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Monthly Archives: December 2014

Thoughts on the High Court case

As the three High Court judges retire to consider their decision in the latest Irish abortion law tragedy/farce, I’ve been thinking about the options open to them and their implications for the future. As I see it, there are four possibilities:

1. They could uphold the right to life of the “unborn”, thus compelling the woman to be kept on life support until the foetus can either be induced or dies itself. This is the family’s nightmare scenario. Probability of appeal: certain.

2. They could find the 8th amendment applicable to situations of this type generally, but exclude its applicability to this case on the basis of the overwhelming medical evidence that the foetus will not survive anyway. This would have implications for future fatal foetal abnormality cases; essentially it would vindicate the argument that no referendum is needed to allow for abortions in cases where the foetus’s condition is “incompatible with life”. However, the question would then arise of exactly how incompatible it must be, and who gets to decide and how. We would likely be looking at the FFA version of the Protection of Life During Pregnancy Act, for which there is likely to be just as much enthusiasm. Probably of appeal: fairly low, I would think.

3. They could find that the 8th amendment doesn’t apply at all, as it was strictly intended to prevent abortion. This argument was used in court by John Rogers SC, counsel for the women’s family, and is consistent with previous judgments such as Roche v Roche and O v Minister for Justice. Such a ruling would have implications for maternity care in Ireland, in particular the noxious National Consent Policy’s exclusion of pregnant women from the right of all other adults to autonomy in health care decisions, and the threatened use of court-ordered Caesarean sections. For this reason I would imagine the probability of an appeal would be fairly high.

4. Lastly, they could sidestep all the difficult issues above and simply rule that in all the circumstances of this particular case, it would create an injustice to force the woman to continue on life support. This is probably the best option for the family; there is virtually no chance of an appeal, and it would allow the Court to have regard to the woman’s own right to dignity rather than making that conditional on the prospects for foetal survival. Unfortunately, it would also mean that the underlying issues remain unsettled. And if there’s one thing that’s become increasingly apparent, from Savita to Ms Y to now, it’s that there really is no such thing as a “uniquely difficult” case. We are far from seeing the last “tragedy” of a woman whose pregnancy tests the 8th amendment in ways its supporters would have deemed too fanciful to rate as valid arguments against it.

The cowardice of most of our political parties to deal with this issue is something that simply can no longer be tolerated. And it is not simply the politicians who I am addressing that to. It’s time for us as voters to make this a red-line issue, to let our elected reps and candidates know that a preference from us depends on their support for repeal, and to stick to that pledge regardless of partisan or personal loyalty. Because if we vote back in another government that refuses to be the one to hold a referendum, every one who does so will be complicit in what’s been happening in that hospital since December 3rd.

Note: This post was written on an iPad Mini thousands of miles away from Ireland; please excuse lack of links and possible missed details.

Parental (and paternity) leave is a feminist issue

The Irish Times this week, followed en masse by other papers and mainstream media outlets, breathlessly rushed to report that 2 Irish MEPs were the MEPs with the worst record of attendance at voting sessions of the European Parliament in Strasbourg. What they didn’t manage to initially include in the story, and which transpired over the course of the day that the story broke, was that one of the MEPs (Brian Crowley) has been unable to attend at all as he’s ill, and that the other, Luke ‘Ming’ Flanagan, has needed to be at home with his wife, newborn baby, and other children. His wife has also been ill, in addition to having all the intensive, non-stop demands of a newborn to contend with. As at the time of writing, the Irish Times has run four separate follow-up pieces by Suzanne Lynch, all focusing on Ming’s ‘dismal voting record’, how he should suffer financially for it, and should Irish MEPs (and by obvious inference Ming) have even bothered to run at all if they were going to let down the electorate like that by non-attendance through having the nerve to have babies and families that need caring for? In one piece, Lynch attempted a mealy-mouthed pretence at recognising the fact that Ming was at home, caring for his unwell wife and their newborn baby as well as their other children, calling this ‘mitigating circumstances’, claiming that “[n]o one is suggesting [his need to take paternity leave] should elicit anything less than complete empathy” while immediately following this up by suggesting that his low attendance “while drawing full salaries raises the question as to whether Ireland’s MEP system is fit for purpose.

No, actually, that’s exactly how parental and paternity leave systems SHOULD work. Nobody should be financially penalised for having a baby. (This is not a conversation about whether people who are supposed to be representing the public should be paid as much more than the majority of that public than they are, though that’s a conversation worth having too.) Nobody should be forced to attend their workplace immediately after the birth of a child for fear of losing their job – or indeed, as in the Irish system and in this instance, depending on the time of the birth, DURING the birth of a child. (In Ireland, because there is no entitlement whatsoever to paternal leave, new fathers are reliant on their holiday leave and employer’s vagaries to be able to be present at the birth of their children should that birth be during working hours, as well as to be home with their partner and newborn in the time after the birth.) Nobody should have their absence from their job as the result of the birth of a child and needing to be at home to care for that child, their unwell partner, and their other children reported in the national media and the subject of this kind of intense and judgemental scrutiny. No man should be expected to abandon his sick partner for her to provide alone the kind of intensively demanding all-around-the-clock care that a newborn provides, in order to show up at a place of work. And certainly no sick woman should be left alone to care for a newborn without the support she has a right to expect from her partner in creating that newborn, as well as support in caring for herself and her other children. What kind of barbaric social system would demand that?

Only, of course, the one we live under; a horrible combination of capitalism and patriarchy, which holds ‘work’ (meaning, of course, paid work, done outside the home, not something as petty and gendered as simply bringing a child into the world, caring for its every need, raising it as a moral being and seeing to its needs around the clock) as supreme; as an unquestionable overlord to be served without regard to personal needs and circumstances. “Doing your job”, in this paradigm, is paramount, and excuses everything from the actual killing of another human being to being expected to abandon one’s partner, the person one is assumed to love and honour above all others, to the 24/7 backbreaking work of caring for a house full of children (one a newborn) alone. And sure if you’re paid enough can you not just pay someone else to do that caring nonsense for you?

At no point in any of this coverage has the fact been mentioned that no Irish political representative – whether at local government level, at national level, or European level – has ANY right to any parental leave, whether that be paternity or maternity leave. It took Nessa Childers on Twitter to do that first. Nor did any of the coverage point out that while it’s “only one session a month” (as many on Twitter appeared to enjoy very much repeating), that “one session a month” extends to four consecutive days, and there are no direct flights between Dublin and Strasbourg, meaning this “one session” could very well in fact have demanded a full week every month away from Ming’s wife, newborn baby and other children. Even if his wife weren’t unwell, this would be an utterly unreasonable burden of care to lay on a woman who has just become a mother all over again. The blanket and unquestioning expectation apparent in not only the mainstream media coverage, but also the majority of the Twitter commentary on this, that if she weren’t sick (and in some cases that even though she is; and in yet some more, even more deplorable ones, that somehow they have the right to know HOW sick she is, and why, and since when, and why didn’t they know earlier), that he should have abandoned her, their newborn, and their other children, to the almighty power that is Work, is frankly sickening. A father should have the right to be with his newborn, just as a mother should have the right to not be the enforced sole, isolated carer of her newborn simply because its father needs to worship at the altar of Work. One of the most telling things of the coverage of this whole (non) issue is that there hasn’t been a single piece which can point to any of the votes he missed and name it as a topical one, as one that’s relevant to Ireland’s interests, or indeed one of those missed votes of his as having had any possible impact on the outcome if he had attended. Why isn’t that what’s being questioned as being a broken political representation system, rather than his having needed to take time to be with his family?

It is not possible to expect to see, and argue for, women’s participation in politics and public life rising from its current dismally low level, while also creating a society which excoriates men for taking up their part of the caring responsibilities that having a family entails. Perpetuating the idea and the necessity that only women can have space to do that not only condemns women to unpaid work in the home but also does not allow for space to honour that work; which has the potential to be beautiful, rewarding, and thoroughly worth doing. The work of caring for and raising a child is every bit as important to society, if not more so, than paid attendance at a workplace.

Sometimes people with babies need to be with those babies. Sometimes people with sick partners need to be with those sick partners because that’s what a partnership looks like. (It’s definitely what my partnership with my husband looked like when I was having an absolutely hideous time after our daughter was born, suffering from intense and unexpected postnatal depression, and would absolutely fall apart when he needed to be out of the house for even an hour, let alone travelling to another country for a full week.) No society that is worth living in should seek to punish or castigate its members for so doing.

A duty to reproduce: Modern Ireland is a sci-fi dystopia for women

In an episode of Battlestar Galactica called “The Farm”, Starbuck gets shot during a raid on Caprica and loses consciousness. She wakes up in a hospital, where it turns out that the cylons have a lot of human women hooked up to “baby-machines”, because they can’t reproduce themselves, so they’re trying to reproduce with humans. The human women are used as incubators and the cylons are of the view that they have a duty to reproduce. The cylon doctor tells Starbuck how women of reproductive age are very “precious commodities.” The agency of the individual does not matter – they are merely vessels. Vessels do not need to consent. The women hooked up to machines for the sole purpose of reproduction are, in this case, science fiction, and it’s pretty grim.

As I type this, there is a woman who is clinically brain dead but being kept alive on life support against her family’s wishes solely due to the fact that she is pregnant. The trauma that her family is going through now does not bear thinking about. I have lost a close family member in terrible circumstances, but I cannot imagine what it must be like to endure the heart-breaking pain of deciding to switch off a life-support machine. The trauma of it is surely enormous.

A next of kin is generally legally entitled to make a decision regarding treatment where a person can no longer consent. This family has concluded that the best course of action for this woman would be to withdraw life support. The medical staff cannot grant this request due to the constitutional right to life of the unborn: the right of an early stage foetus to be gestated potentially supersedes a woman’s right to dignity in death.

The state and the law of Ireland views women as vessels. In Ireland, once we are pregnant, we are no longer agents of ourselves. We do not get to decide whether we should or should not remain pregnant. Our thoughts, our feelings, our mental health does not matter. Our ability to parent does not matter. Our poverty does not matter. Our right to die a natural death does not matter. Our dignity does not matter. Our physical health does not matter, because you must be at risk of death to have an abortion. This is the outworking of the 8th Amendment. The state is unapologetic in this. The only time in which a pregnancy may be ended lawfully through termination is when there is a risk to a pregnant person’s life. The life of the foetus is what matters: continuing the pregnancy at all costs is what matters. If a pregnant woman is deemed to be suicidal, and like Ms. Y, wants an abortion, the pregnancy will be ended not through termination, but by an early caesarean once it is viable. To the state, ultimately, we are simply wombs with irrelevant thoughts attached.

The woman on life support in Mullingar, due to being clinically brain dead after suffering brain trauma, is being treated as an incubator for her foetus. There are people arguing for her to be kept alive for months so that her foetus may be born, and then turn the life support off – for them, she serves no purpose beyond this pregnancy. Her family now intend going to court to ask, in the name of compassion and human dignity, that her life support machine be switched off. There is no predicting what the courts will decide.

Will Article 40.3.3’s requirement to vindicate “the right to life of the unborn” in so far as is practicable require doctors to keep a clinically dead woman alive artificially in order to incubate it until it can be delivered? It is the crux of the case. It isn’t clear what stage the pregnancy is at (Reports have varied from 16 weeks to 20 weeks, with Joan Burton stating during Leader’s Questions today that it is at a “relatively early” stage), but while the 8th Amendment remains on the books every single case that presents such as this one will mean a trip to the courts for a family, because there will never be a clarity on what is practicable and what isn’t. Is one week practicable or twenty? You cannot legislate for every potential case.

We do not need another inquiry and report to tell us that the 8th Amendment still leaves medical practitioners with a lack of clarity as to what to do in these situations, or to tell us there is lack of clarity on whether it’s the pregnant woman’s rights or that of the foetus that will prevail. Leaving a pregnant woman hooked up to a machine for the sole purpose of incubating a pregnancy for possibly twenty weeks, in the absence of her next of kin’s consent where she has no capacity, does not uphold her dignity. It does not uphold her right to die a natural death. It does not allow for her family to consent when she cannot. It is inhumane, but her womb is a “precious commodity.” They wouldn’t do it to a dog.

This is the constitutional law, and while the law is designed to treat women as vessels we will always have the hard cases that fall outside of the scope of legislation. We will have more women in desperate situations. More Savita’s, Ms. Y’s. More A’s, B’s and C’s. More Ms. D’s. More Ms. X’s, and more women hooked up to machines because the state does not afford them or their next of kin the capacity to consent for themselves because their wombs are too precious a commodity to risk allowing them control over. This isn’t science fiction, for women, modern Ireland is dystopia enough, and there is no need for machine overlords, while catholic conservative values dominate policy on this issue.




On Frances Fitzgerald’s bill to criminalise clients

If you read this blog, you’re probably aware that Irish Justice Minister Frances Fitzgerald recently published the General Scheme of the Criminal Law (Sexual Offences) Bill 2014. And you’re probably also aware that the bill creates a new offence of purchasing sexual services.

But what does the bill not contain? Here are a few notable omissions:

  • No decriminalisation of sex workers. The Minister’s press statement says that “the persons selling the sexual service will not be subject to an offence”, but this is extremely disingenuous. It’s true that the bill does not create an offence of selling sexual services, but neither does it repeal the existing laws that criminalise sex workers. For the street-based minority, these are the laws against soliciting for the purposes of prostitution and loitering for the purposes of prostitution; for the indoor majority it’s the law against brothel keeping, which is often used against sex workers who share premises for their own safety. There is no reason to believe these laws will be used less frequently after the bill is passed; the experience in Sweden and Norway has been that the police target sex workers with whatever means they have at their disposal. If the TORL groups really had sex workers’ interests at heart, they would be shouting as loudly about this as they are about the plan to criminalise clients. They’re not.
  • No alternative income supports for sex workers. The bill aims to take away their sex work income but offers them nothing to replace it. There is no reversal of the cuts to social welfare and child benefit which have undoubtedly pushed more women into prostitution; no increase in the €19 per week given to women in the asylum system; no additional funds for education, training or drug treatment programmes that might open up other options. One might argue that most of these things aren’t within the remit of the Minister for Justice; but equally, one might argue that she should have insisted her Cabinet colleagues address those things before she introduced this bill – which, if it works as intended, will simply take away the option that they had decided was preferable to any others open to them. (Quick quiz: if I have one apple and no oranges, and you take away my apple without giving me any oranges, how many oranges do I have?)
  • No changes to laws that bar employment of asylum seekers and undocumented migrants and that limit the work options open to many of the documented. This one is within Frances Fitzgerald’s remit, and after all the hoopla recently about prostitution in direct provision centres she can hardly plead ignorance on it. Her plan to “address” this issue is to streamline the asylum system so that people spend less time in direct provision; again, if she really believed this was the best solution to asylum seekers having to engage in survival sex, wouldn’t you think she’d do that first?
  • No changes to Garda surveillance powers. In their testimony before a Stormont committee dealing with the same proposal, the Police Service of Northern Ireland said they would be unable to use the wiretap methods that the Swedish police rely on to enforce the sex purchase ban. Well, guess what: the Gardaí can’t use them either. Under the Criminal Justice (Surveillance) Act 2009, they have to apply to a District Court Judge for authorisation to use a wiretap, and this authorisation can only be given in connection with an “arrestable offence” i.e. one carrying a possible five-year-or-more sentence. Which leads me to the next omission…
  • No custodial sentence for paying for sex. The maximum fine is €1,000, and that’s only for repeat offenders – which hardly seems appropriate for an act that groups like Ruhama consider to be a form of violence against women. It’s also worth noting that Sweden recently increased its penalties, while in Norway, some have proposed making selling sex illegal too (in fact, according to a Norwegian human rights activist I met recently, that’s actually the main debate over the law at present) – because merely fining men who are caught paying for sex hasn’t been enough of a deterrent.
  • No change to the hearsay rule. In Sweden, hearsay evidence can be introduced in court, where it is given by a “trustworthy” source such as a police officer. In Ireland, it generally can’t be (there are exceptions, but none relevant here). So if a Swedish sex worker refuses to give evidence that she was paid to have sex with an accused, a Swedish policeman can quote things she said to him at the time of the arrest that would tend to support a conviction. In Ireland, anything she said would be inadmissible unless she went to court and said it herself. I’d imagine the chances of any sex worker agreeing to do this are virtually nil – unless of course the State subpoenas her and forces her to testify in what would be, let’s remember, a public hearing. Tell me again how the groups supporting this law have sex workers’ interests at heart?
  • No provision for review. New Zealand’s Prostitution Reform Act 2003, which largely decriminalised sex work, included provision for a Prostitution Law Review Committee which must report on the effects of the law between three and five years after its commencement (the findings are here if you’re interested, which if you’ve read this far you should be). No such requirement in the Irish bill – underscoring the lack of concern for any evidential basis of this law change.
  • On the plus side, there is also no sign of the particularly draconian measures advocated by the Oireachtas Justice Committee. The Sinn Féin and Labour committee members ought to think seriously about what it says that they advocated laws too repressive even for a Fine Gael Justice Minister.

The General Scheme of a bill is just that – a general scheme – so it is always possible that some of these changes will be made before the text itself is finalised. It could be amended on its passage through the Oireachtas, too. But the odds are against it being amended in any substantial way. As the Minister herself more or less admitted during a recent meeting with sex workers and sex work researchers (I was one of them), the law’s real purpose is symbolic, and its actual effects are of secondary importance. It doesn’t really matter what the bill includes because, to Frances Fitzgerald, it doesn’t really matter what the law does – whether or not it “works”, whether or not it harms sex workers. Sex workers themselves do not matter. This is why their views have been so readily ignored throughout this process: because as far as Irish policy-makers are concerned, the law is not really about them anyway.

Those who can, teach. Those who can’t, complain about teachers.

Those who can, teach. Those who can’t, complain about teachers.

The Irish media has been clamouring to give voice to beleaguered parents and concerned citizens condemning today’s teachers’ strike. Some of those commenting on the ASTI and TUI decision to picket seem to be under the impression that teachers are just obstreperous babysitters who live a cosseted existence, overpaid and underworked, doing an easy job that a monkey could do in their sleep – except these monkeys are particularly greedy. The reality of this couldn’t be further from the truth and there is far more to teaching than standing in front of a classroom from one end of the day to the next.

Teaching is a profession that’s viewed with an almost unique level of disdain in some quarters. The phrase “those who can’t do, teach” might be used in a self-deprecating manner by some teachers but it’s something that genuinely appears be the core mind-set underpinning the criticisms of the strike. Texts are being read out on Newstalk from critics saying “these teachers are only afraid of doing more work with no extra pay,” as if teachers should be martyring themselves and teaching for free, for the pure love of imparting their knowledge to students, as if instilling a love of learning in pupils should be reward enough in itself. It’s probably only teachers and nurses that are consistently faced with the attitude that serving others should be compensation enough and it’s no coincidence that it’s a female-dominated professions that bring out comments such as that. The Minister herself isn’t immune from subtly making that same criticism, even though the strike isn’t actually about the rate of teachers pay. But even if it was, who could blame them? Why should teachers do more work for no extra pay?

Reform of the Junior Cert is badly needed. Students who are 15 years old shouldn’t be faced with exams of that intensity. The only thing I even remember about my own Junior Cert is that I bluffed my way through the English Paper 1 and wrote an essay that had something to do with Paul Weller and me on bikes in Drogheda, that a bottle of Sunny Delight leaked in my bag during the history exam, and that the horror of the whole exam experience provoked an episode of insomnia and sleeping difficulties that I’ve never fully shaken off.

Everyone agrees that the JC needs radical changes, and the elements of project work and continual assessment that are being incorporated should be welcomed. But when the people who are being expected to implement these reforms object on the basis that there is no best practice or evidence to support the claims being made by the Minister for Education Jan O’Sullivan, and further that there are issues around the resources being given to support them to implement the reforms, then they should be listened to. No matter how much a media and public given to teacher bashing would like to paint this as ultimately being a pay dispute, the crux of the strike is about who actually marks the Junior Cert papers. The Minister for Education allegedly believes teachers marking their own pupils is, educationally speaking, best practice for students. The Minister has moved from saying that internal marking 100% of the time is best, to saying that 40% internal marking will do, for the purposes of getting the reforms through. It’s unclear how much money will be saved in not paying other teachers to mark the junior cert papers but it’s a substantial amount given the sheer number of students involved, and the research or evidence that the Minister is basing her claims on hasn’t appeared thus far.

There are clearly difficulties in Ireland in making teachers mark the papers of their own pupils in a high stakes exam. That’s not to say that teachers are unable to mark the papers in the same way they would with other exams and tests they set for their classes, but to point out the difficulties that present in a state where schools are controlled by completely unaccountable boards of management and very often securing employment is based on who you know. There are teachers in Ireland who are as precariously employed as a person working in McDonalds on a temporary contract because they can’t get anything other than covering someone else’s maternity leave, and then four hours a week subbing when that teacher returns to their permanent post. Teachers may not cave to pressure in exam marking, but they will certainly come under it. In many cases, the students’ marks will be as high stakes for the teachers as the students themselves.

Teachers might not actively attempt to mark students unfairly (although I wouldn’t afford the benefit of that particular doubt to the teacher I had for Junior Cert geography) but there is evidence to suggest that teachers can be influenced by irrelevant factors in marking such as gender, socio-economic background, effort and behaviour of pupils. They are only human. Many teachers are now engaging in what could more accurately described as crowd control rather than education as a result of consistent severe cutbacks to school budgets and resources by this government. It is completely unreasonable to expect them to teach their class and mark their own students’ exams in an unbiased manner while not being offered adequate training to carry out what is envisaged in the marking scheme, or even enough training to actually deliver reforms to the curricula that they actually agree with; Not to mention that teachers will be expected to continue doing all of the extra-curricular work they do for free, like teaching the choir, or coaching the camogie team, or giving extra-lessons to struggling students in their own time while being continually demoralised by a government that doesn’t value what they do.

The Minister is quick to point out how other states assess students at that level fully through internally marked exams, but they are different school systems. The 26 Counties has one of the highest pupil-teacher ratios in the EU. Thousands of students spend the duration of their school life in cold, damp, mouldy prefab buildings. There are teachers who have never taught in anything else. Schools have had 1% cuts to capitation grants every year for the past three years while pupil numbers have increased. More students with special needs assistants are attending mainstream schools than ever before, so the Department of Education changed the rules to make it harder for them to get special needs assistants to support them in the classroom. Qualified special needs assistants were let go and some replaced with Jobbridge interns. The Department recognised that there are high levels of mental health issues among students in schools and introduced suicide prevention guidelines. However they took away guidance counsellors in schools with under 500 pupils who have ordinarily supported students with anxiety and mental health difficulties, leaving teachers to fill this role. Teachers who can’t secure permanent positions are told to apply for Jobbridge internships and do the same job as their peers for their unemployment benefit plus €50 extra a week. Schools make up the funding shortfall by increasing the so-called “voluntary” contribution that parents must pay. Teachers then have to deal with stressed parents who cannot afford to pay this because the Credit Union won’t lend them anymore money or because St. Vincent de Paul have already paid their electricity bill for them this month and they can’t ask for more.

This is what our teachers deal with on top of teaching. It would benefit us all to recognise the importance of their work and the pressure that they are under right now, and for the government to address the decimation they’ve inflicted on the education system before they go introducing a new system based on research that may or may not exist, that they in no way have the capacity to deliver. This is why we should support the teachers’ strike  – despite the media driven hysteria.