Life at all costs: Growing up with Ireland’s abortion policies
Please note: this article is not a legal analysis, but a recollection of facts, figures and realities from a specific point of view.
It was November 27th, 2014.
By now, the story is well known- or at least, the basic facts are. A woman, in the early stages of pregnancy, was admitted to hospital with headaches and nausea. Two days later, she suffered a fall and was later found to be unresponsive. On December 3rd, she was declared clinically brain dead. She had a loving father and was already a mother to two children, aged 6 and 4, with her fiance, also the father of her unborn child. She was just 26.
What follows is bleak, if not outright harrowing. She was brain dead, but the foetus still had a heartbeat. For a period of weeks after her death, her body was maintained by mechanical ventilation and she was fed by a nasogastric tube. She was given high doses of various medications for pneumonia, fungal infections, high blood pressure, fluid build up and urinary tract problems. Physiotherapy was required. When her children came to see her, efforts were made to improve her devastated appearance: make up was applied, but the whites of her eyes were so swollen than they could not close. One of the children became distressed on seeing her. Her body swelled. An open wound on her head became infected. She no longer resembled the photograph of herself on the bedside table.
The woman’s father was told that this course of treatment would continue, ostensibly for the duration of the pregnancy. The idea was to attain foetal viability- to bring into the world the unborn foetus lying inside its brain dead mother while her corpse degenerated around it at a rapid pace. The doctors felt trapped by a decision made in an Irish referendum in 1983, relating to the right to life of the unborn child. Article 40.3.3 of the Irish Constitution states as follows:
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
Her father asked that life support be discontinued, as did her partner. They felt that the support measures were unlikely to safely bring a child into the world. They felt the treatment was experimental and not based on any ethical principle. Medical staff said they felt constrained because the foetus still had a heartbeat.
How is it that Ireland’s doctors find themselves using a dead woman as an incubator, in the vague, unqualified, unscientific hope that a child may be born eventually of the experiment? How is it that this could be, not just legal, but possibly Constitutionally protected?
To find the answer to the question, we have to go back in time and consider the status of women and the unborn in Ireland- as well as Irish society itself.
In January 1973, the United States Supreme Court heard the infamous case of Roe v Wade, where the Court held in favour of abortion on privacy grounds. The case is controversial to this day- but perhaps less understood is its impact on the international community. Later that year, the Irish Supreme Court heard the case of McGee v Attorney General and considered that there was a broad right to privacy in marital affairs- a similar reasoning to that used in Roe v Wade to allow abortion. There was a fear that this finding could be extended to include the right to an abortion in Ireland.
A campaign grew, led by the Pro-Life Amendment Campaign, to introduce a constitutional ban on abortion. The group lobbied political parties to introduce a Bill to amend the constitution. Just before the general election of 1981, political capital was at a premium. The heads of the major parties agreed to the proposal by PLAC and in a turgid time for Irish politics, two general elections were held in 1982. All three major parties found themselves holding power in a short space of time- the Fianna Fail government introduced the Amendment Bill, and the Fine Gael/Labour coalition later passed it and ran the referendum in 1983.
I didn’t vote in the 1983 referendum. I wasn’t born yet. The referendum passed, with 67% support from the electorate. The right to life of the unborn was introduced to the Irish Constitution.
Almost ten years passed. A fourteen year old girl was raped by a neighbour and became pregnant. She and her parents made a decision that they would travel to the United Kingdom to procure a termination. The Attorney General obtained an injunction to prevent that.
The girl told her family, the police and a psychiatrist that she had committed to ending her life to solve the problem. In the landmark case of Attorney General v X, the Supreme Court considered the 8th Amendment and the life of the 14 year old rape survivor. The Court (incidentally, five men) held that a woman had a right to an abortion under Article 40.3.3 if there was a “real and substantial risk” to her life. Suicide was considered to be such a risk and X was permitted to travel to the United Kingdom. X miscarried shortly after the decision was made.
After the X Case, in November 1992, a further three Amendments to the Constitution were brought before the people of Ireland. The 13th and 14th Amendments, allowing pregnant women to travel to another state and allowing the distribution of information about abortion services in foreign countries, passed. The 12th Amendment proposed that abortions would still be prohibited, even in cases where the pregnant woman was suicidal. The Irish electorate rejected the 12th Amendment.
When the X case was heard in 1992, I was not yet 2 years old. As a result, I didn’t vote in the 1992 referendum.
In 2002, an effort was made to tighten the constitutional ban on abortion- again, it sought to remove the threat of suicide as a grounds for legal abortion. Up to that time, no Government had yet legislated for the finding of the Supreme Court in the X case. The referendum was defeated, narrowly, by the people of Ireland- and the issue was put quietly back on the shelf.
I remember clearly that 2002 was the first time I saw the placards of foetuses on the streets. I have seen them many times since, but at the time, as a child, they frightened me. I was 12, and I didn’t understand.
In 2010, the European Court of Human Rights found Ireland in violation of the European Convention on Human Rights in A, B and C v Ireland. Ireland was in breach of the Convention because of a lack of clarity- there was nowhere for a woman to go to secure a legally authoritative determination of what her rights were.
In 2010, I turned 20. Two years into my undergraduate degree, the issue of abortion had cropped up quite a bit. I didn’t (and don’t) like the idea of terminating a pregnancy. Nobody does. I am confident that not one person in this world has ever grown up thinking “I want to have an abortion some day!” But the more I learned and thought about it, the more I realised that abortions are necessary and as such the procedure should be safe and legal- and rare.
I had talked about it with friends over the years, though it was a tricky enough subject in an all girls Catholic school. We were given sex education when I was 17 and were told that we “couldn’t learn about condoms” because “the nuns wouldn’t like it.”
Not only was 17 way too late to be introduced to the idea of a condom, the sense of shame and moralising about the whole thing was infuriating. Sex education shouldn’t be shameful or criminal- it is necessary and the burden of it is a responsibility that isn’t given enough weight in Ireland.
We need to teach our young people about sex properly- about consent, about protection, about safety, responsibility and fun. We need to do it without a red face and with plain honesty. Sex isn’t shameful; disallowing sex education because the nuns wouldn’t like it is.
The A, B and C judgment sat there, rudely cropping up every now and then when Government was questioned, nationally and internationally, about abortion in Ireland. The news cycles were more concerned with the death of the Celtic Tiger and the emigration of thousands of Ireland’s young people- the bust had arrived and the word ‘Recession’ was for a time perhaps more hated than ‘Abortion’.
In October 2012, Savita Halappanavar died at University Hospital Galway, having been admitted suffering a miscarriage in the 17th week of her pregnancy. She requested an abortion but her requests were refused, as were those of her husband. “This is a Catholic country”, they were told, and the foetus still had a heartbeat. Savita was allowed to lie in a hospital bed for a number of days, developing septicaemia. After three days in hospital, the remains of the foetus were removed after a diagnosis of septic shock was made- but it was too late for Savita, who died of blood poisoning, organ failure and cardiac arrest seven days after she arrived at the hospital. She was 31 years old.
Protests sprang up overnight. A movement was started by pro-choice groups to legislate for the X case. The pro-life campaigns accused “abortion campaigners” of exploiting Halappanavar’s death for political gain.
They were correct: pro-choice campaigners did use Savita’s death for political gain- and it should happen again, over and over if need be, until women are treated with enough respect to make their own decisions about their own bodies in Ireland.
At the time of Halappanavar’s death, women in their thousands were going to the United Kingdom to procure abortions. Of course, those thousands were the women who could afford the plane or boat. Those thousands were the ones who could make the trip. Among those thousands are women who have experienced complications, who haven’t had counselling, who have hidden their journey, afraid, scared, demeaned and degraded by successive governments in their own country. Documented also are the migrant women who have sought safety, security and a future in Ireland- they too find themselves ill prepared and ill equipped when a termination, for whatever reason, is their preference.
Fatal foetal abnormality? Go to England. Raped? Go to England. Can’t afford to raise a child? Go to England. Severe health risks? Go to England. “Going to England” is a droll, dry joke in some conversations in Ireland. Those who have discussed it will know precisely the tone that comes with uttering those words.
I have spoken, at length, with friends about abortion. We have no choice; it has dominated countless national news cycles since we were infants. If the day should come, I know who I could ask to accompany me on such an awful journey- and I know who I could not, for fear of judgement and reproach. I have spoken to women who have made that trip and I honour their courage and their unending strength. No matter the reason, it is a path fraught with terror. Often, there is nobody there to hold a hand, give assurance, support and unconditional love. It is despicable precisely because it is unnecessarily punitive.
In 2013, the Government perhaps felt they had to bring some clarity to the situation. Pressure had mounted and the debate nationally had become angry and foul-mouthed. Terms like ‘abortionist’, ‘murderer’, ‘pro-abort’ and ‘Jesus freak’ were tossed around with aplomb.
Previously, the legislation governing abortion in Ireland was the Offences Against the Person Act 1861, transcribed into Irish law when Ireland gained independence in the 1920s. 20 years had passed since the X case judgment and no government had introduced legislation on the topic.
The awful, unbearable grief of the Halappanavar family changed the record and the Protection of Life During Pregnancy Act 2013 was passed by the Fine Gael/Labour coalition.
Under the 2013 Act, where there is risk of loss of life from physical illness, two physicians must concur that a termination is necessary to prevent a risk of death. They should consult the patient’s GP also. Where there is a suicide risk, three physicians must concur that the termination is necessary- an obstetrician and two psychiatrists. At least one of these should consult with the patient’s GP. Where a termination is requested and refused, a woman may appeal to the Health Service Executive (HSE), which establishes a panel of physicians, two or three of whom review the application.
In short, if you are a pregnant, suicidal woman, the Irish state does not, cannot, will not accept your interpretation of how you feel. Instead, you will be weighed and measured. If you are found wanting and demand a second opinion, one will be given to you by another group. Plenty of people will have a go at deciding if you, as a woman, are suicidal. Your own opinion is not and never will be enough for Ireland. Physicians who have a conscientious objection to abortion are absolved from these decisions; we care more for their sensitivities than we do thousands of women in dire pain and need.
Under the 2013 Act, the punishment for ‘destruction of unborn human life’ is a maximum custodial penalty of 14 years.
Let me give you some context for that fact. In 1994, X’s attacker was tried and convicted of rape and sentenced to 14 years in prison. He served 3 years before release. In 2002, he was convicted of sexual assault and false imprisonment of a 15 year old girl and was sentenced to 3 and a half years. In Ireland, a repeat sexual offender who preys on young teenage women is treated with more mercy than a women who procures an abortion.
If you’re not angry yet, you should be, but I’ll give you one more. In 2013, it was found that the average sentence for rape in Ireland is between 5 and 7 years. While the 2013 Act hasn’t yet been tested (that I know of, at the time of writing), the logic stands: a woman procuring an abortion could receive 14 years imprisonment. If she was raped, her rapist might serve 7. It is unfathomable, unthinkable; it isn’t right.
I remember when the Bill passed through the Dail and made its way down the hall to the Seanad. I commented on Twitter that I felt it would do more harm than good- and I was lambasted. Members of one political party sent me messages suggesting that I ‘change my tone’ and stop ‘letting down the women who have fought for this Bill.’ To this day, I believe that I was correct: the 2013 Act belongs in Victorian times, not in a progressive, democratic, egalitarian society. Women are not to be placed in a bed and examined by teams of others who proclaim to know better- because they don’t.
Unless they have been raped, experienced a crisis pregnancy, felt shame when purchasing the morning after pill or nauseous boarding that flight to London, they simply cannot know more than the woman who lived it. That feeling you got in your stomach when your parents fought as a kid, that squelchy, awful, tense, clammy fear? Multiply it, multiply it by millions and you might have some notion.
At some point during those debates on the 2013 Bill, the hashtag started: #repealthe8th. A reference to the hope that the 8th Amendment to the Constitution could be withdrawn; that the ban on abortion could be lifted. It grew and it grew.
And so we arrive back in 2014- but not back to the beginning just yet. There’s one more story to tell here and to leave it out would be an injustice.
A young woman claimed asylum in Ireland. She was raped in her home country and during a medical check, learned that she was pregnant. She immediately expressed her desire to die, rather than bear her rapist’s child, eight weeks into her pregnancy.
As an asylum seeker, she had limited documentation and limited rights to travel. Asylum seekers in Ireland receive €19.10 per week as an allowance and they are not allowed to work. Frankly, she didn’t have the means to get to the United Kingdom to procure an abortion.
She began a hunger strike and refused fluids. Under the 2013 Act, a panel of three experts was convened and she was certified as suicidal. It was agreed the pregnancy should be terminated. A High Court order was obtained to force feed her.
She was told she could have an abortion- but then told that her only option was a Caesarean section, as the pregnancy, at 24 weeks, was too far along. A baby boy was delivered prematurely by C-section. The mother had no contact with him. She told The Irish Times that the course of events was, in her view, an injustice. Pro-life groups named the child ‘Hope’ and marched for him.
Ireland forced an asylum seeker on hunger strike to bear her rapist’s child. We call her Migrant Y- a follow on from the X case, the situation for a disenfranchised woman no better, no more humane.
It is still 2014. It’s Christmas and I am 24 years old. The abortion debate has been trudging on through my entire lifespan- and then some. It crops up often in conversation, in work and at home.
My thoughts on it have become clear as the years have passed; I have thought about it from every angle and I have emerged as one of those who believe that abortion is a medical procedure that should be available on demand. I don’t know the struggles of another woman’s life and I sure don’t have a right to moralise. I have been called baby killer, abortionist, murderer. I have been called disgusting.
On December 16th, the Minister for Health, Leo Varadkar was commenting on a Private Members Bill introduced by Clare Daly- a Bill on a possible Constitutional amendment supporting bodily integrity and personal autonomy. The Minister’s political party is effectively a pro-life party- but I watched him as he questioned the 8th Amendment for the first time.
“Speaking today as Minister for Health and as a medical doctor, and knowing all that I do now, it is my considered view that the eighth amendment is too restrictive.”
“The eighth amendment continues to exert a chilling effect on doctors. Difficult decisions that should be made by women and their doctors, a couple or the next-of-kin where there is no capacity, and on the basis of best clinical practice, are now often made on foot of legal advice. That is not how it should be and is not how it used to be.”
The news cycle picked it up quickly. The Taoiseach was quick to reproach the comments and insisted they were made in personal capacity. I had a feeling something was about to crawl out of the woodwork. Something was rotten in the state of Denmark.
On December 17th, mere hours after Varadkar’s comments, the story broke. A brain dead woman was being kept alive for the purposes of the unborn foetus inside her which still, somehow, had a heartbeat. Medical decisions were perverted by a fear of unclear, restrictive laws.
I received a sudden, furious text that summed it up perfectly.
“There’s a dead woman being kept alive because she was pregnant. You are an incubator.”
The sender was right. Ireland’s laws treat women as incubators and little else. Quite literally, this woman was referred to as a ‘cadaveric incubator’ in one particular news article.
The woman’s father became the plaintiff in the High Court case that followed. The woman’s fading corpse was assigned a lawyer. The unborn foetus was also allowed legal representation, as was the Health Service Executive.
The doctors who gave evidence felt it was not practical to sustain the mother for up to 32 weeks, maximising the chance of the child being viable. The HSE felt similarly. The father’s position was clear; he wanted his daughted to be laid to rest with whatever dignity remained for her. The term “experimental medicine” was used more than once.
The High Court delivered their judgment on St Stephen’s Day: they gave the order that life support could be withdrawn. But the judgment turns on the best interests of the foetus- not the mother. The foetus was largely deemed to be unviable and efforts to maintain the situation to attempt delivery were acknowledged as ‘futile’.
This does not mean that the Court discounts or disregards the mother’s right to retain in death her dignity with receive proper respect for her autonomy with due regard to the grief and sorrow of her loved ones and their wishes. Such an approach has been the hallmark of civilised societies from the dawn of time. It is a deeply ingrained part of our humanity and may be seen as necessary both for those who have died and also for the sake of those who remain living and who must go on. The Court therefore is unimpressed with any suggestion that considerations of the dignity of the mother are not engaged once she has passed away.
So, it is the hallmark of civilised societies that the dead be allowed to retain dignity with proper respect for autonomy and the need to mourn. But. But. But. There is always a but.
You’ll remember my first question: how is it that Ireland’s doctors find themselves using a dead woman as an incubator, in the vague, unqualified, unscientific hope that a child may be born eventually of the experiment? How is it that this could be, not just legal, but possibly Constitutionally protected?
Here, from the court judgment in PP v HSE, is the answer.
However, when the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living.
There are questions to be answered after this judgment. A ‘best interests’ test for an unborn foetus appears to have cropped up from nowhere and the court focused much more on the foetus than the dignity of the deceased. The scope of the 8th Amendment appears to have broadened- focusing on all unborn life, and no longer just focusing on deliberate termination. The outcome is a good one for a family in grief- but the long term consequences have yet to be seen.
One thing is certain: if something like this happens again, we will still find ourselves in a Court, because degrees of viability have not been discussed; extreme foetal damage has not been discussed: this judgment was provided because the chance of foetal survival was simply negligible. That may not be the case next time.
In the judgment, the brain death is referred to as an “Act of God”- an unanswerable, unpreventable tragedy. If the brain death was an Act of God, then surely the fate of the foetus is also?
The idea that ‘God’ is invoked at all when considering Constitutional law is bizarre to me. God belongs in the heart and soul- but not in the Constitution.
Life is about love and compassion and fear and achievement and struggle and strife and celebration. It is defined by its quality. When did “Life at all costs” become the goal?
The Archbishop of Dublin, Diarmuid Martin, has said that there is no obligation to use extraordinary means to maintain a life. It’s not that I think unborn foetuses are worthless- far from it. I disagree with experiments on women, and their babies. ‘Life at all costs’ to me sounds torturous and futile; empty.
We talk about being humane- of putting pets down when they become too old, too ill, too frail. We talk about the bravery of people who face terminal illness and condemn hooligans who would desecrate graves. But a desecrated woman, in Ireland, appears to be less cause for concern.
Every time the topic is brought up for discussion in parliament, politicians insist on framing the debate in the context of female relations. What if it was your daughter, they ask? Your sister, your grandmother, your wife? Lovely sentiment, but the reality is that just about every political party in the state has had the chance to change this and they have universally refused to step up to the plate. They clearly have not thought of their own sisters, wives and mothers.
Nowadays it’s popular to talk about legislating further for abortion in Ireland. The suggestion is that the ban on abortion should be lifted in cases of fatal foetal abnormality, rape and incest. At least the first of those can be proven quickly and some suffering at least might be spared.
But rape, incest? The 2013 Act requires groups of people to examine a woman to decide if she is suicidal. What horror would await a woman who says she was raped? What level of proof and examination would have to occur to secure justice for her? Would it require a conviction for her rapist before she would be believed? Politicians talk about this idea as though it’s a goldmine of sense, but few of them have thought it through enough. It is a nonsense proposal as long as the 8th Amendment exists and as long as the 2013 Act is a precedent piece of legislation for abortion.
4000 women travel from Ireland to the United Kingdom each year to get an abortion. We like to close one eye and pretend that doesn’t happen, but it does. It is punitive and it is damaging- and it has to stop now. It institutionalises the shaming and degradation of women- an area in which Ireland is already a qualified expert. That should be the shame.
It’s funny- years of legal training, human rights work and journalism gave me a wide scope of investigation on this topic. I gave it years of thought, but my eventual decision on abortion rights came about because of my own parents. Lots of people are parents. A smaller portion are Moms and Dads, people who sacrifice and provide and love unconditionally. Mine are that and more- but not everyone has that capacity. Having a child remains a really big deal- and it’s a really big deal women should have a choice in.
I haven’t gotten a chance to vote in a plebiscite or a referendum on abortion. Three decades have passed and it is abundantly clear that the 8th Amendment to the Constitution has caused merciless, ruthless, unbearable pain for thousands of women, thousands of families.
Let the people decide if we should #repealthe8th.
Roe v Wade
McGee v Attorney General  IESC 2
Attorney General v X  1 IR 1
PP v HSE
A,B and C v Ireland ECHR 25579/05
Abortion Stats- Irish Family Planning Association
Annual Report of the Courts Service 2013- Page 28, Sexual Assault
Debate on 34th Amendment Bill- Varadkar’s Comments in December 2014