Notes on Consent During Pregnancy

In light of this evening’s debate, here are a few notes on consent during pregnancy and the 8th Amendment. (We’d also recommend this guest post on our blog!)

  • Executive summary: The Eighth Amendment provides for only one right: the right of the unborn child to be born alive. It does not provide for a right to be born safely. We believe that the Eighth is being used as a scapegoat and a means for doctors to use methods, such as Active Management of Labour, that suit them and their hospitals the most.
  • A common argument from repealers is that the Eighth Amendment causes pregnant people to lose their right to refuse consent to medical treatment during pregnancy and childbirth.
  • This argument is presented by practically all repealer groups, but most often by Parents for Choice and the Association for Improvement in the Maternity Services (AIMS).
  • AIMS is not a medical organisation or an expert group. Their campaigning on this issue comes through personal experiences in the Irish healthcare system. They should under no circumstances be considered impartial. However, it is very important to listen to their experiences and never to judge, disbelieve or belittle them.
  • The Eighth Amendment-consent link arises/is enforced through section 7.7.1 of the HSE’s National Consent Policy, which reads: ‘The consent of a pregnant woman is required for all health and social care interventions. However, because of the constitutional provisions on the right to life of the unborn, there is significant legal uncertainty regarding the extent of a pregnant woman’s right to refuse treatment in circumstances in which the refusal would put the life of a viable foetus at serious risk. In such circumstances, legal advice should be sought as to whether an application to the High Court is necessary’.
  • We would argue that the Eighth Amendment is being unfairly blamed. Problems with consent existed long before Article 40.3.3º was inserted into the Constitution, have continued since it was inserted and will continue if it is repealed. A vote to repeal the Eighth Amendment on the basis of allowing pregnant people consent during childbirth is a vote based on false premises.
  • We believe this because the problem of consent in the Irish maternity system has existed since at least 1969.
  • In 1969, three Irish doctors, Kieran O’Driscoll (then Master at the National Maternity Hospital), Reginald Jackson and John Gallagher, published an article called ‘Prevention of Prolonged Labour’ in the British Medical Journal.
  • The system proposed in the article is called Active Management of Labour (AML).
  • AML has five principal points: A precise ‘beginning’ of labour is diagnosed.
    • The guarantee of labour not lasting longer than twelve hours. Artificial rupture of the membranes (ARM) is performed routinely, if dilatation of the cervix (neck of the womb) is not maintained at a rate of l cm per hour, after 3 cms plus has been reached.
    • Augmentation of contractions with synthetic oxytocin is employed if dilatation does not increase at the rate mentioned above.
    • The guarantee of not being left alone in labour, but of receiving continuous companionship from a midwifery student or medical student.
    • The progress of the labour is charted on a graph called a partogram.
  • AML’s chief aim is to reduce the number of prolonged labours.
  • While AML is an Irish innovation, it is in practice in the UK, Australia and many parts of Europe, where there are no constitutional protections for the unborn.
  • In practice in Ireland, consent is often dispensed with during the artificial rupture of the membranes.
  • Often, patients are given oxytocin without having consented to it.
  • Indeed, Midwives for Choice describes AML as a system ‘based on involuntary medical intervention to accelerate labour’.
  • The UN Committee for the Elimination of Discrimination Against Women criticised Ireland’s use of AML in a hearing in February 2017 and called for it to be abandoned.
  • We submit that the HSE’s blaming of the Eighth Amendment is an effort to avoid having to abandon AML, which allows them to streamline the birthing process, turning it into a factory-line-like procedure.
  • Mairéad Enright, prominent pro-choice activist, says: “I would instinctively argue that no 8th Amendment issue should arise in cases where a competent woman wishes to make a healthcare decision which her doctors feel is unwise, but which does not place the foetus’ life at risk. We tend to forget that the unborn has only one right – the right to be born alive. In Baby O, the Supreme Court rejected the notion that the right to life of the unborn encompassed a right to be born safely, or a right of access to medical treatment to ensure the child, once born survives infancy … We could argue that [the Eighth Amendment exerts] a … ‘chilling effect’ in terms of women’s choices around childbirth – HSE personnel imagine a constitutional duty to restrain meaningful forms of maternal choice, lest the foetus be placed at even the smallest risk. This imagined constitutional duty is, of course, a product of vernacular and not direct judicial interpretation.”
  • A case often cited is an unreported case called Mother A from 2013, which took place within Waterford Hospital.
  • Parents for Choice cite Mother A as a case where a woman wanted to deliver naturally, but her doctors were concerned that there was a risk to her unborn child if she did so. The hospital went to the High Court to obtain an order to allow them to perform a Caesarean section.
  • They neglect to mention, however, that the mother’s own life was at risk too. In an affidavit by a consultant obstetrician and gynaecologist, the court was told that if the woman had a natural birth, the baby could die or have severe brain damage, and the mother would be at a serious risk of a haemorrhage.
  • She also refused to accept her due date, insisting that her due date was much later than it actually was, raising potential issues as to whether she was in the right frame of mind.
  • In these circumstances, we submit that this was the right move for doctors to make. The woman consented to the C-section before the case went to court, and a healthy baby boy was born.
  • In summary, we believe that issues of consent are unrelated to the Eighth Amendment. It is being unfairly blamed, when the real issue is a maternity system that ignores patients simply because it suits the hospital and doctors to do things their way.

The Statistics Fairy

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