Unlikely victims of the eighth amendment

Sarah Taaffe-Maguire considers the difficulties professional and student midwives face when negotiating the eighth amendment.

FEATURESThe eighth amendment places equal value on the life of an unborn child as on the life of the pregnant person. It goes beyond a ban on abortion. It is a divisive issue. Lesser reported on is the literal division made between people. When a person becomes pregnant they no longer have the same rights as another human.

Pregnant people are not permitted to make all the choices about their care, nor their body; consent becomes optional. The Association for Improvements in Maternity Services Ireland reveals that between 2010 and 2014 only 52.8% of the 2,836 pregnant people surveyed were “fully informed of benefits, risks, and potential outcomes of tests, procedures, and treatment” and only 50.2% were given the opportunity to make an informed refusal.

In practice this has meant forced medical procedures, or “torture” as the United Nations has termed it. It is only through court cases that these stories come to light. The 2010 case of Mother A tells of one such coerced caesarean section. You would expect there to be a real, substantial risk to the existence of the foetus for an intervention, but the case tells a different story. Here, the risk was that Mother A may experience a uterine rupture. In such a circumstance there is little risk of death to the baby.

In 2011 Ciara Hamilton had her waters broken at Kerry General Hospital with neither her consent nor her knowledge. A side effect of waters being broken is umbilical cord prolapse. She was not informed of this, had an emergency caesarean section, and has suffered the psychological effects since. Hers is a case which highlights the positions of the doctor as having greater access to truth and knowledge than the pregnant person.

Aja Teehan who took a case against HSE policy believes the HSE can “merely use a set of tables to impose a medical treatment of their choosing upon a pregnant or labouring woman.” In challenging the intervention done to her, she asked that “merely use a set of tables to impose a medical treatment of their choosing upon a pregnant or labouring woman.” In challenging the intervention she asked that “each woman would have input into a decision process that considered their individual medical history. This was a minimal request. It relied upon the right of every Irish citizen to have input into decisions that affect their private life, as defined in the Constitution. Yet, somehow, the courts found that this minimal level of participation in medical decisions while birthing was not to be awarded to the women of this State”.

Ms Hamilton has had to pay for her own legal costs for bringing this case. Faced with legal bills, it is doubtful that the ruling will be challenged in the future. Aja Teehan feels that the eighth amendment “is the trump card that allows these injustices to be perpetrated on women and their children. It is this that allows clinicians to perform medical procedures without the consent of women.”

It is common for the threat of a court order to be used if a pregnant person’s consent is not readily given. Women fearing their baby being taken into state custody generally do not sustain the pressure and yield to the procedure.

The eighth amendment has been given a wide berth. No cases have emerged where a pregnant person has been taken to court because they were arguably putting the life of the foetus in danger. No one has argued that a pregnant person has created a situation where the amendment may be broken. No court has specifically ruled that an action ought to have been done against the pregnant person because otherwise the foetus would be at risk of death. The court has ceded to a medical profession acting in fear but crucially has not held their actions are necessary. A literal interpretation of the amendment would not necessitate such actions against pregnant people. It is doctors fear, and not court decisions, that deem the violence against pregnant people necessary.

The chilling effect of the amendment is undeniable. Hospitals fear a situation which may be in breach of the amendment so they take precautionary measures, which sounds cautious and appropriate until you know what it means. We can see the amendment is not the only cause of the coercion. Let’s not forget the wording: the unborn has only the right to be born. There is no right to be born safely according to the Supreme Court. In a situation where the eighth amendment no longer exists it is conceivable that the same coercive systems may still exist.

Might teaching have play a role in the creation of a culture of indifference to the choice of pregnant people? Midwifery is taught in all the major Irish universities, and certainly Trinity midwifery students know, learn and talk about the eighth amendment. It is a regular topic in their sociology class says one, “with regard to scope of practise, autonomy of the woman and midwifery practise, choice and conscious objection/providing care in emergency circumstances.” However, speaking to Trinity News, one Trinity midwifery student said that it does come “under scrutiny lately as women in maternity care in Ireland are totally not given choice (it’s just medical lead birth).” Students witness harms to women first hand: “We have all seen, been part of a situation and heard of women doing things they don’t want. We do things we don’t want. I don’t know if it’s specifically eighth amendment related so in that I can’t judge or comment.”

Seemingly there is a cognisance of the harms. Why then have the Irish Nurses and Midwives Organisation not been at the heart of the campaign to repeal the eighth amendment? In November 2014, the INMO and other trade unions met to discuss the eighth amendment as part of a union wide campaign aimed at a repeal. They were calling on their fellow trade unionists to come together. Yet the INMO have been silent on the issue since. Certainly there was no official presence at the recent March for Choice. The INMO neglected to comment on the issue when contacted by Trinity News. From this, it can only be concluded that they are not taking a stance. Arguably, this is the worse than being in favour of the amendment; they have acknowledged its harms by being part of the original trade union meeting, but have not taken any action. Are midwives institutionalised into thinking this behaviour is required in a busy modern Irish hospital? Or do they fear their job if they speak out?

Midwives play a specific role in the care of pregnant people. Speaking to Trinity News, independent midwife and campaigner Philomena Canning commented: “the freedom of midwifery relies on the freedom of women. With women in chains, midwifery practice is correspondingly restricted… the fundamental role of the midwife is to share the journey through childbirth in partnership with the woman, so taking the freedom from one takes it from both.” She believes the amendment “is the greatest insult of all to motherhood, implying the State cares more about the welfare of the baby in the womb, and that a woman’s capacity and decision-making is rendered wayward, unsound, or not to be trusted. Getting the Eighth repealed is the essential first step in the long journey back to women and midwives reclaiming their equal power.”

Of course nurses and midwives are not the only ones towing the oppression of the amendment. Doctors, obstetricians and gynaecologists too have their involvement, but The Institute of Obstetricians and Gynaecologists of Ireland has not taken a stance in favour of women. The Institute have in the past dictated that women’s medical records and unpublished research could form part of the Walsh Report into symphysiotomy. In a letter to the Irish Times in May of this year regarding the composition of the Maternity Strategy Review Steering Group, Professor Robert Harrison, said members of the Institute were “dismayed about the make-up of the group.” He believes three obstetricians, no anaesthetists or critical care specialists, but nine people from a midwifery background and three lay people, “does not reflect a fair balance of those who work in maternity services today.” The Institute seeks to maintain the status quo of consultant dominated care and the view of doctors knowing best.

Do patients know that the coercion is because of the eighth amendment? If it were more widely known, the voices of these people could be useful in making the campaign against the amendment more directly applicable to not only people in childbirth but to partners and family, people who potentially do not directly relate to stories of abortion. That’s not to advocate for a sanitising of the core message, but to illustrate all the suffering caused by the amendment. An INMO stance on the amendment could be a galvanising force and point of unity for these left out voices.

Difficult moral decisions are invoked: in a situation where a patient is refusing a procedure, does the doctor know best? This is not just an issue on the treatment of women. To answer we must engage with the notion that the medical profession sees itself as possessing the monopoly on truth; what is the correct moral decision? To practitioners it seems the correct medical decision is the only decision. Ultimately, no one but the informed individual must control the direction of the medical care concerning their own body. The eighth amendment has made that complicated moral decision for us. It is a core part of the state apparatus of subjugation. While only intended to prohibit abortion, it is applied broadly and used as a method to reify the societal feeling that women cannot be trusted, and are not best placed, to make decisions about their bodies and their care.