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.