One of the lesser-known aspects of Ireland’s Eighth Amendment was that it supposedly impacted on the medical choices women can make during antenatal care, labour and delivery. The claim was based on a few lines in the HSE’s National Consent Policy, which then stated (and has since been amended):

…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. Relevant factors to be considered in this context may include whether the risk to life of the unborn is established with a reasonable degree of medical certainty, and whether the imposition of treatment would place a disproportionate burden or risk of harm on the pregnant woman.

This policy was held up by pro-choice campaigners as the reason that women were subjected to anything and everything from a “stretch and sweep” to a forced c-section. In most cases, their claims were nonsense. Is it true that women are subjected to medical and surgical interventions without proper or informed consent? Yes. I was one of them, and there are many other stories of women being denied proper consent during labour in particular. Is it true that (at least in the vast majority of cases) this was due to Ireland’s prohibition on abortion? No. How do we know? Because the vast majority of these anecdotes (and they were anecdotes – there has been no systematic study focusing on consent during maternity care) did not meet the criteria listed in the Consent Policy: there was no “serious risk” to the foetus, and/or the foetus was not viable, and/or there was no application to the High Court.

The misinformation around this aspect of the 2018 debate can still sting, but for what it’s worth, I knocked on hundreds of doors in the run up to the referendum and not one person ever raised consent during pregnancy as a motivating factor in removing the Eighth Amendment. It didn’t play any meaningful role in bringing about our current pro-choice laws.

However, the whole question does show how misunderstood consent is in medicine in general, as well as in pregnancy. Have you ever heard anyone say anything like the following regarding the care they received in an Irish hospital or healthcare setting?

“They won’t let me go home.”

“They’re keeping me in until X happens.”

“They won’t let me do Y.”

“They won’t sign off on Z.”

And have you ever heard a healthcare provider say anything like the following?

“We don’t allow that; it’s against hospital policy.”

“We won’t let you go over [certain value on a particular test]”

“We’ll just take a look at…”

It may surprise you to learn that not one of these statements is in line with the HSE’s own consent policy. 

When it comes to healthcare, there is often a misperception that you are somehow legally restricted in making choices around the medical and surgical procedures you are subject to. This is not true, at least in the vast majority of cases. You are the only person who can decide what happens to you in a healthcare setting. Hospitals cannot prevent you from discharging yourself, even if you are doing so against medical advice. They cannot force you to undergo any tests, treatments, or interventions. They cannot legally require you to do anything you don’t want to do. And this applies during pregnancy, labour and delivery.

Should this be the case? Good question. Pro-life people often have a gut instinct that a woman should not be able to refuse a treatment if doing so would endanger her baby. But what we have to remember here is, whenever we have an antenatal or delivery case, we’re not dealing with an abortion-minded woman. We are dealing with someone who has carried her pregnancy this far, perhaps all the way to term, and is faced with making decisions that have a massive impact on her, as well as her baby. In other words, we are very far away from the realm of making a deliberate decision to have an abortion.

In addition, these decisions are rarely straightforward. To take one example, uterine rupture occurs when the wall of the uterus tears during labour. It is a genuine emergency, particularly for the baby (6% morbidity rate) but also for the woman giving birth (1% morbidity rate). One of the most common reasons for a uterine rupture is a previous c-section – if you had a c-section on your last pregnancy, the chances of you having a uterine rupture on this pregnancy are twice as high as the normal rate if you have a vaginal birth (known as a VBAC – vaginal birth after cesarean).

Sounds really scary – why would a woman opt for a VBAC if she’s doubling the risk of a serious complication that can be life-threatening? Surely we shouldn’t allow such a woman to freely consent to a VBAC? Surely it would be better to have legal procedures, or strict hospital policies, that mean anyone who has had a previous c-section must only deliver by c-section from then on?

There are a few problems with this line of argument. First, it ignores absolute risk, and focuses on relative risk only. The risk of uterine rupture is double that for VBACs relative to a woman who has not had a previous c-section – but it doubles from one in a thousand to two in a thousand. So, if we take one thousand women who have never had a c-section, we can expect that one of them will experience a uterine rupture during a vaginal delivery, whereas if we take one thousand women having VBACs, we can expect that two of them will experience uterine rupture. Furthermore, the risk of uterine ruptures is greatest in your first VBAC, and declines thereafter, whereas the risks associated with c-sections increase with each c-section. So, there are benefits to VBACs, particularly when we consider potential future pregnancies, and there are also risks to c-sections, like all major surgical interventions. Insisting on a hard-and-fast, “don’t ever do anything to endanger the baby” rule fails to take all this nuance into account. I would argue that it’s a version of foetus tunnel vision.

I’ve dug around enough in this space to feel comfortable and confident taking a very liberal line on forced interventions during pregnancy and delivery. I basically think there should be no difference in consent within and outside of pregnancy – we should trust women to make competent decisions about their medical care, taking their healthcare providers’ advice into account, and if there are genuine concerns about her capacity to make these decisions, there is recourse to the legal system. However, I know and respect other pro-lifers who have different views, and it’s something I think about and update my opinions on regularly. So I’m not going to state with certainty that all pro-lifers should agree with my conclusion. I do, however, believe with 100% certainty that anyone, pro-life or otherwise, who wants to get embroiled in debates over whether we should limit a pregnant woman’s ability to make independent medical decisions must first do a lot of groundwork to genuinely inform themselves as to the real intricacies of the medical questions in play here. There is so much complexity, uncertainty, and nuance here. It is simply not good enough to throw out an ill-informed statement along the lines of “So long as nothing is ever done to endanger the life of the baby” and expect this to apply neatly and answer all relevant questions in all or even most cases. If you want to take a hard line, you have to study up. www.evidencebasedbirth.com is a good starting point, but you need to get into the weeds and check the actual sources and do further reading if you want to weigh in on this one way or the other.

If you’re struggling with the idea that we ever would or should permit medical decisions that might endanger a foetus’s life, it’s worth reflecting on the fact that we don’t apply that standard, or anything like it, to born children. Parents endanger their children’s lives every time they drive them somewhere, but we would never think to ban parents from driving their kids around. Sometimes people feel like the two cases aren’t comparable: it feels like there are good reasons to drive places, and that refusing permission to drive is an unreasonable burden to place on parents, but there’s no good reason to opt for one medical treatment over another if there is a risk to the baby. However, if you think about it, this is simply someone’s opinion. There is no objective standard that lets us state that the bad consequences of not driving are great enough to justify putting your kids’ lives at risk in a car, but the bad consequences of restricting women’s choices around medical decisions are never great enough to justify any increase, even a tiny increase, in risk to a foetus’s life.

If you are a pro-lifer who remains unconvinced, and who thinks that it’s reasonable, or even good, to restrict women’s right to freely consent to medical or surgical interventions for the sake of reducing risk to foetuses, then I would like to let you know that this is the kind of thing pro-choice people have in mind when they say that the pro-life worldview treats women as vessels, with fewer rights than men. I’m not saying they are right to think or say this, but I think it’s important that pro-life people are fully informed of the consequences of their positions on medical decisions during pregnancy.