How the Eighth Amendment affects maternity services

'Many Irish women have had negative experiences during pregnancies, birth, and labour under the Eighth Amendment'

The Eighth Amendment, inserted into the Constitution in 1983, equates the life of the mother with the life of the unborn child. Abortion is not available in Ireland even in cases of fatal foetal anomaly or when a woman becomes pregnant as a result of rape.

Yes beyond the issue of abortion, the Eighth Amendment affects women who decide to continue with their pregnancies and the care they receive in Irish maternity hospitals. The HSE’s National Consent Policy restricts informed consent and informed refusal of treatment for pregnant women. To quote the policy, p41, Section 7.7.1: “Because of the Constitutional provisions on the right to life of the unborn [Article 40.3.3] there is significant legal uncertainty regarding a pregnant woman’s right to [consent]."

What this means is that under the Eighth Amendment, a woman and her pregnancy are treated as two separate lives, of equal importance, with separate rights. As a result, women have limited rights to agree to, or refuse, an examination or medical treatment. This creates difficulties for health professionals. They may be uncertain about a woman’s right to refuse treatment if they believe this may put the pregnancy at risk. Doctors are being advised that legal advice should be sought as to whether an application to the High Court is necessary to override a patient’s wishes. (HSE National Maternity Strategy )

The Eighth Amendment also means that if a medical problem develops during a pregnancy, a doctor has to put the well-being of the foetus before the health and well-being of the pregnant woman. This has resulted in women being refused cancer treatment because they are pregnant.

The Eighth also makes a dangerous and unworkable distinction between a pregnant woman’s life and her health. Doctors are obliged to wait until a woman’s life is at risk before being able to provide appropriate health care, ie, to carry out an abortion. The law, combined with the threat that they might be breaking the law, are known to have prevented doctors from being able to act in the best interests of their patients.

This legal uncertainty contributed to the death of Savita Halappanavar in 2012. Doctors refused to perform a termination after a diagnosis of inevitable miscarriage. She was told that she could not have a termination because a foetal heartbeat was still present. She died a short while later of sepsis.

'The Eighth Amendment means if a medical problem develops during a pregnancy, a doctor has to put the well-being of the foetus before the health of the pregnant woman'

Women who do not experience such complications during pregnancy are still negatively affected by the Eighth Amendment. A survey carried out by The Association for Improvements in the Maternity Services in Ireland in 2014 found that only 50.2 per cent of women were given the opportunity to make an informed refusal of a test, procedure, or treatment during labour and birth. Further to this, only 52.8 per cent of women said they were fully informed of benefits, risks, or potential outcomes of tests, procedures, and treatments during labour and birth. Some of the comments made by women in the survey indicated they felt as though they were not being listened to, with some even describing their birthing experience as “traumatic”. The full results of the survey can be found on aimsireland.ie

The lack of rights of women when refusing treatment during pregnancy, labour, and birth have been evident in a number of cases brought to the High Court in the last number of years. For instance, in 2016 a woman was taken to the High Court by the HSE to force her to undergo a Caesarean section against her will to “vindicate the right to life of her unborn child”. The case was dismissed, with the judge ruling that forcing the woman to undergo a Caesarean would be a “step too far”. Under the Eighth Amendment, however, this case could have gone “too far”. As the results of the AIMS Ireland show, women are routinely coerced into procedures without their consent.

Many Irish women have had negative experiences during pregnancies, birth, and labour under the Eighth Amendment. Pregnant women deserve to be treated with respect and dignity, whether they decide to continue with a pregnancy or not.

The unworkable distinction between women’s lives and their health has also had devastating consequences for many families. We simply cannot allow this to continue. There have been many unintended consequences of the Eighth Amendment. These have affected hundreds of thousands of women since its insertion. Voting Yes on May 25 will mean the Dáil can legislate for women’s consent. For more information see togetherforyes.ie

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