"The consultant said it was the law, that this is a Catholic country"
I've been mulling this over all morning, having seen the twitter reaction to the horrible death of Savita Halappanavar and her child, and the vitriol directed at the Consultant - on the basis of what the Irish Times reported.
My wife and I lost our daughter at full term (37weeks+) a few years ago. We arrived at the hospital, found no heart beat and had to have labour induced. The abruption and the fall out, the mixing of our daughters blood, fluids and waste that had been in the womb, caused a degree of toxic shock, and combined with my wifes blood loss, had her life at severe risk. Thankfully she survived but suffered acute renal failure and significant kidney damage as a result, both of which she recovered from. I was absolutely furious with the obstetrician and lack of care that should have been provided to prevent such a 'catastrophic failure' from occuring and I remember how every comment I was told over the previous two weeks was micro analysed, to see what could and should have been done differently.
This mornings news, and the reaction to it, thus touched a still very raw nerve, losing your child and worrying that your wife would also be lost. And so I thought about todays Irish Times report and the assumptions people have made, both about the Doctor, the right to life of the child and about sharing what i found out when I investigated what that meant in law (there was a high degree of negligence in the case) - and some questions that should be asked.
We know abortion is illegal in Ireland. The only exception is when there is a real and substantial risk to the life of the mother. The Doctor has to be absolutely certain this is the case and no subjectivity, else they risk criminalisation under 'The Offences Against the Person Act of 1861'. This is why campaigners have been calling for legislation for 20 years on this area, to provide laws that protects Doctors who 'might' be afraid to carry out actions.
Doctors who carry out terminations on the basis if the SC Judgment, do so in an exposed position. They risk having their judgments questioned by colleagues, litigators and Boards of Managements, many of whom still bare the heavily influence of religious orders. Under the current laws (or lack of), they have to be 100% sure the life of the mother is at 'substantial risk'. This Doctor may have been ignorant of the law (no excuse), lacked the confidence to make the call - based on the current vacumn of clarity, or, in their judgment, felt as horrific as the situation was, that it wasn't placing Ms Halappanavar's life at 'real and substantial risk'. Easy to say in retrospect, more difficult to forecast.
Much focus has been on the comment given by Mr Halappanavar that "The consultant said it was the law, that this is a Catholic country". It is important to remember, before we practically lynch the Consultant, that this is a paraphrasing and may not be the exact phrase the consultant used, or with any context given. For example: S/he could be heavily pro-choice and be incredibly frustrated at feeling s/he could not carry out the proceedure. I can very easily see how any Dr, even a pro-choice Dr, could say their hands were tied as its a Catholic country.
The context is EVERYTHING. If they made Ms. Halappanavar diagnosis based on its being a Catholic country, then it is an outrageous deriliction of duty of care to the patient, but if the diagnosis was made on the basis they couldn't with full confidence state it had her life at serious risk - then it could easily have been a remark born out of frustration with an antiquated law and the cowardice to confront it by the legislature.
The comment, second hand by its nature, shouldn't be assumed to be the comment of some rabid pro-life, Opus Dei-like obstetrician and could as easily be that of a deeply frustrated pro-choice consultant that would prefer to acceed to her wishes, but felt prohibited from doing so, vocalising at its core, why s/he(felt) debarred from doing so.
We don't know. Yet.
I am pro-choice, always have been. Yet upon our daughters death i sought every legal avenue to find out what a) should have been done and b) how does the State, in reality, reflect the right to life of the child. After a year of legal advice that demonstrated the consultant was negligent, I finally contacted William Binchy (pro-life movement) as after all, he is an authority on the area. He confirmed what my legal advice had told me. The law does not protect the rights of the unborn child, if they are not born alive. Advice, based on the case of Linda McGeehan v. National Maternity Hospital and Others, 21st April 2004, Mr. Justice Kearns (then a high court judge) referenced Section 58 of the Civil Liability Act 1961.
"For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive."
To have lived is defined as 'have taken a single breath'. As she died in the womb, having not been born, she was not considered to have lived. To have heard this confirmed from a head of the pro-life movement astonished me as we had operated on the basis that article 40.3.3 of the constitution (The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right) would have treated all the unborn with the same rights and not prejudiced rights between them on the basis of being birthed alive.
The laws are an ass. It's time politicians legislated and give the consultants a proper safety net to operate in AND proper consequences for where they fail in their duty of care to mother and child.
After the fiasco of the Childrens Rights referendum, where FF & SF sat on their asses after putting up a few dozen posters and waited for an opportunity to make political capital if anything went wrong, its important they don't just row in with soundbytes but work progressively with Labour & FG to provide real legislation. Some politicians in each party are going to have severe difficulties with this, maybe enough so there isn't a Gov majority on the issue. This is bigger than party politics and can't be left fail again.
With the challenge of getting such sensitive legislation through a Government with a mainly conservative support base, its important that while politics occurs, party politics isn't a feature. While FF is a centre/centre right party, we keep hearing SF is a left party, yet derives much support from very conservative counties like Donegal, border etc. Legislation is overdue, FF & SF, as parties need to support this so that it gives the Fg party some balls in that they won't be hung out to dry in isolation on it, that it passes and not defeat it to score a point. Lives, as we've so sadly seen, are at risk.
ps; a superb summary of abortion legislation in ireland: