As human beings, our health and the health of those we care about is a matter of daily concern. The right to health is a fundamental part of our human rights and of our understanding of a life lived in dignity. The right to health includes not only includes the right to healthcare, but also to the factors which facilitate good health – including access to information about healthcare and a say in the policies which affect you.
Article 12 of the International Covenant on Economic, Social and Cultural Rights enshrines the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.
Article 12 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) asserts women’s entitlement to specific gender-related healthcare and requires that States “shall ensure to women appropriate services in connection with pregnancy”.
full reproductive rights
The United Nations Committee on Economic, Social and Cultural Rights has said that States must put in place “preventative, promotive and remedial action to shield women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights”.
The Irish courts have held that the right to bodily integrity includes the right not to have one’s health endangered by the State. The right to bodily integrity is one of the unenumerated rights which flows from Article 40.3.1 of the Constitution: ‘The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.’
In the case Re a Ward of Court (withholding medical treatment) (No 2) the Supreme Court held that ordinarily a patient may refuse to submit to medical treatment. The Court stated that “medical treatment may not be given to an adult person of full capacity without his or her consent … This right arises out of civil, criminal and constitutional law.”
According to constitutional and European international human rights law, States may sometimes interfere with people’s rights when it is necessary and proportionate to achieving a legitimate aim. However, whether an interference is proportionate depends (among other things) on whether the harm and suffering caused by the interference outweighs its purported benefits.
Article 40.3.3 (the 8th Amendment) of the Irish Constitution constitutes a major interference with women’s right to health by preventing women from being able to terminate a pregnancy when necessary to preserve their health.
continued culture of coercion
The 8th Amendment also denies women* control of medical decisions taken during their pregnancy, including their right to refuse medical interventions. 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 (where pelvic bones and ligaments were severed without women’s knowledge or consent). The 8th Amendment contributes to a continued culture of coercion.
The HSE’s National Consent Policy states that while ordinarily a woman has the right to refuse medical treatment, “there is significant legal uncertainty regarding the pregnant woman’s right to refuse treatment in circumstances in which the refusal would place the life of a viable foetus at serious risk. In such circumstances, legal advice should be sought”.
losing the right to consent to medical procedures
There are extremely few circumstances, other than in pregnancy, where an adult person who is understood to have the capacity to make health-related decisions loses the right to refuse medical treatment.
The National Maternity Strategy goes even further than the HSE statement, stating that a pregnant woman’s right to refuse treatment should be respected only “insofar as it is safe to do so” and may be overridden where there are implications not only for the life of the foetus but also for its health “as defined by her team of health care professionals”.
This means a health care professional cannot always be sure in what circumstances a pregnant woman may refuse treatment and so may err on the side of caution. Several studies have shown that pregnant women in Ireland are frequently denied the option of refusing tests and invasive procedures during labour, and that women have been threatened with arrest or court action where they would not comply with their medical teams’ requirements.
Voting to remove the Eighth Amendment from the Constitution will help to ensure that a woman can fully enjoy her right to healthcare and will help to protect her right to consent to medical procedures during pregnancy and childbirth.
*all of our references to women should be understood to include women, girls, and non-binary and trans people who can become pregnant.
Case in Focus: 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.