sinéad Redmond, AIMS Ireland discusses the implication of Hamilton vs HSE on consent and bodily autonomy for pregnant women in Ireland
‘Childbirth, Choice and the Courts: The 8th Amendment and More’ – Máiréad Enright, law lecturer discusses the legal implications of the 8th amendment on maternity care in Ireland.
What Matters to You 2014 Survey – AIMS Ireland’s survey examining the experiences of women in the Irish maternity services
She is Not a Criminal – Amnesty International’s 2015 report on abortion in Ireland
Sign the Petition to Repeal the 8th