Please expand any of the links below to read the full publication.

 

Irish Council of Civil Liberties and Midwives for Choice opinion on the case of Geraldine Williams

The 8th Amendment not only affects those who need a termination, but also those who continue their pregnancy.

The HSE’s National Maternity Strategy states that while ordinarily a woman has the right to refuse medical treatment, ‘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’.

In September 2016, the HSE applied for a court order allowing it to use “reasonable and proportionate force [or] restraint” to perform surgery on Geraldine Williams, who was 40 weeks pregnant.

Ms Williams had previously given birth by Caesarean section to three children and wished to have her fourth child by natural birth. The HSE argued its case based on the unborn’s right to life under the 8th Amendment, saying that complications could arise during a natural birth.

During the court case, Ms Williams was not present, as she was in hospital, and the foetus was given separate legal representation.

The judge found in favour of Ms. Williams’ right to make the decision to refuse a Caesarean section, stating that the increased risk inherent in a natural delivery did not justify “effectively authorising her to have her uterus opened against her will, something which would constitute a grievous assault if done on a woman who was not pregnant”. Ms Williams went on to have a Caesarean section as a fully consenting adult.

Liam Herrick, director of ICCL said:

“The judge in this particular case decided that the risk to the unborn did not warrant the invasiveness of this procedure against Ms. Williams’ will. However, another judge could have decided differently. The 8th Amendment leaves open that possibility.  Ireland has a cruel history of denying women and girls the right to informed consent during pregnancy, as we know from women who suffered non-consensual symphysiotomies. It’s time for us to remove the last vestige of that culture of coercion: the 8th Amendment”.

Ms Williams’ case is illustrative of the fact that, on becoming pregnant in Ireland, women no longer have the same decision-making power over their own bodies. Indeed, the threat of being brought to court is often enough to convince women to submit to medical procedures they do not actively want.

Philomena Canning, Chairperson of Midwives for Choice says:

“Geraldine’s case is unusual in that she was not threatened with court, she was actually brought to court. In a paternalistic maternity care culture, rooted in a model of blanket medical policy that fails to respect the right to informed consent, more usually women who do not consent to routine procedures and interventions are threatened with a High Court order. This approach in and of itself tends to ensure the compliance of vulnerable women at full term pregnancy or who are actively labouring.”

According to several studies, pregnant women in Ireland are frequently denied the option of refusing tests and invasive procedures during labour.

Ms. Canning says:

“For the wider context, we can look to the survey involving some 3,000 women by AIMS Ireland in 2014-2015. Half of the women surveyed had been denied the opportunity to decline a treatment or atest of procedure during pregnancy (49%). There are similar statistics during labour and birth (50%).”

ICCL is calling for a yes vote to protect consent during pregnancy and birth.

 

 

Submission to the United Nations Committee Against Torture (CAT) for Ireland’s Second Periodic Examination, 24 July – 11 August 2017

Download the PDF here: MFC Submission to UNCAT

Submission to the United Nations Committee Against Torture (CAT) for Ireland’s Second Periodic Examination under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 61st Session of CAT, 24 July – 11 August 2017

 

 

 

Briefing for TDs and Senators: A new perspective on the 8th Amendment, 23 November 2017

a) Presentation by Midwives for Choice Link
b) Presentation by AIMS Ireland Link
c) Presentation by Ruadhán Mac Aodháin, Solicitor at MacGeehin Toale Link

 

 

 

Submission to the Joint Oireachtas Committee on the 8th Amendment, 29 November 2017

Download submission to the Joint Oireachtas Committee on the 8th Amendment Link

Submission to the Committee on the 8th Amendment of the Constitution (Joint)

29 November 2017

Following a briefing for members of the Oireachtas on Thursday 23rd November 2017 on the effect of the 8th Amendment on the rights of women during pregnancy, labour and birth, it was proposed that Midwives for Choice should consider making a brief submission to the Committee on the 8th Amendment as they had brought a new perspective to the debate. The briefing was given by Philomena Canning, Chairperson of Midwives for Choice, which represents midwives who care for women during pregnancy, labour and after birth; Dr Krysia Lynch, Chairperson of the Association for the Improvement of the Maternity Services in Ireland, which represents the users of these services; and Ruadhán Mac Aodháin, solicitor with MacGeehin Toale Solrs, who has acted in a number of childbirth cases in Ireland.

Joint submission from Midwives for Choice and the Association for the Improvement of the Maternity Services:

Pregnant women are virtually the only group of adults in Ireland whose rights to autonomy and self- determination are routinely undermined in healthcare settings. In March 2017, a report from the Council of Europe noted the use of the 8th Amendment ‘to force women to comply with medical decision-making about their care and treatment [in childbirth] with which they do not agree’. Also in March, the UN Women’s Committee (CEDAW) called for Ireland’s system of maternity care to be abandoned because of its failure to meet international human rights standards. The UN Committee Against Torture expressed similar concerns last July.

The system of care these human rights bodies were referring to is known as ‘active management’. Under this system, women’s labour is managed to ensure they give birth within eight hours. The medical protocols laid down for accelerating labour are invasive: (i) rupturing the waters surrounding the baby in the womb; and (ii) putting a woman on an intravenous drip containing a synthetic hormone that intensifies and accelerates labour. Not every woman wants these procedures, but the system assumes consent.

Around 100,000 women are affected by the 8th Amendment every year. Research carried out by the Association for the Improvement of the Maternity Services in Ireland shows that women’s fundamental rights are being routinely denied. In its latest survey, as many as 38 per cent of respondents stated that their consent was not sought for tests and procedures carried out during pregnancy. One woman in every three reported that they had been subjected to tests and procedures during labour and birth without consent. Half of those who responded reported that they were given no opportunity to refuse such diagnostics or interventions during pregnancy, labour or birth. Almost 3,000 women took part in this 2016 survey.

Underpinning an obstetric culture that is slow to respect women’s human rights is the 8th Amendment. The HSE’s National Consent Policy contributes to a climate of fear and a culture of coercion. For example, hospital staff seeking to ensure pregnant women comply with medical induction policies routinely inform them that if they do not present for induction as scheduled, the Gardaí will be called to bring them to hospital. Threats such as these give rise to anxiety and fear at a time when women are at their most vulnerable. In the longer term, the experience of involuntary medical intervention may damage women’s mental health, undermining their self-esteem, and putting them at risk of anxiety, depression, birth trauma, and post-traumatic stress disorder.

The influence of the 8th Amendment can be seen in the National Consent Policy, which states: ‘there is significant legal uncertainty regarding the extent of a pregnant woman’s right to refuse treatment in circumstances in which the refusal would put the life of a viable foetus at serious risk. In such circumstances, legal advice should be sought’. This effectively gives health care professionals carte blanche to apply to the High Court. So, if a woman chooses to decline a drug, such as Syntocinon – the drug used to accelerate labour which has been implicated in cases of fetal death and brain damage – she may be threatened with legal action in the height of labour. The National Maternity Strategy reinforces the HSE’s coercive message by underlining the need to seek legal advice in cases ‘where there are implications for the health or life of the baby, as defined by her team of health care professionals (emphasis added)’.

With more and more women giving birth in fewer and fewer hospitals, labour ward beds are already at a premium, and, with further closures of maternity units planned, centralisation is set to increase. The greater the pressure to ensure a high turnover of beds, the more remote the possibility that women’s fundamental rights will be respected. Repealing the 8th Amendment in full is essential if Ireland is to develop a system of maternity care that meets international human rights standards.

Submission from Ruadhán Mac Aodháin, solicitor, MacGeehin Toale Solrs:

Uniquely, the Irish Constitution affirms equal rights for the mother and her unborn child. There has been little analysis of the impact of the 8th Amendment on women’s constitutional rights, however.

In September 2016, the HSE was refused the orders it sought to compel a woman to undergo a Caesarean section against her wishes. The High Court rejected that argument that the mother lacked capacity and affirmed that, while the Court believed the mother was taking an unnecessary risk, she had the right to make such a decision. The Court also found that this was not a case of such an exceptional nature as to warrant the type of intervention sought by the HSE, and that the rights of the unborn child should not be seen as greater than those of its mother.

A significant proportion of medical negligence claims in Ireland include allegations of failures to obtain valid consent. However, the circumstances in which the rights of the fetus warrant intervention against the wishes of the mother continue to be unclear, and this uncertainty is problematic. Jurisprudence from other countries has had little influence in Ireland in birth related cases on account of the 8th Amendment.

Before its introduction, there was some recognition of the right to be born. If the 8th Amendment is repealed, the courts are likely to look to jurisprudence from other jurisdictions and to recognise the rights of the unborn child to some degree. Fetal rights are recognised in countries where the fetus does not have constitutional rights, such as England. However, national guidelines on consent there differ significantly from those in force here, in that they recognise the right of an adult with capacity to refuse medical intervention.

There are no adequate procedures in place to deal with attempts to override women’s consent in maternity care. Measure which would strengthen women’s human rights in this area are: improving the HSE guidelines on consent, establishing grievance procedures to deal with failures to obtain informed consent, education to inform and empower women about their rights, procedures to deal with emergencies, and specific legislation recognising women’s fundamental rights in childbirth.

Philomena Canning Chairperson

 

 

Letter to Frances Fitzgerald requesting mandatory Maternity Death Inquests,18 May 2017

Download the PDF here: letter-to-frances-fitzgerald

TO: Frances Fitzgerald, Minister for Justice, Tánaiste’s Office, Department of Justice and Equality, 51 St Stephens Green, Dublin 2

From: Midwives for Choice

By Email: minister@justice.ie

Date: 18 May 2017

Dear Minister,

We write to express our concerns about the government blocking the bill brought by Clare Daly, Independent TD, to guarantee a coroner’s inquest into all unexpected maternal deaths.

Every maternal death is a devastating tragedy with life-long consequences for the families involved. Inquests are critical as they are the only public process for the families of women who die unexpectedly before, during or after childbirth, to fully understand how and why the death happened. Compounding their loss, bereaved families of women who have died in maternity hospitals have had to battle over intolerable lengthy periods to be granted an inquest and some have never succeeded. Consequently, they have been campaigning for this legislation for several years.

Article 2 of the European Convention on Human Rights guarantees the right to life. The right to life imposes an obligation on public authorities to independently investigate the unexpected death of a woman before, during or after childbirth where the hospital may be implicated. Internal investigations by the HSE are no substitute for a coroner’s inquest in open court. While maternal deaths are followed up by internal review in line with hospital and HSE mechanisms, the reports of these internal reviews are not made publicly available as standard practice. Furthermore, the HSE has been shown to resist a genuine policy of open disclosure, its threat to take HIQA to court over its report into the deaths of babies at Portlaoise hospital being just one example.

Identifying contributing mistakes to be acted upon so that the safety of maternity services can be secured is a crucial element of the inquest process. You will be well aware that recommendations are made by the jury or by the coroner following each inquest about how to prevent similar deaths in the future.

Approximately eight women die each year in our maternity services, and the cost of mandatory maternal death inquests is approximately €160,000 annually. This is a truly minimal sum per year for the crucial work of a public inquest when a woman dies in our maternity services.

The provision for mandatory inquest into each maternal death fulfils the right to life. Independent investigation by way of a coroner’s inquest is also critical for providing a reliable instrument for families and the public to get to the core of what happened and to ensure that lessons are learned so that clinical and care practices are improved.

We understand you have advised that a separate measure putting inquests into maternal deaths on a mandatory footing will be included in a civil law bill to be published before the summer recess. We are concerned to know that this will be done and would be glad if you would confirm whether the government had started the process of preparing this measure to be achieved on time.

We look forward to your urgent response to our concerns.

 

 

New maternity hospital will be Europe's biggest birth factory, Irish Times, 12 May 2017

Midwives for Choice chairperson, Philomena Canning, is published in the Irish Times, May 12th 2017

“New maternity hospital will be Europe’s biggest birth factory: Industrialised and interventionist childbirth facilities fly in face of women’s human rights”

See our original submission here

 

 

Blog for International Day of the Midwife, 05 May 2017

Download the PDF here: Blog for IDM

View the accompanying article in the Irish Times

Blog for International Day of the Midwife

On this International Day of the Midwife we ask: why has the midwifery model of care for healthy women in childbirth been outlawed by the National Maternity Strategy?

At the heart of midwifery is the mother–midwife partnership – the theme of today’s International Day of the Midwife – based on a trusting relationship developed over time through continuity of care.

Instead of advocating freestanding birth centres managed and run by midwives as an option, the Strategy sets out a medicalised “model” of community care and hospital care that is a recipe for fragmentation (and medical fees). The woman will be seen by a multi-disciplinary team, getting her from a range of alternating providers, from midwives to GP to public health nurse, while under the care (i.e. supervision) of a consultant obstetrician which she will not need if she is healthy. This is 1950s style care, unchanged from the Mother and Child scheme, dressed up in today’s language. Unlike freestanding birth centres, this approach offers no continuity of care or care, although research shows this is what women want.

Earlier this year, the UN Women’s Committee, CEDAW, echoed by the Human Rights Commissioner of the Council of Europe, drew Ireland’s attention to the need to bring maternity services into line with international human rights standards. Swiss human rights expert Ms Patricia Schultz told the government that its highly centralised system of maternity care “transformed the most important experience of a lifetime for women and their partners into a production-line process”. The resources the government plans to put into maternity care should reflect the commitment, she said, to respect the rhythm of each individual birth.

The Strategy, regrettably, enshrines this centralisation and, by extension, the production line process it has given rise to. This is a system of care known as the “active management” of women in labour. It was designed in the 1960s at the National Maternity Hospital at a time when the hospital was severely overcrowded, just as it is today. Its effect was to maximise throughput in the labour ward. Active management involves the use of highly invasive procedures, such as rupturing the waters surrounding the baby in the womb to induce or accelerate labour. The effect of rupturing the waters is intensified by administering an intravenous infusion of oxytocin, a synthetic hormone. Oxytocin causes the womb to contract more frequently and severely than nature intended, heightening the woman’s pain. No provision is made in the manual on active management for women to refuse these procedures: this is a system that is premised on involuntary medical intervention. Judged by internationally accepted human rights standards, it is not fit for purpose in 2017.

This is a perspective that turns the controversy about the €300 million new National Maternity Hospital (NMH) on its head. The claim made by the NMH master Rhona Mahony about the “unarguable” need for what is to be the biggest maternity hospital in Europe rests on the assumption that centralisation is best. But if centralisation leads to industrialisation and industrialisation leads to the denial of women’s human rights in the labour ward, then the last thing women (and midwives) need is a shiny, new birth factory. There is an appropriate solution to overcrowding that is consistent with scientific evidence and with the demands of women as service users, one that would cost a fraction of €300 million.

Birth centres are a half-way house between home and hospital that provide a relaxed informal atmosphere in a homely non-clinical environment. Run and managed by midwives who provide continuous care to healthy women from the outset of pregnancy through to 6 weeks postnatal, they are common in countries who, unlike the National Maternity Strategy, recognize the scientific evidence in their favour.

For low-risk healthy women, the evidence shows no difference in the perinatal outcomes for their babies, including those having their first baby, in birth centres compared to obstetric units. While the odds of having Caesarean or instrumental birth, or surgical incision of the birth canal (episiotomy) are significantly and substantially reduced for women in birth centres compared to obstetric units, increased levels of satisfaction for women and increased job satisfaction for midwives are also associated with birth centres. In comparison to midwifery-based care in the home and integrated midwifery-led units (MLUs), the probability of transfer to an obstetric unit during labour or immediately after birth is reduced in birth centres, a finding consistent for both first-time mothers and those having their second or subsequent baby. And in relation to costs, while planned births in all non-obstetric settings lead to significant cost savings, freestanding birth centres generate greater cost savings compared to integrated MLUs.[1]

As a solution to over-crowding, there can be no doubt that freestanding birth centres are the answer. Using the internationally recognised NICE guideline criteria for ‘low risk’ healthy women[2], a randomised controlled trial[3] involving the population of women registering for maternity care at Our Lady of Lourdes Hospital Drogheda and Cavan General Hospital, in 2005, found that 43 per cent were eligible for midwifery-led care. Of those, 54 per cent opted to join the study offering the chance of midwifery-led care in a unique, home-from-home, integrated MLU. Those findings were recently reflected in a survey of women’s experiences of maternity care conducted in 2014 by AIMS Ireland.[4] Among 2,836 women, 58.5 per cent said they would opt for a freestanding birth centre if the service were available. This evidence shows that of the 9,186 women who gave birth in NMH in 2015, some 2,132 (23%) were eligible for, and would most likely have opted for, birth centre care had it been available.

This compelling evidence on safety and cost-effectiveness of birth centres under midwifery-based care begs the significant question as to how the National Maternity Strategy could come into effect without providing for this key option of care for which there is established demand by women. What it enshrines points to the politics of power and money over health benefits: in essence, a safe-guarding of medical incomes. The unfettered influence and control of consultant obstetricians on maternity care policy in Ireland fundamentally obstructs the development of midwifery and choice in childbirth, and is a crystal clear strategy in safeguarding the obstetric monopoly of the lucrative Irish maternity care market.

We call on the Minister for Health to have regard to his obligations under international treaties to uphold the human rights of women and girls in maternity care in everything he does. The more maternity services are centralised into larger hospitals, the greater the need for uniformity and predictability in birth to avert a labour ward bottle-neck, and the more remote the possibility that women can give birth at their own pace. If women’s rights to bodily integrity, self-determination and autonomy were respected in labour and birth, the centralised, medicalised production of babies would be unsustainable.

Investing €300 million in a huge new 10,000 births per annum maternity hospital providing extensive facilities for private medical practice in the absence of any investment in infrastructure at community level to develop midwifery-based care flies in the face of women’s human rights in childbirth.

[1] Hollowell J, Puddicombe D, Rowe R, et al (2011) ‘The Birthplace national prospective cohort study: perinatal and maternal outcomes by planned place of birth’. Birthplace in England research programme; Final report, Part 4. NIHR Service Delivery and Organisation programme

[2] National Institute for Health and Care Excellence (NICE) (2014) ‘Intrapartum care for healthy women and babies’. CG 190: https://www.nice.org.uk/guidance/cg190/resources/intrapartum-care-for-healthy-women-and-babies-35109866447557

[3] https://nursing-midwifery.tcd.ie/assets/publications/pdf/midu-report.pdf

[4] The Association for Improvements in the Maternity Services in Ireland (AIMS Ireland) March 2014. What Matters To You Survey 2014: http://aimsireland.ie/what-matters-to-you-survey-2015/

 

Request to Joint Oireachtas Committee on Justice and Equality, 22nd March 2017

 

Request to Joint Oireachtas Committee on Justice and Equality, 22/03/2017

Download PDF here: request-to-joc-on-justice-and-equality-22-03-2017

Midwives for Choice is committed to promoting care for women in birth that respects their human rights. We are getting in touch to ask for the opportunity to submit a request to the Joint Oireachtas Committee on Justice at its next meeting.

Ireland’s maternity care system is currently under stress. Recent years have seen an increase in the number of maternal deaths, some linked to a system that tends to ignore women’s rights to bodily integrity, self-determination and autonomy. These issues came under the spotlight last week in Geneva during Ireland’s human rights examination by a UN Treaty Body, where the Irish system of care known as the “active management of women” in labour, which is based on non-consensual medical intervention, came in for criticism. Ms Patricia Schultz, an eminent Swiss lawyer, strongly advised Ireland to bring its maternity care system in line with internationally recognised human rights standards.

Midwives for Choice would like to highlight the current deficiencies in the system from a human rights perspective and propose some solutions, including administrative and legislative ones. If granted a hearing, we will be accompanied by human rights experts and others, so that the JOC can gain a full understanding of the justice issues involved and how they might be remedied.

 

Request to Oireachtas Joint Committee on Health and Children, February 2017

Request to Oireachtas Joint Committee on Health and Children

Briefing Note, February 2017

Download PDF here: request-to-joc-on-health-22-march-2017-1

  1. Midwives for Choice makes this contribution to the discussion by the Joint Committee on Health and Children about the National Maternity Strategy 2016 – 2026 (hereafter ‘the Strategy’).
  2. As a voluntary midwifery-led organisation, Midwives for Choice was founded in January 2016 as Ireland’s national campaign to promote and uphold the rights of all women[1] and girls to be safe and healthy before, during and after childbirth. In the absence of State funding, our members, comprising just over 50 women and midwives to date, give their time freely to ensure that women and girls can access respectful maternity care appropriate to their needs.
  3. Ireland’s membership of the United Nations obliges international human rights laws to be upheld in order to ensure that all people are afforded the minimum protection of human rights. The right of every woman to the highest attainable standard of health, which includes the right to dignified, respectful healthcare throughout pregnancy and childbirth,[2] is upheld by the provision of appropriate services in connection with pregnancy, birth and the postnatal period.[3] Midwives for Choice contends that the Strategy fails in its duty to protect and guarantee the rights of women to appropriate maternity care. Accordingly, we assert that it must be revised in order to respect and protect women’s lives, health and choices in maternity care, and to ensure the best possible start in life for the newborn baby.
  4. The Strategy acknowledges that the majority of women who avail of maternity services are healthy and well, and asserts that its model of care supports the normal physiological process of childbirth.[4] We believe this assertion is without foundation.
  5. The Strategy’s multidisciplinary model of care compels healthy women to place themselves under specialist, obstetric supervision. Midwives are specialists in normal birth, a subject not on the obstetric curriculum. Evidence shows that healthy women do not need curative medical services when they are pregnant: they need midwifery-based care as close to home as possible.
  6. The Strategy makes provision for maternity care shared by service providers from four distinct disciplines, namely, obstetrics, General Practice, Public Health Nursing, and midwifery. This ‘slicing of the cake’ approach is not in the interests of the health and welfare of the mother and baby. Evidence conclusively shows that better outcomes are achieved for healthy women by continuous midwifery care from conception to six weeks postnatal on a one-to-one basis or a small team-midwifery approach.[5]
  7. While the Strategy makes provision for Midwifery-Led Units (MLUs) located along-side obstetric units, it excludes midwifery-managed Birth Centres in the community on grounds that it is necessary to monitor and evaluate the implementation of MLUs in the Irish context.[6] This is a misleading claim: the safety and cost-effectiveness of Ireland’s two MLUs that remain in operation since 2004 have been established by randomized controlled trial.[7] Moreover, the Strategy omits reference to the added benefits associated with Birth Centres of increased levels of satisfaction for women, increased job satisfaction for midwives, reduced probability of transfer to an obstetric unit during labour or immediately after birth, and greater cost savings compared to MLUs.[8] There is no justification for denying midwives the opportunity to manage and run Birth Centres to provide women with this optimum choice in childbirth.
  8. The Strategy claims a commitment to promoting breastfeeding and perinatal mental health but makes no concomitant provision for postnatal care and support. Its model of care sees women leaving hospital “within a few hours” of giving birth for postnatal care by the midwife “for the first few days at home”.[9] It refers to the value of the Public Health Nursing service in postnatal care but omits to clarify that midwifery is not a prerequisite for training in Public Health Nursing, or that the standard Public Health Nursing service comprises one postnatal home visit. This negligible standard of postnatal care that denies women the benefits of continuity of midwifery care through to 6 weeks postnatal has no hope of promoting breastfeeding, particularly for first-time mothers.
  9. In 2006, the Institute of Obstetricians and Gynaecologists reported that maternity provision in Ireland continues to be synonymous with the “active management of labour”.[10] Comprising amniotomy, which involves puncturing the membranes enclosing the protective waters surrounding the baby in the womb with an instrument resembling a crochet hook, and intravenous infusion of synthetic oxytocin, “active management” is based on involuntary medical intervention to accelerate labour, thereby ensuring a high turnover of beds in the labour ward. While exposure to synthetic oxytocin increases the risk of postnatal depression by 32 per cent in women with no previous history,[11] the Strategy is silent on active management.
  10. UN experts have called for the “active management” of women in labour to be abandoned. The call came during Ireland’s human rights examination in Geneva by CEDAW last week. Referring to the “economic rationalism” of the Irish system, Swiss human rights expert Ms Patricia Schultz underlined the objective, which is to have “three births per 24 hours for every bed in the labour ward”. This, she told the government, “transformed the most important experience of a lifetime for women and their partners into a production-line process”. She told the government that the UN body was concerned that the issue of consent was not addressed by active management in a way that is in line with international standards. The resources the government plans to put into the health system should be sufficient, she said, to respect the rhythm of each individual birth, and for the development of midwifery at primary health care level. “Will you retrain medical personnel to use this new approach to birth?” she asked. Ms Schultz also called for the interventions used routinely to accelerate labour to be abandoned, along with the use of “blanket” consent forms.
  11. CEDAW’s intervention strikes at the doubts cast by the Eighth Amendment, affirmed by the National Consent Policy and the Strategy, on women’s rights during pregnancy to self-determination and bodily integrity. The discrimination against pregnant women as the only group of mental capacity whose rights are systematically undermined in the institutional health care setting has given rise to legal action taken by women for breaches of their fundamental rights. Such cases have centred on enforced Caesarean section (Mother B v HSE); non-consensual rupturing of the waters surrounding the baby in the womb (Hamilton v HSE); and blanket policy on home birth denying individualised assessment (Teehan v HSE). It should not be left to individual pregnant women to vindicate their rights in the courts in this way.
  12. The failure of the Strategy to make provision for appropriate evidence-based care in pregnancy, birth and postnatally for healthy women constitutes an on-going violation of their fundamental human rights. The failure represents a gender-specific and discriminatory form of torture, cruel, inhuman or degrading treatment, breaching women’s basic human rights to
  • their right to mental and physical health
  • bodily integrity, autonomy, and self-determination during pregnancy, birth and postnatally, in maternity care settings;
  • privacy and family life;
  • freedom to make informed health care decisions
  • freedom from discrimination;
  • freedom from gender-based violence in maternity care settings

 

  1. Midwives for Choice welcomes CEDAW’s emphasis on the need to individualise care in birth. We strongly support Ms Schultz’s call for the abandonment of the “active management” of women in labour. Her criticism of this authoritarian system from a human rights perspective is timely, as is her emphasis on the need to develop community based midwifery services in birth. We would like to highlight the current deficiencies in the system from a quality of care and human rights perspective and to propose solutions to current pressing problems. If granted a hearing, we will be accompanied by maternity care experts and others, so that the JOC can gain a full understanding of the health care issues involved and how they might be remedied.

[1] While we use ‘woman’ throughout this submission, we recognise that not everyone who is pregnant is a woman

[2] World Health Organization, WHO Statement: The prevention and elimination of disrespect and abuse during facility-based childbirth (Geneva: WHO, 2014).

[3] See Article 12 of the UN Convention on the Elimination of Discrimination Against Women

[4] Department of Health (2016) ‘Creating a Better Future Together: National Maternity Strategy 2016-2026; Executive Summary, pg.82; Available at: http://health.gov.ie/wp-content/uploads/2016/01/Final-version-27.01.16.pdf

[5] Sandall J, Soltani H, Gates S, Shennan A, Devane D. Midwife-led continuity models versus other models of care for childbearing women. Cochrane Database of Systematic Reviews 2016, Issue 4. Art. No.: CD004667. DOI: 10.1002/14651858.CD004667.pub5

[6] Ibid, pg.93

[7] Begley et al. (2009). An evaluation of midwifery-led care: the report of the MidU study. Health Service Executive. Available at: https://nursing-midwifery.tcd.ie/assets/publications/pdf/midu-report.pdf

[8] Hollowell J, Puddicombe D, Rowe R, et al (2011) ‘The Birthplace national prospective cohort study: perinatal and maternal outcomes by planned place of birth’. Birthplace in England research programme; Final report, Part 4. NIHR Service Delivery and Organisation programme.

[9] Department of Health (2016) ‘Creating a Better Future Together: National Maternity Strategy 2016-2026; Executive Summary, pg.82; Available at: http://health.gov.ie/wp-content/uploads/2016/01/Final-version-27.01.16.pdf

[10] Institute of Obstetricians and Gynaecoogists, 2006. The Future of Maternity and Gynaecology Services in Ireland 2006-2016, Report from Institute Sub-Group, Dublin: Institute of Obstetricians and Gynaecologists

[11] Kroll-Desrosiers AR, Nephew BC, Babb JA, Guilarte-Walker Y, Moore Simas TA, and Deligiannidis KM. Association of peripartum synthetic oxytocin administration and depressive and anxiety disorders within the first postpartum year. Depress Anxiety, 2017;34:137–146. doi:10.1002/da.22599

 

Briefing Note for CEDAW

Download the PDF here: Briefing Statement for CEDAW

 

Briefing Statement for the UN Committee on the Elimination of All Forms of Discrimination Against Women

for

Ireland’s examination by the Treaty Body on 15 February 2017

 

Ireland has built up a system of maternity care premised on involuntary medical intervention. Women in labour are given a limited amount of time in which to have their baby in a system enforcing turnover of three births per labour ward bed in the 24-hour period. Since nature cannot be expected to oblige such a regime, medical intervention is required to achieve it.

Uniformity and predictability in birth involves highly invasive procedures such as rupturing the water surrounding the baby in the womb with an instrument resembling a crochet hook. This procedure induces or accelerates labour. The effect of rupturing the waters is intensified by administering an intravenous infusion containing oxytocin, a synthetic hormone. Oxytocin causes the womb to contract more frequently and severely than nature intended, thereby heightening the woman’s pain. This system of intervention, known as “active management” of women in labour, was developed in Dublin in the 1960s and subsequently exported the world over.

Active management is based on the doctrine of assumed consent. Blanket “consent” forms are still in common use today in Ireland’s maternity care. The graph used to plot women’s progress in labour against the clock makes provision for labour lasting no longer than 8 hours. Staffing is structured on the basis of this high turnover in the labour ward, with midwives being rostered accordingly.

The active management of women in labour underpins the structure and functioning of maternity care in Ireland. In turn, the structure and functioning of maternity care depends on active management. No provision is made in the manual on active management for women to refuse these interventions. If women’s rights to bodily integrity, self-determination and autonomy were respected in labour and birth, the entire system of centralised birth would soon collapse.

A further aspect of the organisation of maternity care in recent years has been the systematic closure of smaller maternity units. In 1975, there were 105 facilities in the country where women could give birth; today there are 19. Almost all women (99.2%) give birth in hospital under obstetric-led care. The more maternity services are centralised into larger units, the greater the need for through-put to avert a labour ward bottle-neck, and the more remote the possibility that informed consent is offered to the individual woman by hospital staff. Further centralisation is planned in Ireland in the coming years.

Non-consensual intervention is long recognised as a problem that is part and parcel of the industrialisation of childbirth. A national study commissioned by the Department of Health in the 1980s showed conclusively that non-consensual medical intervention was a significant problem in the labour ward. Women used the language of rape in recounting their experience of enforced medical intervention, such as breaking their waters. More recently, the Association of Maternity Services Ireland has shown that the system is still failing to respect women’s fundamental rights in labour. In the most recent survey conducted by the association, 50 per cent of women reported being denied the opportunity to refuse a test, procedure or treatment during labour. Similar figures have recently been published by the French Observatory on obstetric violence.

The introduction of Article 40.3.3 of the Irish Constitution (the Eighth Amendment) in 1983 intensified non-consensual medical intervention in childbirth which by then had become routine under active management. The influence of the Eighth Amendment can be seen in two ways. Firstly, the Health Service Executive (HSE) National Consent Policy, and the National Maternity Strategy 2016-2026, both cast doubts on women’s rights during pregnancy to self-determination and bodily integrity. As such, pregnant women are the only group of mental capacity whose rights are systematically undermined in the institutional health care setting. Secondly, legal action taken by women against the national health authority for breaches of their fundamental rights have included cases centred on enforced Caesarean section (Mother B v HSE); non-consensual rupturing of the waters surrounding the baby in the womb (Hamilton v HSE); and blanket policy on home birth denying individualised assessment (Teehan v HSE). It should not be left to individual pregnant women to vindicate their rights in the courts in this way.

Respect for women’s rights to dignity, autonomy and self-determination in childbirth requires repeal of the Eighth Amendment; the incorporation of respect for women’s rights by the National Consent Policy and the National Maternity Strategy; and national legislation enshrining the principle of women’s right to bodily integrity during pregnancy and childbirth must also be introduced.

 

Philomena Canning, Chairperson

Contact: mfc@midwivesforchoice.ie

 

Submission to CEDAW

Download the PDF here: Submission to CEDAW

 

Submission to the Committee on the Elimination of Discrimination Against Women (CEDAW) for its consideration in the context of examining Ireland’s sixth and seventh period reports on compliance with the Convention on the Elimination of Discrimination Against Women

 

January 2017

 

About Midwives for Choice

Midwives for Choice is a voluntary, midwifery-led organisation founded in January 2016 as Ireland’s national campaign to promote the human rights of women and girls in their sexual and reproductive lives.1 Our mission is to uphold the rights of all women and girls to be safe and healthy before, during and after childbirth. In the absence of State funding, our members, comprising just over 50 women and midwives to date, give their time freely so that women2 and girls can obtain care that is appropriate to their needs.

Introduction

Article 40.3.3 of the Irish Constitution (the Eighth Amendment) enshrines the equal right to life of the woman and foetus. In practice, however, this has meant that the foetus takes precedence. The impact of the Eighth Amendment, beyond restricting abortion rights, is substantial and far-reaching, affecting the fundamental human rights of every woman in pregnancy and childbirth, denying her rights to bodily autonomy and informed decision-making in relation to medical care and treatment that are recognised in every other aspect of her life.

Arguably, in voting for the Eighth Amendment in 1983, the people understood that they were voting about abortion only. However, the language of the Eighth Amendment itself, which refers to the ‘life’ of ‘the unborn’, has been interpreted to bring the duration of pregnancy, labour and birth within the Amendment’s reach, thereby directly impacting on the right to choice in childbirth of some 70,000 women giving birth in Ireland annually. As such, pregnant women are the only group of competent decision-making capacity excluded from the National Consent Policy of the Health Service Executive3, which stipulates:

“The consent of a pregnant woman is required for all health and social care interventions. However, because of the Constitutional provisions on the right to life of the “unborn” (Article 40.3.3 of the Constitution of Ireland 1937), there is significant legal uncertainty regarding the extent of a pregnant woman’s right to refuse treatment in circumstances in which the refusal would put the life of a viable foetus at serious risk. In such circumstances, legal advice should be sought as to whether an application to the High Court is necessary.”

The consequences of vesting legal powers in medical staff to act as guardians of foetal rights is the enforced compliance of women with the interventionist medical model of maternity care which misfits the needs of the healthy majority. Midwives for Choice is aware of the common practice by hospitals of invoking the Amendment – with threat of, or actual, court order – to force women to comply with medical decision-making about their care and treatment with which they do not agree.

1 www.midwivesforchoice.ie 2 While we use ‘woman’ throughout this submission, we recognise that not everyone who is pregnant is a woman 3 National Consent Advisory Group. National Consent Policy. Health Service Executive 2014 (Revised May 2016): http://www.hse.ie/eng/about/Who/qualityandpatientsafety/National_Consent_Policy/consenttrainerresource /trainerfiles/NationalConsentPolicyM2014.pdf

This means that pregnant women in Ireland are legally denied the abiding principle underpinning human rights in healthcare: that of informed decision-making and consent.

While the Eighth Amendment is by no means the only contributing factor to a culture where meaningful informed choice and human rights in pregnancy and childbirth are not properly observed, it is the single greatest obstacle to the realisation of this and hence to the attainment of the highest level of health that is the right of every pregnant woman for herself and her unborn baby.

Consent and Human Rights in Childbirth

Health depends on psychosocial and cultural factors as much as on medical indicators. Therefore, when we talk about preserving health in childbirth, we must recognise women’s human rights to:4

  • bodily integrity and freedom from inhuman and degrading treatment.5
  • private life.6
  • family life, including the right to parental autonomy.7
  • healthcare information.8
  • freedom from discrimination.9 Vindicating these rights10 means that women cannot be subjected to medical treatment withouttheir full, free and informed consent. It also means respecting competent pregnant women’s4 See further the White Ribbon Alliance Charter http://whiteribbonalliance.org/wp- content/uploads/2013/10/Final_RMC_Charter.pdf 5 V.K. v. Slovakia ECHR, November 8, 2011; N.B. v. Slovakia ECHR 12 June 2012; I.G v. M.K. and R.H. v. Slovakia [2012] ECHR 1910; R.R. v. Poland See furtherCenter for Reproductive Rights, Reproductive Rights Violations as Torture and Cruel, Inhuman, or Degrading Treatment or Punishment: A Critical Human Rights Analysis (2011).6 See e.g. Y.F. v. Turkey ECHR 22 July 2003, Juhnke v. Turkey ([2008] ECHR 379; Yilmaz v. Turkey ECHR 1 Feburary 2011, G.B. and R.B. v. Republic of Modlova ECHR18 December 2012 ; Csoma v. Romania ECHR 15 January 2013 and Konovalova v. Russia ECHR 8 March 2016 (lack of informed consent)7 Ternovsky v. Hungary ECHR 14 December 2010, the notion of a right to become a parent involves some measure of freedom as it its exercise; cf Dubska ECHR 15 November 2016. 8 See e.g. R. R. v. Poland [2011] ECHR 828 (delays in accessing ante-natal testing which would have enabled woman to make an informed decision about her pregnancy, and which exacerbated the plaintiff’s existing vulnerability), Tysiac v. Poland [2007] ECHR 212 (lack of adequate information), AS v. Hungary CEDAW/C/36/D/4/2004 (lack of adequate information)9 Alyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011)
[2011] ECHR 828.

Juan Méndez, UN Special

Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/HRC/22/53

(2013), 10-11 and

medical decisions, even where they conflict with medical advice. 11 Recently, in Montgomery v. Lanarkshire Health Board,12 the UK Supreme Court held that a woman ‘is entitled to take into account her own values, her own assessment of the comparative merits of’ a proposed course of action in childbirth. She is entitled to decide that it is acceptable to take certain risks with her health and that of her child, even if her doctor considers them unacceptable. In that judgment, Lady Hale writes; ‘Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being’. In Ireland, in part because of the Eighth Amendment, those days are very much with us.

The Eighth and the Law on Overruling Pregnant Women’s Choices.

When a pregnant woman in Ireland makes an informed refusal of treatment recommended by her medical team, and there are ‘implications for the life or health13 of the baby’, the National Maternity Strategy14 and the National Consent Policy state that, under the Eighth Amendment, legal advice should be sought. As a result of this policy, the High Court has been asked to intervene in several cases in which women have made medical decisions in late pregnancy which, their doctors argued, placed their foetus’ life or health at risk.15

The cases of PP v. HSE16 and Miss Y17 suggest that where the risk to an unborn child’s life approaches certainty, even in relatively early pregnancy, highly invasive treatment may be used to preserve that

10 Some countries, such as Argentina (2009), Venezuela (2007) and Mexico (2014), prohibit or even criminalise breaches of these rights, using new laws against ‘obstetric violence’. ‘Obstetric violence’ refers to abusive, dehumanizing or violent obstetric care. It can include unnecessary or non-consensual treatment; coercing treatment by over-emphasising maternal or foetal risk; silencing women’s dissent using social authority; lying to women in the course of childbirth in an effort to coerce treatment; forcing intervention in labour; enforcing control over a pregnant woman’s body including by use of restraints or sedation.

11 For example, in the UK the courts will not entertain an application to overrule a woman’s refusal of C-section unless her mental capacity is in issue. See e.g. St George’s Healthcare NHS Trust v. S [1998] 3 All ER 673; Re MB [1997] 38 BMLR 175 CA

12 [2015] UKSC 11 13 In

14 Creating a Better Future Together: National Maternity Strategy (Dublin, 2016) 78, referring to the National Consent Policy. 15 These judgments are unreported. They include

16 [2014] IEHC 622; the 8th did not require subjection of a woman’s body to somatic care after brain-death in order to preserve her pregnancy where the foetus could not be born alive. The court suggests that where the foetus is viable, more extensive treatment may be justified. 17 Ms. Y unsuccessfully sought life-saving abortion under the Protection of Life During Pregnancy Act, 2013. Ms. Y was pregnant and suicidal and, arguably, accordingly there was a risk to the foetus’ life. The Act contemplates that abortion may only be provided where it is the ‘only’ means of addressing the threat to the

IRM v Minister for Justice [2016] IEHC 478, Humphreys J. suggests that the unborn has a wide range of

constitutional rights, pre-dating the 8th Amendment and including the right to health. There is conflicting

authority at High Court level (see especially Ugbelese v. MJELR [2009] IEHC 598), and this judgment is under

appeal.

South Western Health Board v K and Anor [2002] I.E.H.C

104; Health Service Executive v F,

(High Court, ex tempore, Birmingham J., November 20, 2010. See also

Mother A v. Waterford Regional Hospital, Hedigan J., March 11 2013 in which Hedigan J. was not required to

make an order because the woman decided to have a C-section.

life. The Supreme Court has held18 that the Eighth Amendment means that, in these cases, none of the mother’s constitutional rights or interests, besides her own right to life, can be weighed in the balance in assessing whether invasive treatment is justified.

The position is less clear, but potentially equally troubling, where the risk to the child’s life or health is less certain. In HSE v. B19 the High Court recently outlined the applicable legal principles:

  • Autonomy: A pregnant woman is exercising her constitutionally-protected parental autonomy when she makes a medical decision which may affect the health or life of her unborn child. As such, the state can only intervene to protect the child in exceptional circumstances. A remote risk to the unborn baby’s life or health will not justify intervention.
  • Proportionality: The court will take account of the type of intervention required to reduce or remove the risk to the child’s life or health, and weigh it against the likely effect on the woman. In HSE v. B, the HSE sought an order compelling Ms. B to undergo a C-section, and allowing them to use ‘reasonable or proportionate force and/or restraint’ to ensure that she could not refuse. Subjecting a woman to invasive surgery is a serious infringement of her human rights. The court noted that the Eighth Amendment only requires the state “as far as practicable” to defend the right to life of the unborn. In HSE v B, the court found that a C- section was a disproportionate intervention given that the risk to the baby in this case was very low. It was therefore an impracticable step.

HSE v. B makes clear that women cannot be compelled to accept medical treatment in their unborn child’s interest where (i) the risks to the baby from refusal are low and (ii) the proposed treatment is very invasive. However, it does not clarify precisely when women can be compelled to accept treatment short of surgery, or exactly how high the risk to the baby must be before serious unwanted medical, or other state interventions can be justified. 20 This lack of clarity generates serious difficulties for women and practising midwives.

The Eighth, Uncertainty and Coercion

The Eighth Amendment is inherently ambiguous in its meaning and scope and the courts have not been able to fully clarify its content. In the context of abortion provision, medical practitioners’ inability to confidently interpret the constitution has had damaging consequences for women’s human rights.21 An analogous point might be made about the undue uncertainty surrounding the Eighth Amendment’s application to refusal of medical treatment in childbirth. In Ternovsky v. Hungary the European Court of Human Rights noted that ‘the right to choice in matters of child

pregnant woman’s life. The High Court granted orders for Ms. Y’s forcible feeding and hydration, and for a compulsory Caesarean section. 18 [1992] IESC 1 19 [2016] No. 8730P

20 By contrast, in the UK a pregnant woman is permitted to refuse medical treatment even where the intervention is minor; Re MB (An Adult: Medical Treatment) (1997) 2 FCR 541

21 A, B and C v. Ireland [2010] ECHR 2032. See similarly P. and. S. v. Poland [2012] ECHR 1853

delivery includes the legal certainty that the choice is lawful and [that women or health professionals are] not subject to sanctions, directly or indirectly.’ Every pregnant woman is entitled to ‘a legal and institutional environment that enables her choice, except where other rights render necessary the restriction thereof.’ That environment is not present in Ireland, as the experience of Mother A illustrates.

Mother A was pregnant with her second baby. Her first labour and birth had been a physically and psychologically traumatic experience involving forceps birth subsequent to induction of labour. Consequently, Mother A engaged the services of a self-employed community midwife (SECM) to give birth at home to give her and her second baby a better start.

On reaching 10 days post-term on her second pregnancy, she was advised by a hospital obstetrician that induction of labour was indicated due to the risks postmaturity posed to her baby, despite the fact that there was no clinical indication to do so. Rather, the hospital implemented a blanket policy of induction of labour at 10 days post-term.

The induction and acceleration of labour, accomplished by means of the same drugs and/or interventions, is common practice in Irish maternity care. Amniotomy is used both to induce and to accelerate labour by strengthening and speeding up contractions; it involves puncturing the membranes enclosing the protective waters surrounding the baby in the womb with an instrument resembling a crochet hook. While the evidence does not support its routine use as part of standard labour management and care,22 52.4 per cent of women giving birth at the National Maternity Hospital in 2009 had their waters broken.23 Although women’s views on the management of their bodies in labour are rarely sought, some studies show that women find this procedure unacceptable.

The induction and acceleration of labour is a cornerstone of the “active management” of women in labour. Active management is a set of obstetric protocols standardising the medicalisation of birth. Comprising the routine use of amniotomy and intravenous infusion of synthetic Oxytocin (the hormone that stimulates labour), active management speeds up the process of labour by dilating a woman’s cervix at a rate of 1cm per hour, thereby providing for 3 births per labour ward bed in 24 hours.24

Causing painful contractions, whether or not a woman is in labour,25 Oxytocin increases the demand for epidural anaesthesia, as women under active management strive to make labour more tolerable. Used in 47 per cent of births at the Rotunda,26 and in 41 per cent at the Coombe,27 epidural anaesthesia is associated with an increased risk of CS for foetal distress.28 This form of anaesthesia is

22 Smyth RMD, Markham C, Dowswell T. Amniotomy for shortening spontaneous labour. Cochrane Database of Systematic Reviews 2013, Issue 6. Art. No.: CD006167. DOI: 10.1002/14651858.CD006167.pub4 23 http://www.bump2babe.ie/national_maternity_hospital/statistics/ [accessed December 2016] 24 See Kieran O’Driscoll, Declan Meagher and Peter Boylan, Active Management of Labour: The Dublin Experience, London: Mosby, 1993

25 See Kieran O’Driscoll, Declan Meagher and Peter Boylan, Active Management of Labour: The Dublin Experience, London: Mosby, 1993 26 Rotunda Hospital. Annual Clinical Report 2014 27 Coombe Hospital. Annual Clinical Report 2014

28 Anim-Somuah M, Smyth RMD, Jones L. Epidural versus non-epidural or no analgesia in labour. Cochrane Database of Systematic Reviews 2011, Issue 12. Art. No.: CD000331. DOI: 10.1002/14651858.CD000331.pub3

often accompanied by continuous electronic fetal monitoring, thereby compounding the risk of CS in uncomplicated labour.

Electronic fetal monitoring limits women’s mobility, including the option of using a shower/bath, to help with comfort and control during labour, thus increasing the need for pharmacological pain relief. Evidence shows no benefit of electronic fetal monitoring over intermittent monitoring for the healthy mother with a healthy baby. On the contrary, it shows an association with significant increase in CS and instrumental births,29 due to erroneous interpretation of the produced fetal heart graph.

Mother A’s concerns about the risks of induction to her and her baby were dismissed by the obstetrician who informed her that if she should decline his advice, a court order would be obtained to enforce her admission and induction. Faced by the prospect of arrest by the police force, Mother A submitted to enforced induction of labour in hospital where the associated risks that she had feared materialised: following some 24 hours of painful contractions, amniotomy and Oxytocin infusion failed to establish labour while causing foetal distress requiring emergency Caesarean section. Mother A’s premature baby was admitted to the neonatal intensive care unit for treatment of hospital-acquired infection due to prolonged amniotomy, while she herself was detained on the postnatal ward for intravenous antibiotic treatment of the same infection.

While the National Maternity Strategy emphasises the importance of communication with the refusing woman, this was not borne out by the experience of Mother A, or by the experience of many women like her availing of maternity care in Ireland. In a national survey, conducted by the Association for Improvements in the Maternity Services Ireland, of 2,836 women who had given birth in Ireland between 2010 and 2014, 47.2 per cent of respondents had not been fully informed of the benefits, risks and potential outcomes of tests, procedures and treatments during labour and birth, and 49.8per cent were denied the opportunity to make an informed refusal of a test, procedure, or treatment.30

These experiences suggest that the inherent ambiguity of the Eighth Amendment has generated sets of ‘working interpretations’ built on the assumption that the duty to protect unborn life justifies expansive pre-emptive control of women’s birthing choices. Whether or not these ‘working interpretations‘ are well-intentioned, they contribute to a culture of coercion around childbirth in Ireland. Within this culture:

  • women’s capacity to plan childbirth in an informed way is undermined.
  • arbitrary violations of women’s rights to private life and bodily integrity are normalised.
  • the family life which women share with their partners, other children and new baby is badlydisrupted.As already noted, it is not clear whether the courts would support these ‘working interpretations’ of the Eighth Amendment. In our experience, however, they go unchallenged in practice because29 Alfirevic Z, Devane D, Gyte GML. Continuous cardiotocography (CTG) as a form of electronic fetal monitoring (EFM) for fetal assessment during labour. Cochrane Database of Systematic Reviews 2013, Issue 5. Art. No.: CD006066. DOI: 10.1002/14651858.CD006066.pub2 30 http://aimsireland.ie/what-matters-to-you-survey-2015/womens-experiences-of-consent-in-the-irish- maternity-services/

rather than contest them, women understandably submit to unwanted medical intervention. Women perceive that the Eighth Amendment is used cynically to punish non-compliance with medical advice, and to justify interventions which instrumentalise women as mere child-bearers.

Recommendations

  • Hold a referendum to repeal the Eighth Amendment. Establish legislation to regulate abortion and decision-making in pregnancy and childbirth to allow women equal access to the highest attainable standard of reproductive health.
  • Provide a human rights compliant framework for abortion and decision-making by women in pregnancy and childbirth in law in line with international best-practice in health care and international human right norms.
  • Provide information on how the State reconciles its obligations regarding women’s reproductive health under the Convention with its restrictive abortion laws and policy denying women’s rights in decision-making in pregnancy and childbirth arising from them.

 

Review of The Surgical Symphysiotomy Ex Gratia Payment Scheme Report of Judge Harding Clark

Download the PDF here: Review of The Surgical Symphysiotomy Ex Gratia Payment Scheme Report to Minister for Health Simon Harris TD of Judge Maureen Harding Clark

 

Review of The Surgical Symphysiotomy Ex Gratia Payment Scheme Report to Minister for Health Simon Harris TD of Judge Maureen Harding Clark 19th October 2016

 

January 2017

 

Contents

  1. Introduction …………………………………………………………………………………………………………………… 3
  2. Applications……………………………………………………………………………………………………………………. 3
  3. An un-awarded victim of symphysiotomy or pubiotomy ……………………………………………………… 4
  4. Who were the false claimants of medical experimentation and torture? ………………………………. 5
  5. The methodology for establishing symphysiotomy ……………………………………………………………… 65.1 Missing medical records………………………………………………………………………………………………….65.2 ‘Silent’ medical records …………………………………………………………………………………………………..75.3 Unreliable Birth Registers ……………………………………………………………………………………………….85.4 Annual Clinical Reports …………………………………………………………………………………………………..85.5 Lack of medical expertise ………………………………………………………………………………………………..95.6 Invalid X-ray ……………………………………………………………………………………………………………….10
  6. The methodology for establishing significant disability ……………………………………………………… 11
  7. The Harding Clark Diagnostic Bar……………………………………………………………………………………..12
  8. Conclusion ……………………………………………………………………………………………………………………. 13

References ………………………………………………………………………………………………………………………….. 14

2

1. Introduction

Midwives for Choice is gravely concerned by the gaps in evidence and flaws in objectivity apparent in the Report by Judge Harding Clark on the Surgical Symphysiotomy Ex Gratia Payment Scheme.

On a budget of €34 million allocated by Minister Leo Varadkar, the Scheme was set up in 2014 on foot of the Walsh Report (Department of Health, 2014) and immediately prior to ruling by the United Nations Human Rights Committee that the practice of symphysiotomy between the 1940s and 1980s in Ireland constituted torture and involuntary medical experimentation, that is, without the knowledge or consent of the women involved.

Symphysiotomy involves surgical incision of the fibrous cartilage – the symphysis pubis – uniting the pubic bones of the pelvis, while pubiotomy involves sawing through either or both of the pubic bones united by the symphysis pubis.

Once an applicant established that she had undergone a surgical symphysiotomy or pubiotomy between 1940 and 1990, three levels of compensation were made available:

  •   €50,000 for symphysiotomy performed during labour
  •   €100,000 for symphysiotomy performed before labour or after birth, or pubiotomy
  •   €50,000 for significant associated disability greater than 3 years in addition to either of theabove.At a cost of €1.2m to administer the Scheme, and a further €105,000 for examination and investigation of claims,67,68 Judge Harding Clark extolls the Report as making a significant contribution to the body of knowledge on symphysiotomy.15 However, the Report is characterised by a reticence to present actual figures, using vague generalisations instead for key findings as though to keep the reader in the dark. As such, in the absence of transparency or proximity to objective scientific standards at any level, Midwives for Choice does not recognise any such contribution by the Report to the body of knowledge on symphysiotomy.2. ApplicationsThe Scheme opened for applications over 20 working days from 10 November 2014 to 05 December 2014. Within this timeframe, 563 applications were received by the Scheme.209 A further 27 were received after the closing date, permitted over an extended 20 working days, up to 14 January 2015, in the event of unspecified exceptional circumstances. Of these later applications, 12 were rejected, thus leaving a total 578 applications accepted onto the Scheme.209However, not all 578 accepted applicants proceeded with the Scheme. The collation of disparate evidence shows that subsequent to applying, 1 woman sadly died before her case could be assessed.123 A further 65 women formally withdrew their application;216 8 made no contact with the Scheme subsequent to submitting a bare application form without any supporting evidence;217 and

3

21 applications had been made erroneously by women misled by their medical records wrongly recording the surgical term, symphysiotomy, for naturally occurring dysfunction of the symphysis pubis. Thus, of the initial 578 applications accepted, 483 ultimately progressed for processing by the Scheme.

3. An un-awarded victim of symphysiotomy or pubiotomy

The Report states that symphysiotomy was established in 403 cases and pubiotomy in 1 case, equating to 404 eligible claimants in total, however, Table 1 shows its accounting for a total 405 eligible claimants of whom 399 were ultimately awarded:18

Table 1. Reported established claims

Cases

Frequency

Sub-total

Awarded €50,000

216

216

Awarded €100,000

168

384

Awarded €150,000

15

399 (total awarded)

Death of claimant before offer was made

4

403

Death of claimant after offer was made but before it could be formally accepted

1

404

Offer rejected by claimant in favour of litigation

1

405

Total

405

So, which figure is correct – 404 eligible claims for award as reported by Judge Harding Clark, or 405 as accounted for by the Report? Evidently the figure of 405 eligible claims is correct. Firstly, the Report claims a total 590 applications of which 185 were ineligible,18 equating to 405 eligible claims. Secondly, with specific reference to the 399 cases ultimately awarded, isolated figures presented across paragraphs 18 – 21, 134, 200 and 201 add up, not to 399 but rather to 400 eligible claimants, as shown in Table 2.

Table 2. Reported established claims awarded

Without disability

With disability

Total

Symphysiotomy during labour18

216

128*

344*

Pre-labour symphysiotomy200

29

9

38

Post-birth symphysiotomy201

13

4

17

Pubiotomy21

0

1

1

Total

258*

142

400

*Omitted by the Report

4

While much ado is made by the Report about errors in awarding 6 non-eligible applicants, providing a detailed account of the circumstances leading Judge Harding Clark into making such errors,99,101 no such concern is shown for ensuring the award of all eligible claimants was accomplished. Who was the victim of established symphysiotomy or pubiotomy unjustly denied a minimum award of €50,000? This inaccuracy in basic calculation and accounting of eligible claimants for award is but one striking mark of the abysmal standards of a Scheme that cost in excess of €1.2 million to administer.

4. Who were the false claimants of medical experimentation and torture?

A dominant feature of the Report is the castigation of 185 elderly women as “self-serving”226 false- claimants who “should never have persuaded themselves to make a claim for payment for a procedure they did not have”.212 The finding is repetitively highlighted at every opportunity throughout the Report, which dedicates some 12 pages of narrative to ‘Ineligible claims’ and the question ‘How did so many get it wrong’.

Given the Report’s accounting for 405 eligible claimants for award, 78 applicants thus failed to establish their claim from the total 483 progressed for processing by the Scheme. So how did Judge Harding Clark arrive at the figure of 185 false claims if all but 78 claimants established either symphysiotomy or pubiotomy? Table 3 shows the composition of the so-called false claimants.

Table 3. So-called false claimants

Cases

Frequency

Death of applicant before case could be assessed (123)

1

Applications voluntarily withdrawn (216)

65

Applications unpursued by lack of any subsequent engagement with the Scheme (217)

8

Applications made in error due to symphysiotomy wrongly recorded in medical records (219, 221)

21

Rejected late applications “on the basis that no qualifying procedure was established” (214), comprising 5 applications unpursued by lack of any subsequent engagement with the Scheme; 2 applicants misled by symphysiotomy wrongly recorded in records; and 1 applicant whose reason for late application was perceived not to amount to exceptional circumstances (219, 221)

12

Sub-total

107

Applicants who proceeded with the Scheme but failed to establish symphysiotomy or pubiotomy

78

Total

185

The policy adopted by Judge Harding Clark did not make provision for oral evidence by applicants, rather, she relied solely on verifiable objective medical evidence for establishing claims.80 This meant that applicants, the majority of whom were over 75 years of age,78 were required to obtain their

5

medical records going back between 14-74 years, and to do so within the timeframe of 20 working days for submission of applications. Given this challenging task, coupled with the fact that “so many applicants … were unaware that they had undergone symphysiotomy”,229 submitting an application form whilst awaiting medical records for verification was a wise approach for women in any doubt to take, and particularly given that exceptional circumstances had to be established for acceptance of late applications.

This approach is apparent in the conduct of 107 applicants, represented in Table 3, who subsequently voluntarily withdrew from the Scheme or simply didn’t follow through with their application. It is furthermore apparent in the conduct of 18 applicants whose claim was subsequently up-graded due to under-claiming in their application forms.121 While no comment is made by the Report about under-claimants, the castigation of 107 women for submitting an application form as false claimants is a repugnant attitude towards elderly women acting responsibly and fairly in their own interests and those of the Scheme. The question that remains is whether a similarly biased subjectivity was inherent in Judge Harding Clark’s unwavering confidence that the remainder 78 so-called false claimants “did not in fact undergo symphysiotomy”.225

5. The methodology for establishing symphysiotomy

The Report notes that the threshold for establishing symphysiotomy was strict. Of the total 185 ‘false claimants’, a minimum 94 (51%) also claimed for associated significant disability,214 and 13 women reported having no further children after the birth of their first and only child as a consequence of symphysiotomy.222 It is unlikely that these 13 women would have withdrawn their application and were thus among the 78 claimants who proceeded with the Scheme and failed to establish their claim. Given this insight into their profile, a high standard of evidence was called for in making the finding that none of these 78 women had had the surgery. While Judge Harding Clark proclaims that every decision on her part in eliminating claimants was appropriately made, there is no evidence of a sound basis apparent in the Report for her confidence.

5.1 Missing medical records

The assessment of claims comprised a review of medical records as a first step. The Report notes: “Objective findings contained in contemporaneous medical records and from radiology were relied upon.”132 If an applicant could show evidence in her medical records for symphysiotomy it was thus established. However, “the very many cases” in which no medical records could be sourced represented 175 cases98 – a significant finding inappropriately relegated to an easily overlooked footnote.

Given the primary reliance by Judge Harding Clark on medical records to establish claims, an objective and transparent report would have provided a breakdown of the 175 cases of missing records by successful and unsuccessful claimants. Doing so would have given an insight into the

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implications of missing records for applicants in establishing their claim and hence the validity of reliance on medical records. Predictably, no such transparency is afforded, indeed the Report appears wilfully ambiguous on this matter. Consequently, it can only be surmised that missing records was a salient factor for the 78 claimants in failing to establish symphysiotomy, and hence in their categorisation as false claimants.

5.2 ‘Silent’ medical records

Medical records did not necessarily represent reliable evidence for those who succeeded in obtaining them. Applicants are reported as having widely asserted in their application forms that symphysiotomy had been performed without their knowledge228 and deliberately not recorded in their medical records.223 The Report notes:

Many applicants – both those who received an award and those who did not undergo symphysiotomy or pubiotomy – who provided personal statements complained that they were unaware, even though they suffered many painful symptoms, that a symphysiotomy had been performed and they especially complained that they were totally ignorant of what to expect when discharged from hospital.228

This significant and widespread evidence by applicants is corroborated by the findings of the Scheme. While the warranted details are not provided, reference is made by the Report to medical records “silent” on symphysiotomy96 and to records that “did not support” symphysiotomy in cases where symphysiotomy was otherwise established.98

The evidence on the lack of reliability of medical records on symphysiotomy performance is not however reflected by Judge Harding Clark:

Particular difficulties arose in a number of cases where the applicants were firmly convinced that they had undergone either symphysiotomy or pubiotomy and were unwilling to accept the truth of the content of their medical records.117

Lack of awareness among women of having undergone symphysiotomy accords with reported findings in relation to women who lost their baby at the time of symphysiotomy. Relegated to a footnote, the Report notes:

The practice at the time seemed to be to conceal any gross congenital fetal abnormalities from the mother. Several mothers therefore continued to grieve for the baby who they believed was perfectly formed but still born.191

Notably, women’s testimony of not being informed about, much less consenting to, symphysiotomy also accords with medicalised birth during the era in question when women gave birth in a drugged stupor. Medical practice during the 1940s, ‘50s and ‘60s was to keep birthing women sedated in ‘twilight sleep’ by injection of morphine combined with scopolamine – an amnesic drug – from which they awoke to find their baby born with no awareness of how it had happened or what had been

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done to them in the process (Cassidy,2007). No reference is made by Judge Harding Clark to the medical practice of ‘twilight sleep’ consistent with women’s testimony anywhere in the 273-page report, despite a team of consultant obstetricians engaged as her advisors. Rather, Judge Harding Clark dismisses the widely shared testimony of women as a “self-convincing confabulation of personal history”226 on the part of those whose claim was unestablished, and as a “lapse of memory less easy to understand”229 on the part of those who had established symphysiotomy. In characteristic fashion, reflected throughout the Report, Judge Harding Clark asserts her own subjective view over the evidence presented by women: “I am reasonably satisfied that patients were informed that symphysiotomy had been performed and why”.230

5.3 Unreliable Birth Registers

For those whose medical records were missing, or whose available records were silent on symphysiotomy, Birth Registers maintained by maternity hospitals, comprising summary details of each birth, provided another important source of evidence to establish their claim. Of those who succeeded in establishing their claim, the vast majority had done so by furnishing to the Scheme a copy extract from their hospital’s Birth Register confirming symphysiotomy.81

The Scheme itself also undertook to review Birth Registers on behalf of outstanding claimants, however, it was found that in common with medical records, Birth Registers did not reliably record the performance of symphysiotomy, confirmed by the finding that symphysiotomy cases reported in Annual Clinical Reports had not been recorded in the Birth Register.96 This evidence therefore shows that simply because a woman’s medical records, if available, or details of the birth recorded in the Birth Register, made no mention of symphysiotomy carried out, it did not amount to establishing the woman had never had symphysiotomy.

5.4 Annual Clinical Reports

Periodic Annual Clinical Reports going back to the 1940s produced by the three Dublin maternity hospitals and the Lourdes hospital in Drogheda were sourced by the Scheme. Combined, these four were named as the offending hospitals in 61 per cent of all claims.77

The Report explains that identifiers used by the Annual Clinical Reports for the purpose of preserving patient confidentiality enabled the Scheme to trace the reported cases back to claimants, thereby enabling women to establish their claim who had otherwise failed to do so by medical records or Birth Register.

Judge Harding Clark claims that the Annual Clinical Reports “always identified each symphysiotomy performed”.96 Given the evidence of symphysiotomy performed on women without their knowledge, combined with their complaints of symphysiotomy deliberately not recorded and substantiated by evidence of ‘silent’ medical records and Birth Registers, the sweeping assertion that accurate

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reporting of all symphysiotomy surgery performed on patients was reserved for an annual overview of the hospitals’ maternity services in the form of Annual Clinical Reports simply lacks credibility.

Indeed the claim points more to the influence of five consultant obstetricians, two of whom are employed by two of the four hospitals in question, acting as key advisors to Judge Harding Clark throughout the Scheme. Dr Peter McKenna who led the obstetric team is employed by the Rotunda hospital while Dr Peter Boylan is employed by Holles Street hospital, the hospital responsible for introducing symphysiotomy to Irish obstetrics in 1940s. The potential bias arising from the conflicted interests of the consultants in guarding the reputation of their profession and hospitals against damning evidence of a prevailing obstetric culture in which the historically controversial surgery was performed on patients without trace in medical records cannot be ignored in relation to the claim on the accuracy of Annual Clinical Reports.

The need for an open mind by Judge Harding Clark on the accuracy of Annual Clinical Reports is furthermore evidenced, albeit indirectly, in criticism by Professor W Kearney in Cork in 1957 of the master of the Rotunda. Drawing into question the transparency of the Rotunda Annual Clinical Report on symphysiotomy performance, Professor Kearney is quoted from a report of an annual obstetric meeting that year:

Symphysiotomy was not considered under a separate heading in the Rotunda Report and I could find only two references to it. On page 50 it is stated that symphysiotomy was carried out at the time of performing section in one case. On page 56 we read that “the operation continues to be used to a very small extent in the hospital” …. Surely there must have been several cases during the year that qualified for this operation at the Rotunda. If so, they are not mentioned in the Report (pg.230-231).

5.5 Lack of medical expertise

The Report notes: “When all efforts failed to obtain records, we moved to seeking secondary proof by scar and radiology evidence”.92 Women who thus far had failed to establish symphysiotomy by hospital or GP medical records, Birth Register or Annual Clinical Report, were referred by the Scheme for physical examination to Dr Peter McKenna and his team for evidence of symphysiotomy scar. However, the deficit in obstetric clinical expertise is reported, as none among the consultants had first-hand knowledge of the procedure of symphysiotomy or of the appearance of its scar. The Report also describes the difficulty in discerning the “faint and tiny” scar94 left by ‘stab incision’ closed by one suture – the technique for symphysiotomy in use by the late 1950s93 – and in distinguishing “criss-crossed” stretch marks from a stab-incision scar, all of which was compounded by the challenge presented by “pendulous” abdomens and “old and extensive” Caesarean section scars.98 Despite acknowledgement by the medical team that symphysiotomy scars from so long ago could be mistaken for stretch marks,100 Judge Harding Clark nevertheless retains full confidence in the method of assessment: “Fortunately, in most instances, there was no doubt about the absence or presence of a symphysiotomy scar. Either one was evident or it was not.”98 Confirmed by her own advisors, there was no basis for her confidence in the reliability of medical examination.

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5.6 Invalid X-ray

Women whose faint and tiny scar was undetected by medical examination were referred for pelvic X-ray to Professor Leo Lawler, consultant radiologist at the Mater Hospital and visiting consultant to the Rotunda Hospital, for evidence of symphysiotomy on the pelvis to establish their claim. With respect to the value of X-ray, the Report notes:

Radiology was a vital tool in assisting to establish the fact of a surgical symphysiotomy when documents were unavailable and when scar evidence was equivocal.102

The value of radiology was not however borne out by the experience of Professor Lawler reporting no evidence of symphysiotomy on the X-ray of women who had proof of the surgery otherwise. In cases of established symphysiotomy, the Scheme found that radiology showed a completely normal pubic symphysis and normal pelvic joints indistinguishable from that of a woman who had not undergone symphysiotomy.23 Consequently, the Report contradicts the view of radiology as a vital tool::

It is fully accepted that radiology has limitations as a diagnostic tool. It cannot exclude symphysiotomy when a completely normal symphysis pubis is found. Many applicants who we knew from reliable records had undergone symphysiotomy, were categorised as grade III [showing no evidence of symphysiotomy on X-ray].106

Thus, the 78 women who failed to establish symphysiotomy, among whom were 13 women who blamed symphysiotomy for limiting their family to one child,223 were castigated by Judge Harding Clark for making false claims on grounds none other than a fundamentally flawed methodology that offered no reliable means of eliminating their claim. In a mark of the extent of prejudice against them, the claim by women that their experience of symphysiotomy was such that they had no further children is dismissed on no more solid basis than that Judge Harding Clark simply did not believe them, taking the view instead that they represented “possible voluntary infertility”,222 that is, they had no further children by choice. The Report notes:

All that is known is that 13 women stated in their application forms that they had no further live children after the birth at which they wrongly but perhaps understandably, believed that symphysiotomy or pubiotomy was performed.222

In the absence of any grounds for making the claim, Judge Harding Clark served a gross injustice by the assertion that these 78 women, together with 107 other applicants, brought “unfounded claims”224 as “they did not ever undergo symphysiotomy”.229

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6. The methodology for establishing significant disability

Once the qualifying symphysiotomy or pubiotomy was established, claims for associated significant disability were then assessed. Of all 404 women who established symphysiotomy, 70 per cent claimed associated significant disability,133 representing some 285 claimants.

The Scheme defined significant disability, for which an additional €50,000 was awarded, as:

…medically verifiable physical symptoms and/or conditions directly attributable to the surgical symphysiotomy or pubiotomy and which have had a serious and debilitating effect on the Applicant’s quality of life and include, but are not confined to, pelvic instability, pelvic pain, dyspareunia, urinary incontinence, back pain, pain on walking which continued for more than three years after the surgical symphysiotomy or pubiotomy.125

With respect to establishing significant disability, the Report explains that “GP records which outlined symphysiotomy related conditions and referrals for X-ray were of primary importance”,80 and that “objective contemporaneous records stretching over many years were preferred”.112 The reliance by Judge Harding Clark on GP records for establishing significant disability was problematic for a number of reasons. Firstly, it severely restricted the opportunity of women confirmed to have had symphysiotomy to establish their claim for associated disability who could not source their medical records. Secondly, the Report notes:

…many applicants stated that they were unaware that they had undergone symphysiotomy until they heard/saw/read something in the media.229

This evidence points to women becoming informed through the media and dedicated support groups of what symphysiotomy entailed and its effects, enabling them to recognise their symptoms retrospectively as fitting that they had undergone symphysiotomy. Yet, on review of GP records, claims for associated disability were eliminated by Judge Harding Clark on grounds that “it was clear that the patient had never mentioned having undergone symphysiotomy nor had she made complaints referable to any obstetric procedure”.114 How could a woman identify symphysiotomy to her GP and associate her complaints with it if she had not been aware that she had undergone the surgery? Eliminating claims for associated disability on grounds that claimants had not reported undergoing symphysiotomy to their GP or made complaints referable to it was entirely invalid in the context of evidence of a culture of silence on symphysiotomy performance, and most particularly in the context of symphysiotomy being established by women who had not been aware that the surgery was performed on them.

Judge Harding Clark indulges in much self-praise about her compassionate and generous approach to the assessment of disability claims132 on the basis that she reduced the threshold for establishment from ‘directly attributable to symphysiotomy’ to ‘possible association with symphysiotomy’.134 Her compassion and generosity did not however extend to the establishment of claims on finding supportive evidence in medical records. The Report notes that even when evidence

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of possible significant disability was identified in the medical records “of very many cases”, disability could only be assumed on confirmation by X-ray.113

Alas, the reliance on X-ray was also problematic. The Report references the unresolved difficulty experienced by Professor Lawler in identifying what was meant by the qualifying condition of pelvic instability and how to diagnose it:

From the commencement of the Scheme, he [Professor Lawler] had difficulty in identifying just what pelvic instability meant in the context of a surgical procedure rather than a traumatic pelvic ring injury. This issue has remained problematical especially when viewing the imaging of a joint and pelvis so many decades after the fact of the symphysiotomy.104

Consequently, despite the evidence “in very many cases” of possible disability associated with symphysiotomy in medical records,113 the methodology of assessment adopted by the Scheme ultimately established associated significant disability in 79 (19%) cases of symphysiotomy or pubiotomy. While Judge Harding Clark lauds the “unparalleled opportunity” provided by the Scheme for obstetricians and orthopaedic surgeons to evaluate the long-term effects of symphysiotomy and its role in obstetrics today,15 the omission to report the rate of established disability associated with symphysiotomy in labour is yet another example of the abysmal contribution the Report makes to any valid evaluation. The rate of 37 per cent (128 cases) established associated disability among the 344 women who had proof of symphysiotomy during labour is nevertheless calculable, as already shown in Table 2.

7. The Harding Clark Diagnostic Bar

While Judge Harding Clark asserts confidence that every decision on her part was appropriately made in eliminating claims for symphysiotomy and associated disability, she ultimately demonstrates a lack of conviction in her own methodology. Verifiable objective medical evidence by way of contemporaneous medical records, the presence of a scar, or abnormality on pelvic X-ray was the standard she adopted for establishing claims. Of the total 483 applicants whose claims progressed for assessment, 405 (84%) established symphysiotomy or pubiotomy while the methodology could not exclude the remaining 78 (16%) had undergone the surgery. Of those who established their claim, 79 (19%) also established associated significant disability, but the rate was way below the 285 (70%) claims. Judge Harding Clark was apparently uneasy about concluding the Scheme with these outcomes, hence, in what she describes as “the most contentious part of my method of assessment”,107 she took the decision to introduce an arbitrary measure of 15mm separation of the pubic joint as a definining diagnostic bar to bring the Scheme to closure. She explains:

As so many applicants claimed symptoms which were not supported by their medical records, I sought to devise some method by which a degree of objectivity could be introduced to the assessments. It was becoming

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increasingly evident that a surgically separated pubic joint could fully reapproximate with the passage of time…. I therefore decided that any diastasis [separation] of 15mm or more in width would be considered to be sufficient evidence to (a) establish symphysiotomy and, much more important for the purposes of the Scheme, (b) to constitute significant disability directly attributable to that symphysiotomy.107

Why did Judge Harding Clark perceive the introduction of her diagnostic bar as more important for the purpose of the Scheme in establishing significant disability than in establishing symphysiotomy? In setting this arbitrary bar of 15mm diastasis, 63 more women were brought into the Scheme’s net for award of an additional €50,000 for associated significant disability,137 bringing the total established disability claims to 142. This served two important purposes. Firstly, it increased the rate of associated disability established by the Scheme from 19 per cent to a more agreeable rate of 35 per cent, representing a half of those who claimed in total. Secondly, it added in excess of €3.6 million to awards made by the Scheme, bringing the pay-outs up to the allocated budget and hence averting the potential attraction of scrutiny into the Scheme’s coming in under budget.

8. Conclusion

The contrary outcome ultimately achieved by the Scheme was that women who did not meet the arbitrary criterion of 15mm were nevertheless awarded because they established symphysiotomy and disability in other ways. By Judge Harding Clark’s own admission, a persistent separation of 15mm of the pubic joint “is unsupported by any orthopaedic literature”.108 Thus, by setting an arbitrary and invalid measure that no woman whose pubic joint had realigned could fit, the ground was laid for Judge Harding Clark to claim 78 women as never having had symphysiotomy, adding a further 107 women who had withdrawn from the Scheme, and thus presumably not tested for diastasis, to make the finding of 185 false claimants.

Those who failed to establish symphysiotomy under the Scheme’s methodology were disqualified not because symphysiotomy was disproven but rather by a fallacious test. Equally, those who claimed associated disability with established symphysiotomy were instantly eliminated by the same fallacious test as never having suffered disability. In doing so, Judge Harding Clark brought the Scheme to conclusion within budget at just under €34 million.

Midwives for Choice acknowledges the challenge faced by Judge Harding Clark in the absence of objective evidence due to inconsistencies across medical records, Birth Registers and Annual Clinical Reports, combined with unreliable scar evidence and pelvic X-ray. Irrespective of these challenges, there was an onus on Judge Harding Clark to do justice to the best of her ability for the women who had placed their faith in her. Failure to acknowledge the limitations of the Scheme’s methodology in favour of branding honest and responsible elderly women as false claimants, and setting an arbitrary

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diagnostic bar in full knowledge of the impossibility of women reaching it whose symphysis pubis had re-approximated over time, is far from the standard of justice to which applicants were entitled.

Contrary to what has been reported in some areas of the media, the Report does not disprove that a single applicant was subjected to symphysiotomy – rather it fails to establish symphysiotomy by a fundamentally flawed methodology to which a self-recognised diagnostic measure with no basis in evidence was added by Judge Harding Clark. The limitations were not with any applicant but rather with the Scheme’s invalid assessment that could not exclude symphysiotomy.

A more just and humane approach would have given women an opportunity to have their testimony heard by the Scheme to ascertain further evidence before their claims were dismissed. The Scheme’s terms of reference did not out-rule oral evidence, thus, Judge Harding Clark decided herself not to take it as a matter of policy. It would also have made provision for any woman dissatisfied by the outcome to appeal the decision on their case. But these measures were denied, and with them the opportunity to give these elderly women a fair hearing and a dignified process.

The underlying culture the Report exposes is one of distrust of women, and a starting position of women’s testimony being inherently unreliable as a measure in establishing symphyiostomy. Despite not being able to clinically disprove symphysiotomy, the Scheme has failed applicants, creating an image of unreliability, opportunism and untrustworthiness that is entirely unfounded. No reliable clinical basis is provided by the Report for a single claimant being declined and in the absence of it, Midwives for Choice has no confidence in the outcome of the Surgical Symphysiotomy Ex Gratia Payment Scheme.

We deeply regret the lost opportunity to defend and assert the human rights of women in Ireland to freedom from inhumane and degrading treatment in childbirth and we stand in solidarity with the victims of symphysiotomy who have been let down so profoundly by the Scheme.

References

15-230: The Surgical Symphysiotomy Ex Gratia Payment Scheme, Report to Minister for Health, Simon Harris TD, of Judge Maureen Harding Clark, 19th October 2016; referencing to paragraph numbering used by the Report

Cassidy, T. (2007) Birth: The Surprising History of How We Are Born. New York: Grove Press.

Department of Health (2014) ‘Prof. Oonagh Walsh, Glasgow Caledonian University, Report on Symphysiotomy in Ireland, 1944-1984. Available at: http://health.gov.ie/blog/publications/report- on-symphysiotomy-in-ireland-1944-1984-professor-oonagh-walsh/

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Submission to Citizens' Assembly

Download the PDF here: Submission to Citizens’ Assembly

 

Submission to the Citizens’ Assembly, December 2016

CONTENTS

Introduction: the impact of the Eighth Amendment on all aspects of maternity care in Ireland…………3

An overview of the adverse impact of the Eighth Amendment in labour and birth…………………………….4

Caesarean Section…………………………………………………………………………………………………………………5

Electronic fetal monitoring……………………………………………………………………………………………………5

Induction and acceleration of labour…………………………………………………………………………………….6

Epidural anaesthesia……………………………………………………………………………………………………………..8

The consequences for babies………………………………………………………………………………………………..8

Breastfeeding………………………………………………………………………………………………………………………..8

Poor maternal health…………………………………………………………………………………………………………….9

The demand for choice………………………………………………………………………………………………………….9

Private profits……………………………………………………………………………………………………………………….9

The Eighth Amendment……………………………………………………………………………………………………………………10

The law on over-ruling pregnant women’s choices……………………………………………………………..10

Uncertainty and coercion……………………………………………………………………………………………………11

Human rights as a foundation for high-quality maternity care…………………………………………………………12

Obstetric violence……………………………………………………………………………………………………………….13

Informed decision-making and choice……………………………………………………………………………………………..14

Conclusion……………………………………………………………………………………………………………………………………….15

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1. INTRODUCTION: The Impact of the Eighth Amendment on all aspects of maternity care in Ireland

Article 40.3.3 of the Irish Constitution (the Eighth Amendment) enshrines the equal right to life of the woman and foetus. In practice, however, this has meant that the foetus takes precedence. The impact of the Eighth Amendment, beyond restricting abortion rights, is substantial and far-reaching, affecting the fundamental human rights of every woman in pregnancy and childbirth, denying her rights to bodily autonomy and informed decision-making in relation to medical care and treatment that are recognised in every other aspect of her life.

Arguably, in voting for the Eighth Amendment in 1983, the people understood that they were voting about abortion only. However, the language of the Eighth Amendment itself, which refers to the ‘life’ of ‘the unborn’, has been interpreted to bring the duration of pregnancy, labour and birth within the Amendment’s reach. The Eighth Amendment directly impacts on the right to choice in childbirth of some 70,000 women giving birth annually in Ireland. As such, pregnant women are the only group of competent decision-making capacity excluded from the National Consent Policy of the Health Service Executive1, which stipulates:

“The consent of a pregnant woman is required for all health and social care interventions. However, because of the Constitutional provisions on the right to life of the “unborn” (Article 40.3.3 of the Constitution of Ireland 1937), there is significant legal uncertainty regarding the extent of a pregnant woman’s right to refuse treatment in circumstances in which the refusal would put the life of a viable foetus at serious risk. In such circumstances, legal advice should be sought as to whether an application to the High Court is necessary.”

The duty, emanating from the Eighth Amendment, on the medical profession to vindicate the state’s interest in protecting the foetus, even over the objection of a competent and unwilling pregnant woman, gives rise to incentives in a context of imbalance of power and information between the doctor and the pregnant woman. The problem is significantly compounded for women whose approach to health and risk-limitation diverges from the reductionist medical view. For the woman who makes an informed decision to refuse medical intervention in the interests of her own and her baby’s health and safety, the national consent policy denies her the opportunity to guard and protect herself and baby.

While the Eighth Amendment is by no means the only contributing factor to a culture where meaningful informed choice and human rights in pregnancy and childbirth are not properly observed, it is the single greatest obstacle to the realisation of this and hence to the attainment of the highest level of health that is the right of every pregnant woman for herself and her unborn baby.

In falsely and divisively creating a separation between the mother and her unborn, the Eighth Amendment sets both up as having competing interests. This is patently not the case for women in continued pregnancy, who have the best possible outcomes for themselves and their unborn baby to the fore of their thinking at all times. It is this vitally important reality that is crudely eroded by the Eighth Amendment, in forcing an impossible divide in a relationship that is in fact inseparable. It

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is through the mother exercising her right to dignity, autonomy and choice, that the achievement of the best possible outcomes is possible for both the mother and baby together.

Unsafe abortion is one of the five leading causes of maternal mortality globally.2 Midwives for Choice supports repeal of the Eighth Amendment, and liberalisation of Ireland’s abortion law, in the interest of safeguarding the lives and health of women living in Ireland who choose abortion. This submission is, however, confined to discussing the impact of the Eighth Amendment in undermining the safety and health of women, and their babies, who choose to continue their pregnancy.

2. AN OVERVIEW OF THE ADVERSE IMPACT OF THE EIGHTH AMENDMENT IN LABOUR AND BIRTH

Pregnancy and childbirth are momentous events in the lives of women and families, representing an important rite of passage with deep personal and cultural significance for a woman and her family. Because motherhood is specific to women, issues of gender equity and gender violence are also at the core of maternity care.

A woman’s relationship with maternity care providers and the maternity care system during pregnancy and childbirth is vitally important, at a time in her life when her identity as a mother is being forged. Not only are these encounters the vehicle for essential and potentially lifesaving health care, women’s experiences with caregivers at this time have the impact to empower and comfort or to inflict lasting damage and emotional trauma, adding to or detracting from women’s confidence and self‐esteem. Either way, women’s memories of their childbearing experiences stay with them for their lifetime and are often shared with other women, contributing to a climate of confidence or doubt around childbearing.

Imagine the personal treatment you would expect from a maternity care provider entrusted to help you or a woman you love give birth. Naturally, we envision a relationship characterized by caring, empathy, support, trust, confidence, and empowerment, as well as gentle, respectful, and effective communication to enable informed decision making. Unfortunately, too many women experience care that does not match this image. Our approach to maternity care and key elements of the outcomes achieved provides an insight into the effect of the Eighth Amendment in copper-fastening the domination and control of women in childbirth and the injustice it levels at vulnerable pregnant and birthing women simply seeking to get the best possible outcome for themselves and their babies.

This section outlines the current landscape in maternity services in Ireland, and will explore the impact of the Eighth Amendment into an unsustainable and damaging system of maternity care that is predicated on a lack of meaningful informed consent or refusal for women, and appropriate choice.

 While we use ‘woman’ throughout this submission, we recognise that not everyone who is pregnant is a woman 4

2.1 Caesarean section

Despite the fact that as many as 80-85 per cent of women are healthy in childbirth, Ireland’s maternity care system is modelled on specialist obstetric care in hospitals for pregnant women. As health care budgets career out of control, the economic and social costs of this centralised model of maternity care for physiological birth have become unsustainable.

Within the specialised, hospital care model, efficient progress in labour is necessary for processing large numbers of birthing women to avert a labour ward bottle-neck. This has led to high levels of unnecessary and costly medical intervention.

Increases in the use of Caesarean section (CS) have been particularly steep in recent decades leading to concerns about the benefits of CS being outweighed by the increased clinical risks and higher costs relative to vaginal delivery. In Ireland the proportion of total births delivered by CS increased four-fold from 7.4 per cent in 1984 to 29.8 per cent by 20143, thus, almost 1 in 3 women give birth surgically today.

The World Health Organisation defines CS rates over 15 per cent as an ‘excess’ and ‘over-use’, and urges countries with levels over this rate to take action to address it.4 From a risk management perspective, there is good reason for concern. While maternal death is a rare event, CS can be life- threatening. Unnecessary CS are those which are done in the absence of any underlying medical problem. The evidence on this category of CS shows the risks involved in the operation and consequently the imperative of concerted efforts to address over-use of the procedure. Compared to spontaneous vaginal birth, elective (pre-labour) and intrapartum (in-labour) CS, without medical indications, has been shown to be associated with increased risk of death, admission to intensive care unit, blood transfusion and hysterectomy.5 An insight into why our CS rate in a population of predominantly healthy women is double that recommended by the WHO is gleaned from the approach to managing birth in our hospitals.

2.2 Electronic fetal monitoring

Routine medical intervention in the normal physiological process of birth sets in train a domino effect, inevitably leading to a proportion of iatrogenic damage. The routine use of electronic fetal monitoring is commonplace in Irish hospitals. Electronic fetal monitoring limits women’s mobility, including the option of using a shower/bath, to help with comfort and control during labour, thus increasing the need for pharmacological pain relief. Evidence shows no benefit of electronic fetal monitoring over intermittent monitoring for the healthy mother with a healthy baby. On the contrary, it shows an association with significant increase in CS and instrumental births,6 due to erroneous interpretation of the produced fetal heart graph. In this context, denying a healthy woman in labour the right to refuse routine electronic fetal monitoring in accordance with hospital policy denies her the right to guard and protect herself and her baby. In a survey of women’s experiences of maternity care, involving 2836 women, conducted in 2014 by AIMS Ireland, entitled ‘What Matters to You’30 the following comments show the effect of the Eighth Amendment in practice:

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“I was instructed that I wouldn’t have the option to refuse monitoring during labour. I wanted the option to refuse monitoring (FHM) [fetal heart monitoring] during labour to move around and be more mobile if I desired.”

“A fetal scalp electrode was applied to my baby and an arm [artificial rupture of membranes] was performed without seeking consent. The only reason I was told the fse had been applied was because I noticed the different sound of the fhr beat on the ctg.”

“I was told I had no choice when it came to my treatment, everything was ‘hospital policy’.”

2.3 Induction and acceleration of labour

Induction of labour continues to be common, as does the practice of acceleration of labour. In 2014, the induction rate at the Coombe hospital in Dublin was 31 per cent, significantly increasing the risk of CS for first-time mothers; the rate among those who laboured spontaneously was 10.6 per cent, rising to 31.2 per cent among those whose labour was induced.7

Both induction and acceleration of labour are accomplished by means of the same drugs and/or interventions. Amniotomy is used both to induce and to accelerate labour by strengthening and speeding up contractions; it involves puncturing the membranes enclosing the protective waters surrounding the baby in the womb with an instrument resembling a crochet hook. While the evidence does not support its routine use as part of standard labour management and care,8 52.4 per cent of women giving birth at the National Maternity Hospital in 2009 had their waters broken.9

The acceleration of labour is a cornerstone of the ‘active’ management of women in labour. Active management is a set of obstetric protocols standardising the medicalisation of birth for efficient labour ward management, comprising early amniotomy and the administration of oxytocin by intravenous drip. The response to oxytocin is highly idiosyncratic. Its American manufacturers, Parke-Davis, advise that the response depends on the sensitivity of the individual woman and consequently recommend fetal scalp electrode monitoring lest contractions become too powerful or too prolonged either for the baby or for the mother. Likewise, the WHO warns that the acceleration of labour “should be performed with caution as the procedure carries the risk of uterine hyperstimulation, with the potential consequences of fetal distress and uterine rupture”.10

Clearly, if women are aware of these risks associated with induction of labour and its acceleration, some may consider them unacceptable. However, the institution relies on its staff to implement policy and on women to comply for its own effective functioning, leading practitioners to pressure or coerce women through risk inflation, threats or selective information provision as the following findings by the AIMSI Ireland survey demonstrate:

“I had to challenge the hospital on everything. Procedures and “policy” were proposed that were against HSE best practice, best practice in UK, US and most of Europe and that have been proven to have NO benefit to mother or baby and only bring increased risks.”

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“I had to fight tooth and nail not to be induced at 6 days over.. no medical reason to be induced. Just to suit induction days in hospital.”

“I felt angry at my full term appointment when i said I didn’t want to discuss induction until I was at least 14 days “over”. When i said I didn’t want a sweep on that day I was asked if I knew the risks involved in not intervening (stillbirth being one). Risks like infections from unnecessary sweeps weren’t mentioned.”

“The tests they did were as far as I was told compulsory and results were just told to me and options were not discussed, it was their way is best. When we questioned it we were told we were putting our babies life in danger.”

“You were made to feel a bad mother if you did not have all the tests.”

“Formally yes (consent was obtained), but I wasn’t in favour of being induced, it was never presented as an option but rather as a decision made on my behalf.”

“I repeatedly impressed my wish not to have oxytocin and this was disregarded and I was treated like I was being silly. I reluctantly agreed but I felt badgered into submission rather than consenting.”

“Benefits of procedures to hurry Labour up were told, risks of these procedures were not told. Benefits of waiting were never once told.”

“Requested c-section based on 2 previous traumatic births (incl 1 section) but was bullied into natural birth – best for baby.”

” I didn’t want to be induced but in (unit named) the policy was to induce when 10 days over; I didn’t agree with this policy but felt I had no choice but to comply”

“At every intervention I was threatened with catastrophic consequences if I refused such as ‘if you don’t have an episiotomy right now the baby won’t make it’…’if you don’t take antibiotics the baby might have cerebral palsy’”

“I was told by the midwife that I had to have my waters broken in order to get an epidural (I found out afterwards this is actually not hospital policy).”

“I felt that I could not say no to anything. You have to put all of your trust in the medical professionals. Sometimes they are wrong.”

“When a sweep was suggested at 39 weeks. I refused and then was convinced by doctor to let her do the sweep. Looking back I felt bullied and as I was tired I caved and consented to it”

“I felt I was lied to.”

“Consent was sought at all times but I felt pressure that the only option was to agree with what was proposed.”

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“I wasn’t given the opportunity, but I took it because no-one touches me without my consent. I’m one of the hundreds of thousands of women who has survived sexual assault, consent is a massive deal for me. As it should be for every single healthcare practitioner.”

2.4 Epidural anaesthesia

Increasing the power and frequency of contractions, the active management of women in labour in turn increases the demand for epidural anaesthesia as women strive to make labour more tolerable. Used in 47 per cent of births at the Rotunda11, and in 41 per cent at the Coombe12, epidural anaesthesia is associated with an increased risk of CS for foetal distress.13 This form of anaesthesia is often accompanied by continuous electronic fetal monitoring, thereby compounding the risk of CS in uncomplicated labour. A legislative and policy framework denying women the right to refuse medical interventional causing increased pain beyond their coping capacity leading to the need for epidural that carries these risks is a framework that significantly undermines the health and safety of the mother and baby.

2.5 The consequences for babies

In normal physiological labour, the baby has a natural capacity to adapt to reduced oxygen supply during uterine contraction, however, intervention that increases the power, duration and frequency of contractions undermines the baby’s capacity to cope with the birthing process.

CS is associated with almost double the risk of admission to a neonatal intensive care unit for seven or more days compared to babies born vaginally.14 At the National Maternity Hospital, where active management was first developed, 1 in 5 newborn babies are admitted to intensive care following birth.15 Recent research also points to latent risks of CS for chronic disease: children delivered by CS have a higher incidence of type 1 diabetes, obesity, and asthma.16

2.6 Breastfeeding

A substantial body of evidence over recent decades has demonstrated the benefits of breastfeeding for babies, mothers and society generally. Maternal benefits include faster involution of the uterus and lower risk of haemorrhage after birth, in addition to a lower lifetime incidence of type II diabetes, and breast and ovarian cancer.17 Associated infant health benefits include fewer childhood illnesses, lower blood pressure and cholesterol levels, lower prevalence of obesity, and improved intelligence as adults.18, 19 Reflecting these proven benefits, the WHO recommends that all infants should be breastfed exclusively for the first six months of life, and continue breastfeeding up to and beyond two years of age.20 The advice also states that, save for a small number of medical conditions, exclusive breastfeeding should be possible for the vast majority of mothers.

Breastfeeding rates in Ireland are well below these targets: 40.8 per cent of Irish-born mothers are breastfeeding at hospital discharge,21 a rate that is much lower than other European countries.22

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Research shows that compared to vaginal birth, women who deliver by CS are less likely to initiate breastfeeding, have a higher proportion of difficulties, and are more likely to discontinue before 12 weeks postpartum.23 This evidence shows the far-reaching health potential of repeal of the Eighth Amendment to enable women in childbirth to assert the right to refuse medical intervention.

2.7 Poor maternal mental health

Evidence has shown that degrading treatment and loss of dignity and control during birth contributes to postnatal post-traumatic stress disorder.24 Furthermore, the leading cause of direct maternal deaths occurring within a year after the end of pregnancy is suicide.25 In Ireland, prevalence rates of postnatal depression are reported to range up to 28.6 per cent.26 Poor maternal mental health can negatively affect the mother-infant relationship and infants’ neurodevelopment, as well as the wider family.27, 28 The elimination of degrading treatment and loss of dignity and control in childbirth is clearly critical.

2.8 The demand for choice

Two decades ago, in 1996, the WHO affirmed midwives as the most appropriate, and cost-effective caregivers in normal pregnancy and birth29, yet, Ireland significantly lags behind other countries in terms of choice in maternity care. All reports over recent decades on consumer views of maternity care in Ireland have consistently shown high levels of dissatisfaction with a system of care at odds with the needs of the healthy majority. Despite persistent demands for choice of midwifery models of care, the AIMS Ireland ‘What Matters to You’ survey showed 5.5 per cent of respondents had access to midwifery-led care. Furthermore, 91.7 per cent shared the view that women in general should have the choice of a freestanding birth centre, and 58.5 per cent said that they would personally choose a free standing birth centre if the service were available.30

Birth Centres have expanded globally since the 90s in response to their established benefits for healthy women and their babies, and cost-effectiveness, compared to obstetric units. In 2011, the Birthplace in England Research Programme31 published a ground-breaking report on the outcomes of maternity care across the country for ‘low risk’ healthy women. Commonly known as the Birthplace Study, outcomes across four maternity care settings were compared: the home, ‘free- standing’ Birth Centres, ‘along-side’ midwifery-led units (MLUs) integrated with maternity hospital services, and obstetric units.

The findings with respect to Birth Centres showed that for all women – including women having their first baby – no differences were found in perinatal outcomes compared to obstetric units. The odds of having Caesarean or instrumental birth, or surgical incision of the birth canal (episiotomy) were “significantly and substantially” reduced for women who planned birth in Birth Centres compared to obstetric units. Increased levels of satisfaction for women and increased job satisfaction for midwives was also associated with Birth Centres. The probability of transfer to an obstetric unit during labour or immediately after birth was reduced in Birth Centres compared to the home or MLUs, a finding consistent for both first-time mothers and those having their second or subsequent baby. On economic analysis, Birth Centres led to significant cost savings for the NHS

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when compared to obstetric units. Representing the most reliable evidence to date on birth place outcomes, the Birthplace Study provides compelling evidence on safety, reduced intervention including CS, increased satisfaction and cost savings – all of which supports women’s demands in Ireland for choice in childbirth. Yet, the recently published National Maternity Strategy 2016-202632 stipulates, without justification, that no Birth Centres are to be developed in Ireland. This demonstrates the direct impact by the Eighth Amendment on the demand for choice, which ensures that women’s decision-making is not a primary factor in establishing her range of choices in pregnancy and childbirth.

2.9 Private profits

Obstetrics can be a lucrative business, as the Irish experience demonstrates. Public and private obstetric care operates side by side on the same site. The market for private maternity care is substantial, and private obstetric fees is additional to their state salaries. Private medical care is heavily subsidised by the state, and obstetricians have unlimited access to the full range of public hospital facilities, including midwifery time, without charge, for their private patients. Given these circumstances, obstetric economic self-interests is a key factor in the lack of provision for choice in childbirth, supported and promoted by the Eighth Amendment in its constitutional enshrinement of a status quo where women’s decision-making is not given due weight or consideration.

3. THE EIGHTH AMENDMENT

A recent decision of the UK Supreme Court in Montgomery v Lanarkshire Health Board (2015)33, addressed in more detail below, the judge writes: “Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being”. In Ireland, because of the Eighth Amendment, those days are very much with us, evidenced by the extreme incursions into the personal and reproductive autonomy and sense of security suffered by respondents to the AIMSI survey.

3.1 The law on overruling pregnant women’s choices

When a pregnant woman in Ireland makes an informed refusal to treatment recommended by her medical team, and there are perceived implications for the ‘life or health’ of her unborn baby, the National Maternity Strategy32 and the National Consent Policy1 state that, under the Eighth Amendment, legal advice should be sought.

As a result of this policy, the High Court has been asked to intervene in a number of cases in which women have made medical decisions in late pregnancy which, their doctors argued, placed their unborn baby’s life or health at risk. The cases of PP v. HSE34 and Miss Y35 suggest that where the risk to an unborn baby’s life approaches certainty, even in relatively early pregnancy, highly invasive treatment may be used to preserve that life. The Supreme Court has held that the Eighth Amendment means that, in these cases, none of the mother’s constitutional rights or interests,

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besides her own right to life, can be weighed in the balance in assessing whether invasive treatment is justified. The position is less clear, but potentially equally troubling, where the risk to the unborn baby’s life or health is less certain.

In HSE v. B36 the High Court recently outlined the applicable legal principles:

  1. (i)  Autonomy: A pregnant woman is exercising her constitutionally-protected parental autonomy when she makes a medical decision which may affect the health or life of her unborn child. As such, the State can only intervene to protect the unborn in exceptional circumstances. A remote risk to the unborn baby’s life or health will not justify intervention.
  2. (ii)  Proportionality: The Court will take account of the type of intervention required to reduce or remove the risk to the unborn’s life or health, and weigh it against the likely effect on the woman. The HSE sought an order compelling Ms. B to undergo a Caesarean section, and allowing them to use ‘reasonable or proportionate force and/or restraint’ to ensure that she could not refuse. Subjecting a woman to invasive surgery is a serious infringement of her human rights. The Court noted that the Eighth Amendment only requires the State “as far as practicable” to defend the right to life of the unborn, and found that a Caesarean section was a disproportionate intervention given that the risk to the unborn in this case was very low. It was therefore an impracticable step.

HSE v. B36 makes clear that women cannot be compelled to accept medical treatment in their unborn baby’s interest where (i) the risks to the unborn from refusal are low and (ii) the proposed treatment is very invasive. However, it does not clarify precisely when women can be compelled to accept treatment short of surgery, or exactly how high the risk to the baby must be before serious unwanted medical, or other state interventions can be justified. This lack of clarity generates serious difficulties for women in negotiating their maternity care.

3.2 Uncertainty and coercion

The Eighth Amendment is inherently ambiguous in its meaning and scope and the Courts have not been able to fully clarify its content. In the context of abortion provision, medical practitioners’ inability to confidently interpret the constitution has had damaging consequences for women’s human rights. As already shown, the undue uncertainty surrounding the Eighth Amendment’s application to refusal of medical treatment in childbirth also has damaging consequences for women’s human rights in childbirth.

In Ternovsky v. Hungary,37 the European Court of Human Rights noted that ‘the right to choice in matters of child delivery includes the legal certainty that the choice is lawful and [that women or health professionals are] not subject to sanctions, directly or indirectly.’ Every pregnant woman is entitled to ‘a legal and institutional environment that enables her choice, except where other rights render necessary the restriction thereof.’ That environment is not present in Ireland due to the Eighth Amendment.

While the National Maternity Strategy32 emphasises the importance of communication with the refusing woman, this is not borne out by our experience. Women have been threatened with court

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order as soon as they express a desire to refuse treatment These experiences show that the inherent ambiguity of the Eighth Amendment has generated sets of ‘working interpretations’ built on the assumption that the duty to protect unborn life justifies expansive pre-emptive control of women’s birthing choices. Whether or not these ‘working interpretations‘ are well-intentioned by the individuals involved, they contribute to a culture of coercion around childbirth in Ireland within which:

  • women’s capacity to plan childbirth in an informed way is undermined
  • arbitrary violations of women’s rights to private life and bodily integrity are normalised
  • the family life which women share with their partners, other children and new baby isbadly disrupted.As already noted, it is not clear whether the Courts would support these ‘working interpretations’ of the Eighth Amendment. In our experience, however, they go unchallenged in practice because rather than contest them, women in the vulnerable position of pregnancy or labour understandably submit under pressure. As such, they perceive that the Eighth Amendment is used cynically to punish non-compliance with medical advice, and to justify interventions which instrumentalises them as mere child-bearers.The gender bias underpinning the use of threats and coercion to enforce medical intervention is not subtle. It is self-evident that a person of sound mind cannot be forced to undergo a medical procedure (such as a kidney transplant). This principle applies even if the procedure would save the life of another person and even if that other person were their child. Pregnant women, however, are expected to sacrifice their health and dignity, and even potentially their lives, in the name of having a healthy baby as defined by others.

4. FOUNDATION IN HUMAN RIGHTS FOR HIGH-QUALITY SAFE MATERNITY CARE

Care providers have a critical role to play in ensuring that women emerge from childbirth physically and psychologically healthy and are able to develop a responsive and nurturing relationships with their children. The foregoing evidence of the spiral of intervention with its monitoring-pain-epidural- CS dynamic that generates and perpetuates a culture of disrespect, bullying and coercion of pregnant and birthing women shows an impact of the Eighth Amendment which is far removed from protecting the health and life of the unborn for the vast majority of women who choose to continue their pregnancy. Rather, it serves the needs of the institution and medical profession over the interests of women in giving birth safely, effectively achieved by denying their right to refuse medical intervention. It is imperative that the Eight Amendment be repealed, not only for health and safety in abortion but for the health and safety of all pregnant women and their babies.

The assessment of high quality, safe maternity care goes beyond measures of morbidity and mortality to encompass the quality of interpersonal aspects of care received by women seeking maternity services. In recognition that childbirth is a particularly vulnerable time for women, the World Health Organisation (WHO) drew global attention in 2014 to women’s mistreatment and associated human rights violations during childbirth, and to the imperative to prevent and eliminate disrespect and abuse of women during facility-based childbirth for the best possible outcomes for

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the mother and baby.38 Referring to the phenomenon of disrespect and abuse in childbirth as “an important public health and human rights issue”, the WHO endorsed the provision and experience of care as equal determinants of safe, high-quality maternity care, making the key point:

“Rights-based approaches to organizing and managing health systems can facilitate the provision of respectful, quality care at birth”.

Endorsed by more than 90 international civil society and health professional organizations, including the International Federation of Gynaecology and Obstetrics (FIGO), the International Confederation of Midwives, and professional associations representing paediatricians, the WHO statement affirms:

“every woman has the right to the highest attainable standard of health, which includes the right to dignified, respectful health care throughout pregnancy and childbirth.”

Approving guidelines for ‘Mother-Baby Friendly Birthing Facilities’, FIGO reiterated its support for the WHO position by affirming women’s “right to be treated with dignity and respect” and called for women’s protection from “unnecessary interventions, practices, and procedures that are not evidence-based, and any practices that are not respectful of their culture, bodily integrity, and dignity.”39 The Lancet also called for a “shift in perspective” to assess maternal health services based on “what women need and want in pregnancy and childbirth.”40

4.1 Obstetric violence

The far-reaching public health implications of human rights violations in childbirth was further highlighted in 2015, as United Nations and regional human rights experts, the rapporteur on the rights of women of the Inter-American Commission on Human Rights, and the special rapporteurs on the rights of women and human rights defenders of the African Commission on Human and Peoples’ Rights issued a joint statement explicitly calling on states to address “acts of obstetric and institutional violence”.41

Latin America, where many countries have relatively newer human rights-based constitutions and bodies of law, has taken the lead in creating legal structures addressing the issue. Venezuela was one of the first jurisdictions to create a statutory right of action recognizing obstetric violence as a form of gender-based violence.42 The law in Venezuela defines obstetric violence as:

“…the appropriation of the body and reproductive processes of women by health personnel, which is expressed as dehumanized treatment, an abuse of medication, and to convert the natural processes into pathological ones, bringing with it loss of autonomy and the ability to decide freely about their bodies and sexuality, negatively impacting the quality of life of women.”

A number of examples are provided, including inattention to obstetric emergencies, birth in the lithotomy (legs strapped in stirrups) position, needless separation of mother and child, and augmentation of labour or caesarean delivery without consent.

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Argentina and ten Mexican states also recognize obstetric violence as a form of violence against women; the states of Chiapas, Guerrero, and Veracruz even impose criminal penalties on offenders. These laws provide a range of remedies, including administrative complaints, specialized medical arbitration, and complaints before federal and state human rights commissions.

In the UK, the NHS is also increasingly using a human rights based approach not only to improve patient experience but as means to ensure patient safety. In response to a cluster of maternal deaths at Queen’s Hospital Romford in 2011, blamed in part on poor culture and disrespectful behaviour amongst staff, mandatory training on human rights was introduced for all maternity care providers. The outcomes achieved included a measurable impact on the quality of care, reduced complaints, improved communication and staff behaviour.43

5. INFORMED DECISION-MAKING AND CHOICE

Creating the foundation for a woman-centred maternity service that is truly fit for purpose, the human rights principles of dignity, autonomy and self-determination reinstate the woman as the central agent in her maternity care. These values are most powerfully articulated in the imperative to treat a person as an end in their own right and not a means to an end. The relevance of this is particularly clear in maternity care where a woman risks being viewed as a means for the creation of life rather than as a person worthy of respect in herself.

Respect for a woman’s basic human right to dignity and self-determination is predicted on respect for her autonomous informed decision-making, choices, feelings and preferences about all aspects of her care and treatment in childbirth, including how, where and with whom she gives birth. It means that caregivers who protect women’s dignity treat them as capable of making their own decisions about their child’s birth, and respect their perception of what it means for them to thrive as human beings. Such caregivers respect women’s right to freedom from inhumane and degrading treatment, their right to informed consent and refusal, and their right to non-discrimination.

Caregivers who listen to women, who provide them with comprehensive and accurate evidence- based information, and who respect their choices make a fundamental contribution to a safe maternity service. As the investigations into Ireland’s failing maternity services in Galway, Portlaoise, and Drogheda have repeatedly shown, lack of respect for women’s dignity has gone hand in hand with clinical and systemic failings that have compromised the safety of mothers and babies.

The UK Supreme Court in Montgomery v Lanarkshire Health Board (2015)33 shows the interdependence of safety and respect for human rights in maternity care. Mrs Montgomery’s doctor treated her with condescension and withheld important information about the risks of vaginal birth for diabetic mothers. As a consequence, her right to make a safe and fully informed choice was denied to her and her baby was damaged during birth. The Court held that a woman ‘is entitled to take into account her own values, her own assessment of the comparative merits of’ a proposed course of action in childbirth. She is entitled to decide that it is acceptable to take certain risks with her health and that of her child, even if her doctor considers them unacceptable. Accordingly, the Court found that clinicians must adopt a woman-centred approach to advice-giving during pregnancy and childbirth. It deprecated the use of consent forms and information leaflets and

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held that the law required clinicians to have detailed and personalised discussions with women that enabled them to make their own decisions on the basis of information about ‘all material risks’. The Court explained that it was necessary to impose legal obligations of this sort, so that:

“… even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires”.

6. CONCLUSION

Irish society rightfully attaches a high value to motherhood and recognises the intense vulnerability of women during this time. Any interpersonal care that is disrespectful and abusive in nature to women before, during, and after birth is an infringement of a woman’s inviolable right to respect, dignity and choice that extends from a human rights framework. All childbearing women need and deserve respectful care and protection of their autonomy and right to self‐determination; this includes special care to protect the mother ‐ baby pair as well as marginalized or highly vulnerable women such as adolescents, ethnic minorities, and women living with physical or mental disabilities. Most importantly, as the respondents to the AIMSI survey bear out, disrespectful care is an infringement of women’s human rights to non-discrimination, liberty and security of the person, reproductive health and autonomy, and freedom from cruel, inhuman, and degrading treatment. Vindicating these rights means that women cannot be subjected to medical treatment without their full, free and informed consent. It also means respecting competent pregnant women’s medical decisions, even where they conflict with medical advice.

Any forced intervention or treatment on a pregnant woman who has made an informed decision that the associated risks outweigh the benefits for her and her baby is an intolerable act. But forced intervention that takes place in a setting where women hold less power than doctors, in a society where women’s capacity for pregnancy has been historically used to sanction their exclusion from full citizenship, is more than a simple battery. It is a form of gender-based violence, increasingly recognized around the world as obstetric violence.

The articulation of obstetric violence in legislation – specifically within the ambit of women’s human rights to health, equality, and freedom from violence – shows an understanding of the causes and consequences of abuses in childbirth that far exceeds that in Ireland to date. The work of eliminating gender-based violence in Irish maternity care must include legal frameworks that invoke state and institutional responsibility for ensuring respectful care in birth. Repeal of the 8th Amendment is a necessary and critical first step to enable that work to begin. Article 40.3.3. must be removed completely from the Constitution in order to respect the lives, health and choices of pregnant, and there must be no replacement since any restriction will render the current position unchanged for women in continued pregnancy.

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REFERENCES

  1. (1)  National Consent Advisory Group. National Consent Policy. Health Service Executive 2014 (Revised May 2016): http://www.hse.ie/eng/about/Who/qualityandpatientsafety/National_Consent_Policy/cons enttrainerresource/trainerfiles/NationalConsentPolicyM2014.pdf
  2. (2)  World Health Organisation. Maternal Mortality Factsheet. Nov 2016.WHO, Geneva
  3. (3)  Healtcare Pricing Office. Perinatal Statistics Report 2014. HSE/Healthcare Pricing Office 2016
  4. (4)  Luz Gibbons, José M. Belizán, Jeremy A Lauer, Ana P Betrán, Mario Merialdi and Fernando Althabe. ‘The Global Numbers and Costs of Additionally Needed and Unnecessary Caesarean Sections Performed per Year: Overuse as a Barrier to Universal Coverage’. World Health Report (2010) Background Paper, 30
  5. (5)  Souza JP, Gulmezoglu A, Lumbiganon P, Laopaiboon M, Carroli G, Fawole B, et al. Caesarean section without medical indications is associated with an increased risk of adverse short- term maternal outcomes: the 2004-2008 WHO Global Survey on Maternal and Perinatal Health. BMC Medcine 2010;8:71; doi:10.1186/1741-7015-8-71
  6. (6)  Alfirevic Z, Devane D, Gyte GML. Continuous cardiotocography (CTG) as a form of electronic fetal monitoring (EFM) for fetal assessment during labour. Cochrane Database of Systematic Reviews 2013, Issue 5. Art. No.: CD006066. DOI: 10.1002/14651858.CD006066.pub2
  7. (7)  Combe Women and Infants University Hospital. Annual Clinical Report 2014
  8. (8)  Smyth RMD, Markham C, Dowswell T. Amniotomy for shortening spontaneous labour. Cochrane Database of Systematic Reviews 2013, Issue 6. Art. No.: CD006167. DOI: 10.1002/14651858.CD006167.pub4
  9. (9)  http://www.bump2babe.ie/national_maternity_hospital/statistics/ [accessed December 2016]

(10)WHO (2014) Recommendations for Augmentation of Labour. World Health Organization (11)Rotunda Hospital. Annual Clinical Report 2014 (12)Coombe Hospital. Annual Clinical Report 2014

(13)Anim-Somuah M, Smyth RMD, Jones L. Epidural versus non-epidural or no analgesia in labour. Cochrane Database of Systematic Reviews 2011, Issue 12. Art. No.: CD000331. DOI: 10.1002/14651858.CD000331.pub3

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(14)José Villar et al, ‘Maternal and neonatal individual risks and benefits associated with caesarean delivery: multicentre prospective study’. BMJ published online 30 Oct 2007; doi:10.1136/bmj.39363.706956.55

(15)National Maternity Hospital. Annual Report 2014

(16)Blustein J, Jianmeng L, ‘Time to consider the risks of caesarean delivery for long term child health’. BMJ 2015; 350 doi: http://dx.doi.org/10.1136/bmj.h2410 (Published 10 June 2015)

(17)Ip S, Chung M, Raman G, Chew P, Magula N, DeVine D, Trikalinos T, Lau J: Breastfeeding and maternal and infant health outcomes in developed countries. Evid Rep Technol Assess (Full Rep) 2007(153):1-186. http://www.ncbi.nlm.nih.gov/pubmed/17764214. [PMC free article] [PubMed]

(18)Horta BL, Bahl R, Martines JC, Victora CG: Evidence on the long-term effects of breastfeeding: Systematic reviews and meta-analyses. In. Geneva, Switzerland: World Health Organization; 2007

(19)Victora CG, Horta BL, Loret de Mola C, Quevedo L, Pinheiro RT, Gigante DP, Goncalves H, Barros FC. Association between breastfeeding and intelligence, educational attainment, and income at 30 years of age: a prospective birth cohort study from Brazil. Lancet Glob Health. 2015;3(4):e199–205. doi: 10.1016/S2214-109X(15)70002-1. [PMC free article] [PubMed] [Cross Ref]

(20)World Health Organization. Baby-Friendly Hospital Initiative: Revised, updated and expanded for integrated care. Section 1: Background and implementation. Geneva: United Nations Children’s Fund; 2009

(21)Healtcare Pricing Office. Perinatal Statistics Report 2014. HSE/Healthcare Pricing Office 2016

(22)EURO-PERISTAT PROJECT, SCPE EUROCAT AND EURONEOSTAT, 2013. European Perinatal Health Report

(23)Hobbs AJ et al. The impact of caesarean section on breastfeeding initiation, duration and difficulties in the first four months postpartum. BMC Pregnancy Childbirth 2016; 16:90 doi: 10.1186/s12884-016-0876-1: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4847344/

(24)Beck, C Birth Trauma. Nursing Research, 2004; 53 (1): 28-35

(25)Manktelow BN, Smith LK, Seaton SE, Hyman-Taylor P, Kurinczuk JJ, Field DJ, Smith PW, Draper ES, on behalf of the MBRRACE-UK Collaboration. MBRRACE-UK Perinatal Mortality Surveillance Report, UK Perinatal Deaths for Births from January to December 2014. Leicester: The Infant Mortality and Morbidity Studies, Department of Health Sciences, University of Leicester. 2016

(26)Leahy-Warren, P. and G. McCarthy (2007). Postnatal depression: Prevalence, Mothers’ perspectives, and treatments. Archives of Psychiatric Nursing 21(2): 91-100

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(27)Martins, C. (2000). ‘Effects of early maternal depression on patterns of infant–mother attachment: A meta-analytic investigation’. Journal of Child Psychology and Psychiatry and Allied Disciplines; 41(6):737-748.

(28)Beck, C. (1999) ‘Maternal depression and child behaviour problems: A meta-analysis’. Journal of Advanced Nursing. 29(3):623-629.

(29)WHO. (1996) Care in Normal Birth: a practical guide. Document WHO/FRH/MSM/96.24, Division of Family and Reproductive Health. Geneva: Author.

(30)The Association for Improvements in the Maternity Services in Ireland (AIMS Ireland) March 2014. What Matters To You Survey 2014: http://aimsireland.ie/what-matters-to-you-survey- 2015/

(31)Birthplace in England Research Programme: www.npeu.ox.ac.uk/birthplace

(32)Department of Health. Creating a Better Future Together: National Maternity Strategy 2016- 2026

(33)Montgomery v Lanarkshire Health Board [2015] UKSC 11, paragraph 93. Available:

http://bit.ly/1gb5Zyl

(34)[2014] IEHC 622; the 8th did not require subjection of a woman’s body to somatic care after brain-death in order to preserve her pregnancy where the foetus could not be born alive. The court suggests that where the foetus is viable, more extensive treatment may be justified.

(35)Ms. Y unsuccessfully sought life-saving abortion under the Protection of Life During Pregnancy Act, 2013. Ms. Y was pregnant and suicidal and, arguably, accordingly there was a risk to the foetus’ life. The Act contemplates that abortion may only be provided where it is the ‘only’ means of addressing the threat to the pregnant woman’s life. The High Court granted orders for Ms. Y’s forcible feeding and hydration, and for a compulsory Caesarean section

(36)HSE V B [2016] IEHC 605

(37)Ternovsky v. Hungary ECHR 14 December 2010, the notion of a right to become a parent involves some measure of freedom as it its exercise; cf Dubska ECHR 15 November 2016

(38)World Health Organization, WHO Statement: The prevention and elimination of disrespect and abuse during facility-based childbirth (Geneva: WHO, 2014)

(39)FIGO. Mother-baby friendly birthing facilities. International Journal of Gynecology and Obstetrics. 128 (2015) 95-99. Available at: http://whiteribbonalliance.org/wp- content/uploads/2015/03/MBFBF-guidelines.pdf

(40)Freedman LP, Kruk ME. Disrespect and abuse of women in childbirth: challenging the global quality and accountability agendas . The Lancet, Vol 384, No. 9948, e42–e44, 20 September

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2014. Available at: http://www.thelancet.com/journals/lancet/article/PIIS0140- 6736(14)60859-X/fulltext?rss%3Dyes

(41)African Commission on Human and People’s Rights. Joint Statement by UN human rights experts, the Rapporteur on the rights of women of the Inter-American Commission on human rights and the Special Rapporteurs on the rights of women and human rights defenders of the African Commission on human and peoples’ rights (September 2015). Available at http://www.achpr.org/news/2015/09/d192/

(42)Pérez, R. Obstetric violence: a new legal term introduced in Venezuela. International Journal of Gynecology & Obstetrics, 111 (3) (2010), pp. 201–202

(43)Ukoko, F. Respectful care included in training. White Ribbon Alliance (June 2013). Available at: http://bit.ly/1T5uzih].

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Position on Abortion

Download the PDF here: Position on Abortion

Introduction

Midwives for Choice believes that abortion is a healthcare matter, not a legal matter. We do not advocate for or against abortion. Rather, we recommend that abortion procedures be governed by the same robust regulatory and ethical frameworks which govern all other healthcare procedures in Ireland. This would mean that decisions on treatment would occur in the same way that any other clinical decisions are reached, through discussion between the woman and her healthcare provider.

What is the current law on abortion?

A woman who ends her own pregnancy without the permission of doctors can be sentenced to fourteen years in prison under Irish legislation. Midwives for Choice believes that women should be trusted to make their own decisions about their own pregnancies. No woman should face prison for inducing a miscarriage, and no healthcare provider should be prosecuted for providing safe abortion care to a woman who requests it.

Both sides of the highly contentious abortion debate in Ireland support the decriminalisation of abortion. Evidence shows that taking abortion out of the criminal law does not change the numbers of women having abortions. With both sides in agreement on the matter, the Protection of Life During Pregnancy Act 2013 must be amended to decommission criminalisation.

Inscribed in the Constitution, the Eighth Amendment which gives recognition to the equal right to life of the pregnant woman and foetus governs abortion laws in Ireland. The Protection of Life During Pregnancy Act 2013 makes provision for the onerous punishment of a maximum fourteen years imprisonment for having or providing an abortion other than in circumstances described as a real and substantial risk to the life of the mother, including a risk arising from a threat of suicide. In no circumstances is abortion a woman’s choice and no woman has the right to end a pregnancy in Ireland. Instead, the Act places decision-making about abortion with the medicalprofession, not women, by making it a minimum requirement that two doctors decide whether they think a woman should be allowed to end her pregnancy.

Is the legislation effective in banning abortion in Ireland?

Ireland’s reliance on criminal law to punish women has not been an effective deterrent: any woman who feels desperate enough to end her own pregnancy will find a way to do so. As a consequence of criminalisation, Irish abortion has become a global phenomenon. Women living in Ireland travel to a wide range of places, in particular to Great Britain, to avail of abortion. According to the numbers giving an Irish address, a rate of more than ten women per day avail of abortion in British and Dutch clinics alone. In addition to those who do not disclose their Irish address to British and other international clinics, unknown numbers avail of bedroom abortion in Ireland through pills purchased on the internet. In 2014 alone, one thousand and seventeen abortifacient pills making their way into Ireland were seized by customs. The accessibility of this medication means the risk of women breaking the law is now greater than ever before.

Does the legislation harm women?

The Protection of Life During Pregnancy Act 2013 prevents the provision of the best possible medical care, thereby gravely undermining the health and safety of women. Creating a barrier that delays access to abortion, the law does not concur with the evidence which shows that the earlier in pregnancy an abortion is performed the lower the risk of complications. At approximately twenty- five safer than childbirth, abortion is a safe health care procedure, yet unsafe abortion continues to be one of the five major causes of maternal mortality globally. Criminalisation of abortion drives women to access abortion services which are neither safe nor legal, and which may prove harmful or even fatal. Access to safe abortion-related services can almost eliminate maternal deaths due to unsafe abortion. Decriminalisation of abortion is therefore essential so that women and girls have timely access to safe abortion-related services to reduce the possibility of the associated health risks and to ensure the regulation of abortion is managed in the same manner as all other women’s health care procedures.

Pregnant women also need protection against bodily assault which results in the miscarriage of a foetus. The process of decriminalisation in other countries has shown that it is possible to ensure existing criminal law offences address such acts. As part of abortion law reform in Victoria, Australia, an amendment was made to the Crimes Act 1958 to clarify that the assault of a pregnant woman which causes the miscarriage of a foetus would fall within the definition of a ‘serious injury’ to the woman, carrying a sentence of up to twenty years imprisonment. Midwives for Choice believes that a similar amendment should be made in Ireland to ensure that the law fully recognises the harm caused to pregnant women by such acts.

If abortion is decriminalised in Ireland, would the number of abortions increase?

There is no evidence that decriminalisation would lead to an increase in Ireland’s current numbers accessing abortion. No woman aspires to experience an unwanted pregnancy and undergo an abortion; on the contrary women try very hard to avoid unplanned pregnancy. Decriminalisation would not change that. Other jurisdictions such as Canada and Australia have removed abortion from criminal law without experiencing an increase in the rate of abortion.

What would decriminalisation mean for the abortion time limit?

No abortion time limit would be applicable in legislation. The vast majority of abortions worldwide take place during the first trimester of pregnancy and statistics show that late-term abortions are not chosen by women. In Canada where there is no legal limit placed on abortion, some 90 percent of abortions in 2014 were carried out in the first twelve weeks of pregnancy while less than 1 percent were carried out after twenty weeks. In England and Wales where provision for legal abortion is made up to twenty-four weeks, 92 per cent of abortions in 2015 were conducted before thirteen weeks gestation while 2 percent were conducted after twenty weeks. One of the main reasons for abortions after twenty weeks is lack of easy access to services.

There is no doubt that abortion post viability (from 24 weeks gestation) raises particular moral concerns for many people but there is no evidence that removing criminal sanctions leads to an increase in later terminations. Women do not wish to undergo later procedures, and doctors are unwilling to provide them outside of exceptional circumstances. This has been the experience in jurisdictions where abortion has been removed from the criminal law. Prior to 1990 in Scotland there was no abortion time limit. Despite the legality, there was not a greater proportion of late term abortions performed.

In England and Wales, 0.1% of abortions are conducted after twenty-four weeks gestation. These are carried out in hospital in cases of severe risk to the pregnant woman’s life or health, or in cases of foetal anomaly. Thus these are overwhelmingly cases of wanted pregnancies where difficult decisions have to be made. The reality of abortion at this stage is via an injection of potassium into the foetal heart and subsequent induction of labour and birth. Post-viability dilation and evacuation of foetal products is a rare event, likely to be done in cases of extreme and urgent threat to a pregnant woman’s life. Termination of pregnancy post-viability comprising induction of labour on maternal health grounds may lead to foetal survival depending on gestation. Midwives for Choice believes that decision-making on the management of these rare and challenging clinical cases must rest with the families in consultation with their health care team, out of the realm of criminal sanctions.

Who’s decision is it anyway?

Women’s informed choice is pivotal to high-quality and responsive sexual, reproductive and maternity care services, including choosing whether or not to proceed with a pregnancy. The concept of respect for human dignity and for women as persons with full human rights defines the unique role of midwives in promoting the health of childbearing women and their families. Women have the right to exercise control over their fertility and plan their families in accordance with their wishes. Accordingly, the International Confederation of Midwives (ICM) affirms that midwives must recognise the right of a competent and informed pregnant woman to make her own health care choices, including to end or continue her pregnancy, and they must provide information and counselling services according to the woman’s needs. Likewise, the Nursing and Midwifery Board of Ireland affirms the woman as the primary decision-maker in her care who has the right to evidence- based information that helps her to make her own decisions.

Contrary to the values and ethics of midwifery, the Protection of Life During Pregnancy Act 2013 denies a woman the right to choose for herself to have an abortion. It places decision-making on abortion firmly with the medical profession: two doctors at minimum must decide whether the woman meets the criteria laid out in the Act. Midwives for Choice believes that in accordance with the values and ethics at the heart of midwifery, women must be respected and trusted to make their own decisions about their own pregnancies. To compel a woman to endure pregnancy and childbirth unless doctors give her legal authorisation to have an abortion is to deny her the fundamental right to control her own body, plan her own family and determine her own life course.

If criminalisation isn’t effective, can we otherwise limit the uptake of abortion?

The recognition of abortion as a healthcare matter as opposed to a legal matter maximises the prevention of abortion. The Netherlands legislated for abortion on terms that respected women’s autonomy in 1980. Building on their policy commitment to midwifery-based care in pregnancy and childbirth at community level, they took a strong primary healthcare organisational approach to integrate sexual and reproductive health services in recognition of the need for support and protection along the entire range of women’s sexual and reproductive lives. The approach saw the development of abortion services and management of unsafe abortion complications. It also saw the development of related services including comprehensive family planning services; the prevention and treatment of infertility, reproductive tract infections, sexually transmitted diseases and other reproductive health conditions; and information, education and counselling on human sexuality, reproductive health and responsible parenthood. Furthermore, it embraced crucial work on sex and sexuality education beginning in the very first years of schooling and carried on through to secondary schooling. The outcome of the Dutch commitment, seen over a long period by now, is a very low rate of abortion compared with European and international data, and a very low rate of teenaged mothers compared with the EU average. Midwives for Choice advocates repeal of the Eighth Amendment and its replacement by the most expansive legal and policy framework based on the international evidence of effective abortion prevention and management, consistent with international human rights standards.

Is abortion part of the role of the midwife?

In accordance with the definition of the midwife, the International Confederation of Midwives articulates a vision of abortion and post-abortion care integrated into the full continuum of midwifery care—from sexual and reproductive health through pregnancy, birth and postnatal care. Affirming that a woman who seeks or requires abortion-related services is entitled to be provided with such services by midwives, the International Confederation of Midwives stipulates that such care is within the role of the midwife as defined by the laws and policies of her/his country.

Midwives play a key role in preventing unnecessary injuries and deaths from unsafe abortion by the provision of contraception, safe abortion and post-abortion care. The facilitation of abortion-related services including information provision, and physical and psychological care and support during and after miscarriage or abortion, is an essential competency for basic midwifery practice. Where well-

educated skilled midwives are authorised to do so, evidence shows their provision of essential reproductive health services including prescription, dispensing, furnishing or administering drugs (however authorised to do so in the jurisdiction of practice) in dosages appropriate to induce medication abortion, and performance of manual vacuum aspiration of the uterus up to twelve completed weeks of pregnancy, results in the decline of maternal mortality.

Can midwives decline to participate in abortion?

The 2013 Protection of Life During Pregnancy Act makes provision for the statutory right of all healthcare staff to conscientious objection to participation in abortion. Midwives with a conscientious objection to abortion may not impose their views on those who do not share them, however, they may explain their views to the woman if invited to do so. The Nursing and Midwifery Board of Ireland has requested that a midwife who has a conscientious objection based on religious or moral beliefs informs the woman, her line manager and employer as soon as possible to ensure alternative arrangements can be made to protect the woman. Midwives are obligated to provide care for women when there is a risk to life regardless of a conscientious objection until they are relieved of their duties.

Midwives for Choice believes that:

• Women should have equitable and timely access to all aspects of sexual and reproductive health care. Access to safe abortion services is a fundamental health care issue for women wherever they live.

• Every woman should have control over her own body and her fertility.

• Every woman should have the right to exercise choice over all aspects of her reproductive health care, including whether to have a baby or not.

• Every woman has the right to be given the necessary information to make an informed choice regarding her decision as to the continuation of pregnancy or not.

• Every woman has the right to be given good quality information, advice and support in a timely manner to make an informed choice regarding the opportunities provided within the law to terminate pregnancy.

• Abortion should be decriminalised and regulated in the same way as all other procedures relating to women’s health care.

• The Eighth Amendment should be repealed and replaced by the most expansive legal and policy framework based on international human rights standards and scientific evidence of effective abortion prevention and management.

• It is within the scope of midwifery practice for midwives to work with women who are considering whether to terminate their pregnancy and who have made the decision to terminate their

pregnancy. Midwifery practice must always comply with the legal framework relevant to the provision of such services.

• The rights of midwives to hold a position of conscientious objection, as described in the Protection of Life During Pregnancy Act 2013, should continue to be recognised but should only apply to direct involvement in the procedure of terminating pregnancy. Midwives with a conscientious objection to abortion must not impose their views on those who do not share them.

• If midwives are to be advocates for women then they must advocate for choice on all aspects of their reproductive care. This is not about being for or against abortion; it is about being for women and respecting their choices about their bodies in the interest of their health and safety.

• Midwifery practice must always comply with the legal framework relevant to the provision of services for the termination of pregnancy.

References and Resources

Abortion Rights Coalition of Canada (2016) Statistics – Abortion in Canada. ARCC: http://www.arcc- cdac.ca/backrounders/statistics-abortion-in-canada.pdf

British Pregnancy Advisory Service (2015) Abortion: Trusting women to decide, and doctors to practise: www.bpas.org.uk

Department of Health (2016) Abortion Statistics, England and Wales: 2015 Summary information from the abortion notification forms returned to the Chief Medical Officers of England and Wales. London, DOH: www.gov.uk/government/uploads/system/uploads/attachment_data/file/529344/Abortion_Statisti cs_2015_v3.pdf

Foster, D.G. & Kimport, K. (2013) Who Seeks Abortions at or after 20 Weeks? Perspectives on Sexual and Reproductive Health, 45(4):210–218, doi: 10.1363/4521013

Ganatra, B. (2014) From Concept to Measurement: Operationalizing WHO’s Definition of Unsafe Abortion. Bulletin of Wold Health Organization, 92:155

Gans Epner, J.E., Jonas, H.S., Seckinger, D.L. (1998) Late-term abortion. Journal of the American Medical Association, 280 (8), 724-729

Global Health Workforce Alliance (GHWA) (2013) Mid-level health workers for delivery of essential health services: A global systematic review and country experiences. Geneva, Switzerland: World Health Organization

Hardon, A (2003) Reproductive health care in The Netherlands: would integration improve it? Reprod Health Matters, May; 11(21):59-73

International Confederation of Midwives (2010) Core Document: Essential Competencies for Basic Midwifery Practice (Amended 2013)

Ki-moon, B. (2010) Global strategy for women’s and children’s health. Geneva, Switzerland: Partnership for Maternal Health, Newborn, and Child Health

PMNCH (2011) Essential interventions, commodities and guidelines for reproductive, maternal, newborn and child health: A global review of the key interventions related to reproductive, maternal, newborn and child health. Geneva, Switzerland: Partnership for Maternal Health, Newborn, and Child Health

Renner R, Brahmi D, Kapp N (2013) Who can provide effective and safe termination of pregnancy care? A systematic review. BJOG 120:23-31

Royal College of Midwives (2016) Position Statement Abortion: www.rcm.org.uk

Royal College of Obstetricians and Gynaecologists (2010) Termination of Pregnancy for Fetal Abnormality in England, Scotland and Wales. Report of a Working Party. London, RCOG: www.rcog.org.uk/globalassets/documents/guidelines/terminationpregnancyreport18may2010.pdf

World Health Organization Reproductive Health Department (2003) Safe abortion: Technical and policy guidance for health systems. Geneva, Switzerland: World Health Organization

World Health Organization (2010) Mid-level health providers: a promising resource to achieve the Millennium Development Goals. Geneva, Switzerland: World Health Organization

World Health Organization (2012) Safe abortion: Technical and policy guidance for health systems (2nd ed.). Geneva, Switzerland: World Health Organization

World Health Organization (2014) Clinical practice handbook for Safe abortion. Geneva, Switzerland: World Health Organization

 

Code of Conduct for Committee Members

Download the PDF here: Code of Conduct for Committee Members 

 

Safeguarding Policy for Children, Young People and Vulnerable Adults

 

Signed Commitment to Governance Code

Download the PDF here: Signed Commitment to Governance Code 

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