Ireland and the Dilemma of Abortion

Arun Joshi

Nov 16, 2012, 06:39 AM | Updated May 02, 2016, 04:07 PM IST

Savita Halappanavar, seemed to be having it all, the young, good-looking 31 year old dentist from Belgaum, was settled in Ireland, along with her engineer husband, Praveen, in the town of Galway. Add to it,  she was expecting her first child, and in the words of her husband, she was totally over the moon. Life indeed seemed beautiful for the Halappanavars, that is until October 28 when tragedy struck the family.  On Oct 21st, Savita was admitted to the University Hospital Gallway, complaining of severe back pain. An internal examination conducted on Savita, found that the baby would not survive due to complications, and it would be a miscarriage most likely. The next 7 days would be agony for Savita, though anguished over losing the baby, she asked if  it could be aborted. The consultant  however  replied that  as long as the foetal heartbeat  was on, they could not do anything. In the words of her husband, Praveen:

“Again on Tuesday morning, the ward rounds and the same discussion. The consultant said it was the law, that this is a Catholic country. Savita, a Hindu,  said: ‘I am neither Irish nor Catholic’ but they said there was nothing they could do.”

By Oct 28 lunchtime, the foetal heart stopped beating, womb was removed, and internal bleeding and complications  resulted in the issue going critical, and she passed away of septicemia. As per Praveen, timely action by the medical authorities could have saved Savita’s life.  Now whether the medical authorities were guilty of negligence or whether it  was a genuine medical error, will be known only  after  the internal investigation launched by the hospital is over.

The issue here though is of  Ireland’s  stance on abortion, an issue  that has often left the country polarized with an equal number of  people in the pro-choice and pro-life camps. And to be honest though, this is not just an Irish issue.  Andorra and Malta have banned abortions totally, while Holland, Belgium, Denmark, France, Austria have more liberal abortion laws, the gestation period varies from country to country. On the other scale is Italy where abortions are officially forbidden, but doctors do it in private, anyway that is another issue.

The fact remains that abortion is illegal in Ireland period, except in the case that there is a risk to the life  of the mother, which also includes a risk of suicide. Now the question may be asked, if  this was the case “Why was Savita denied an abortion, her condition was life threatening in itself?”.  Quite valid and perfectly logical, except that this particular clause still remains a grey area in Ireland, to date Governments are yet to clarify on this.  If we take the two rules on abortion as is here:

“Abortion is illegal in Ireland except where there is a real and
substantial risk to the life (as distinct from the health) of the
mother. Under current legal precedent, this exception includes
where there is a clear and substantial risk to the life of the mother
arising from a threat of suicide. You should undertake a full assessment
of any such risk in light of the clinical research on this issue.

In current obstetrical practice, rare complications can arise where
therapeutic intervention (including termination of a pregnancy)
is required at a stage when, due to extreme immaturity of the
baby, there may be little or no hope of the baby surviving. In these
exceptional circumstances, it may be necessary to intervene to
terminate the pregnancy to protect the life of the mother, while
making every effort to preserve the life of the baby.”

I really am not much of a medical expert, but  even as a layman I still find the above two clauses sort of  ambiguous. In the first case of  risk to life, it looks to be permitted only if there is a full assessment  of the risk.  The second case is even more ambiguous,  it says that it you may have to protect  the  life of the mother while trying to protect the life of the baby. Again my view is that of a layman,  maybe a trained medical practitioner could have a better understanding of the above two clauses.  One more thing, it is illegal to abort  the  foetus even in the case of abnormality,  which could prove life threatening.  There have been protests by women on this issue, with demands for limited abortion services  to women carrying such foetuses.

To actually understand Ireland’s stance on abortion, it is imperative to refer to an older act, Offenses Against the Person Act, 1861, where abortion was mentioned as a criminal activity effectively, and  any one helping in the act  were penalized. It was an act passed by the United Kingdom when Ireland was still part of it, but the Act stuck around even after independence too. In 1973, the Irish supreme court, in the McGee vs Attorney General case conferred spouses the right to privacy in marital affairs, something that was a jolt to the more conservative, family oriented Irish society. In the same year the US  Supreme Court ruled in favor of an individual’s right to abortion in the Roe vs Wade case, a ruling that caused concern in Ireland, that there would be a similar act here too. Around 1981, a group of  anti abortion campaigners lobbied hard for the Irish Govt to introduce an anti abortion act, that would prevent the Supreme Court from interpreting the Constitution to provide for abortion. With all the 3 major Irish parties–Labor, Fianna Fail and Fine Gael–accepting the proposal it was just a matter of time.

“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.”

In 1983, Ireland passed the 8th Amendment to the Constitution after much debate, over the wording. It  was supported by around 67% of the voters, with a clear divide, the Fianna Fail, Roman Catholic clergy, pro life campaigners on one side and opposed by Workers Party, Sinn Feinn, feminist groups, some Labor senators and some of the Protestant churches. What the Government did was to ensure that any changes to the existing abortion laws, would have to be put to the people, and could not be carried out by the State on it’s own. And this resulted in a sort of a deadlock situation, Government not really taking any steps on it’s own to repeal the abortion laws, while the voters showed no interest in going for a referendum on it.

In 1992, a 14 yr old girl Ms.X  was raped by her neighbor, which left her pregnant. As abortion was illegal in Ireland, even for rape, incest cases,  the family had to travel to England to get it done. The girl mentioned having suicidal thoughts, and her family requested the Garda Siochana( Irish police force) if DNA from the aborted foetus  could be used as proof against her neighbor.  However the then Attorney General, Harry Whelan, sought an injunction against the abortion, claiming it was against the law.  The Supreme Court overturned it,  and  in what is described as  Ms.X vs Attorney General case, 3 amendments were  proposed to the Irish constitution.

Amendments 13 and 14, that allowed women the right to travel abroad for abortion and seek information on services in other nations were accepted. However Amendment 12, which sought to make abortion illegal even if the mother had suicidal tendencies was rejected by the electorate in the referendum. It  was one of the most polarizing events in Irish history with the pro choice and pro life campaigners equally vocal on bothe sides. The reason why in spite of the ruling the Irish Govt has not yet clarified it’s stand on that issue, as many did not want to upset the more conservative sections of the Irish population.

A similar case occurred in 1997, when a 13 yr old teen, Ms.C was pregnant after being raped. On the basis of the 1992 Supreme Court judgement in Ms X vs Attorney General case, the High Court decided it was valid for her to undergo an abortion here owing to her suicidal tendency. She however had the abortion in UK later on.  Even though the EU did not favor a ban on abortion, they however made an exemption in the Maastricht Treaty for Ireland.  It  was another landmark case, A,B,C vs Ireland in the European Court of Human Rights that bought the issue into much more clear focus.  Without going too much into details, the case concerned 3 women A,B and C who had to travel to UK to abort what they deemed their unwanted pregnancy. The  3 women claimed that their rights to abort  were violated and they had to go abroad.  In the case of C, though the court found there indeed was a breach of her rights. Suffering from a rare form of  cancer, C claimed there was no effective process in Ireland for ascertaining the risk her unborn baby had due to the exposure to it. And she was forced to travel to UK, undergo a rather messy abortion, which left her with prolonged bleeding.

The biggest grey area is the lack of legislation by the Irish Government, on these particular cases  where abortion is  allowed. In spite of the Supreme Court rulings, no Govt to date has yet to come out with a proper clarification or legislation in this regard. As the European Court of Human Rights observed,  lack of proper legislation means that Ireland is still governed by archaic laws related to prohibition.  The lack of proper legislation means that  even if you are legally qualified to have an abortion,  you still do not want to take a risk here. In case the abortion was found not to be accord in with Art 40.3.3 of the Constitution, the doctor ran a risk of  serious criminal conviction, imprisonment, even if it was done keeping the risk to her life in mind.  The problem is  What is not in accord with Art 40.3.3 has not been legislated. Why would any medical practitioner want to risk their career here?  The stats tell a story, in 2010 itself around 4000 of the women undergoing abortion in UK were found to be from Ireland.

It  looks like it has taken the case of a high profile death to goad the Irish Government into action, Major protests against the anti abortion ruling, have been forcing the Government to rethink it’s  stance on the abortion issue.  The Irish Government can no longer dilly dally on this issue, they would have to take a stand sooner or later.. And yes while the death of Savita Halapannavar is tragic, this is not a time for chest-thumping threats, and hysterical rantings. The Government needs to be handling this issue in a sensitive manner. Whether we like it or not, it is the Irish Government that has to take a decision at the end of the day on this issue. There is a whole lot of  people in Ireland who see the abortion issue as something being imposed from outside. Add to it the clergy still holds sway, and the Govt would not want to antagonize them. So while we make our views clear to the Irish Government, it would be best left to them to decide on how to carry it forward.

I finally would like to acknowledge the following sources that have helped me in drafting this article:

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