The High Court decision in HSE v B has been made public today (I’ll edit to add a link once it’s available). A month ago, a woman who wished to undergo a vaginal birth after three c-sections found herself in the High Court as the HSE attempted to have her compelled to undergo a fourth c-section against her consent. The HSE case was based on the notion that the Eighth Amendment rendered them more appropriate to decide what was best for her pregnancy than she was. This is a landmark decision, because for once, it’s a maternity rights case where the resulting decision hasn’t been completely terrible.
The judgment is long and make no mistake, there is no judicial feminism in here; the Court is at pains to point out throughout the judgment that they have no idea why this woman would possibly want a vaginal birth. But ultimately it goes on to state (at Paragraph 21):
“The court concludes that it is a step too far to order the forced caesarean section of a woman against her will even though not making that order increases the risk of injury and death to both Ms. B and her unborn child.”
Essentially this means that the Court recognises the right of the HSE to pursue a case against a heavily pregnant woman on the basis of the Eighth Amendment, but the idea of legally compelling a woman to undergo a caesarean including the sedation, anaesthetic, the surgery, the pain, the recovery….and all that goes with it, was a little bit too much even by an Irish High Court’s standards.
Maternity rights activists in AIMS have been pointing out for years that the Eighth Amendment is not just a tool of coercion for women who want to access abortion services, but that it is used just as regularly against women who are continuing their pregnancies. They report that women are regularly told the guards will come to get them if they don’t turn up for their scheduled inductions. Being threatened with the guards coming to your door when you’re in the full of your health and not in a vulnerable pregnant state is one thing, but threatening a woman on the brink of her due date is quite another – it is beyond bullying, it is obstetric violence. And as AIMS have pointed out, it usually ensures that women will go along with whatever is being forced upon them by the HSE. The prospect of being brought to court, like Ms. B was, is too much for most.
The ruling is not completely terrible in that it finds that the risk to the “unborn” is not so great that it warrants overriding Ms. B’s rights to have a c-section forcibly performed on her, however as is the practice with Irish judgments there is no sense of what might constitute a *risk* to the unborn that is sufficient that a woman may have some other form of medical intervention performed on her against her will. We are not out of the woods yet. As long as the Eighth Amendment remains in the Constitution, this will not be the last Court case on the matter.
While this was a case concerning a woman who fully intended to carry her pregnancy to term, it has important implications for the tiny number of women who may find themselves before panels of doctors in an attempt to access abortions under the Protection of Life During Pregnancy Act. In the Ms. Y case a young asylum seeker, pregnant as a result of rape was deemed by a number of doctors to be suicidal. However, the HSE also felt that the way in which to avert the risk of suicide would be to perform a cesarean section on her at 24 weeks gestation instead of the abortion she requested as soon as she found out she was pregnant at 8 weeks. When Ms. Y went on hunger and thirst strike, the HSE sought and received a court order to forcibly hydrate her. The threats of court were uttered in relation to the c-section, and Ms. Y gave birth against her wishes by c-section as a result. We now wonder whether the Ms. B judgment had been delivered earlier and Ms. Y’s counsel fought the HSE at the outset of a c-section being mentioned, would the outcome have been different? Ms. B is yet another judgment to add to the mounting stacks of obstetric violence entering the courts that don’t really give us clarity one way or the other.
What is clear though is how the Eighth Amendment does not just impact those seeking abortions, but on the broader spectrum of reproductive justice. The Eighth Amendment along with a warped mentality of maternity care that infantilises women leads medical practitioners to coerce women into interventions out of a fear that they will be found to have not protected the “right to life of the unborn.” Criminalising those accessing abortions, threatening women who want natural births with garda interventions or dragging women like Ms. Y and Ms. B into the courts is obstetric violence. It demonstrates that regardless of the circumstance or your wishes in pregnancy, the State via the HSE will treat you as a vessel with no competence to make your own choice. There is no autonomy within maternity “care” and doulas are viewed with at best suspicion and at worst, contempt. There is a separate system of medical consent for pregnant women that mean effectively forced c-sections happen every day. They don’t enter the courts, but when the decision to agree to a c-section you don’t really want is made because you can’t take the bullying from medical practitioners or because you believe they will take you to court, is it really not forced?
Any kind of surgery against your will would be unpleasant to say the least. I can’t imagine getting a tooth out without having given full consent. But a forced c-section is a whole other level of violence. It is misogynist and it is degrading, and it is the State sponsored infliction of terror on pregnant women. There is no way you can undergo surgery you have been coerced into and not feel a profound blow to your sense of bodily autonomy and integrity, and those conditions are ripe for birth trauma and postpartum post-traumatic stress disorder. Women are gaslit and told their ideas about what should happen during birth are simply “baby brain” and the parallels with domestic violence are striking; indeed many women first experience violence in a relationship when they become pregnant. This is gender based violence, and if anyone objects to that analysis, then please, show me the judgment where the HSE attempted to compel a non-pregnant person undergo major invasive surgery, then colluded with the courts to make sure it happened.
What exactly will it take to ensure women are afforded autonomy over their pregnancies? Obstetric violence and coercion of pregnant women is abuse, and it is a major public healthcare problem in Ireland. Having an unwanted vaginal exam performed on you without consent is a form of violence against women that is no less real than violence against women in the home. We need to start addressing it as such so that the structural and systemic aspect of it can be picked apart and broken and so that no more Ms. Y’s or Ms. B’s find themselves before the Courts. We need to repeal the Eighth Amendment.
1. The Royal College of Surgeons of England issued new guidance on consent very recently. The press release, with a link to the full guidelines, is here:
Briefly, the guidance requires full and informed consent for an operation, and recognises that the final decision rests with the patient, an autonomous person in control of his or her body.
In law, any operation is an assault for which full and informed consent must be freely given.
2. In a caesarean section an incision is made in the muscle of the uterus; this is then stitched up, resulting in a scar. A scar is always weaker than the original tissue. After three caesareans the scar is likely to be week, and at greater risk of rupture than after one section. Hence, appropriate medical advice in the case of Ms B would be to recommend a further section. (The risk of uterine rupture after a section led to the old saying, ‘Once a caesar, always a caesar’).
3. However, it is the patient who is in control of their destiny. And for the HSE to intervene to require a patient to undergo a procedure which she did not wish to have is a gross interference by the state (government) into the autonomy of the patient. The state can therefore inflict an assault on such a person; in all other circumstances such an assault would be illegal.
4. It is not the place of the state to legislate to withdraw competencies from individuals who are otherwise of sound mind and capable of making fully informed decisions. Neither is it the place for physicians or surgeons to be able to override, through legislation, the choice of such a person.
5. Medical practice should be evidence-based, and not based on theology.
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