29 November 2012

Comment: Savita Halappanavar’s death, and Ireland’s law

In time, we will come to have a legally authoritative account of events surrounding this tragedy. For the moment, two different kinds of explanation for the non-performance of the termination seem possible, writes Ruth Fletcher, senior lecturer in law at Keele University.

According to the reports of Savita Halappanavar’s treatment, she was denied a termination of pregnancy in an Irish hospital because there was a foetal heartbeat. However, the relevant question in Irish law is whether there was a real and substantial risk to her life, and not whether or not there was a foetal heartbeat. Even if there is a foetal heartbeat, indeed even if there is a viable pregnancy, the X case judgment (1992, para. 37) established that a woman in an Irish hospital has the legal right to an abortion if her life is at risk. Medical Council Guidelines (2009, para. 21.4) also provide that “it may be necessary to intervene to terminate the pregnancy to protect the life of the mother”.

Savita’s treatment will be the subject of at least one inquiry and there will be a coroner’s report, so in time the reported factual account will be tested and we will come to have a legally authoritative account of events. For the moment, two different kinds of explanation for the non-performance of the termination seem possible on the reported facts. The first kind of explanation is that the medical team were legally mistaken in thinking that they should refuse the termination because the foetus was still alive in the sense of having a heartbeat. The second is that the medical team were acting according to the legal and professional rules, but did not believe Savita’s life was at real and substantial risk, at least not until it was too late. 

The medical team could have adopted the reported view that they should not intervene and evacuate the womb of the miscarrying pregnancy while there was a foetal heartbeat. This is a particularly conservative version of an anti-abortion argument which does not tolerate intervention while there are signs of foetal life, even if that life is going to end. The fact that the foetus is not viable given dilation at 17 weeks is not sufficient justification for intervention on this view. There are studies which cite evidence of US Catholic owned hospitals also adopting this approach. If this was the reasoning adopted by the medical team, it is at odds with the law, which says 1) that a pregnancy may be ended when there is a risk to the woman’s life, and 2) that doctors have a duty of care to women in these situations. 

Interestingly, the ‘foetal heartbeat’ type reasoning also seems to be at odds with most ‘pro-life’ advocates in Ireland who adopt doctrine of double effect type reasoning. They believe that life-saving abortion is justified as medically necessary treatment because the demise of the foetus is a secondary, unintended effect. As a result, several prominent anti-abortion spokespersons have taken the public view that the Medical Council guidelines should have prevented Savita’s death. They do not want to see any change in the law and argue that the problem was medical practice in this instance rather than medical regulation.  It remains to be seen whether they are correct about the standard of care being below normal in this case. 

The second possible scenario was that the medical team failed to intervene because they did not believe that a real and substantial risk to Savita’s life had come into being. In other words, it may have been the case that termination was medically indicated because Savita’s health and well-being were at risk. While Savita’s cervix was fully dilated she was being exposed to the risk of infection. While she was miscarrying over several days she was distressed by the demise of her wanted pregnancy and wanted the miscarriage to end. If these risks are characterised as risks to health and well-being rather than as risks to life, they do not qualify as grounds for termination in Irish law. Some may argue that exposing Savita to the risk of infection is exposing her to a real and substantial risk to her life, given the possibility that infection could not be medically managed and could go on to produce organ failure as seems to have happened in this case. This is where the difficulty may have been for the doctors in this instance. 

As Peter Boylan, the former master of the National Maternity Hospital, said in the wake of Savita’s death, there are grey areas where it is not clear that the threat posed is one which meets the test of a real and substantial risk to life.  Current law creates two difficulties here. The bright line distinction between risks to life and risks to health means that doctors may have to wait until a risk to health has become a risk to life before intervention is lawful. Secondly, while the 1861 Act is still on the statute books making doctors criminally liable for the unlawful procuring of a miscarriage, they are understandably less inclined to take the risk of intervening when there is a dispute over whether the relevant risk is life-threatening or not.

As Mary Favier and Irish pro-choice doctors have argued on the airwaves and in a submission to the European Court of Human Rights in the ABC case, they need decriminalisation in order to be able to work without the fear of criminal prosecution when they are intervening in good faith to save a woman’s life. Thus it is possible that Savita’s doctors were working to the correct legal test but took a more conservative approach to intervention given the chilling effect of the restrictive law.

Debate about legal reform before and after Savita’s case has focused on the implementation of the X case ruling. Six governments have failed to legislate since 1992.  Ireland has been found to be in breach of the European Convention of Human Rights because C, a woman being treated for cancer, had to travel for abortion and could not find a way to avail of the right to abortion which she had under domestic law. The Expert Group appointed to advise about the C decision, has submitted its report to government but it has not been published yet. (1)

At minimum women in Ireland need legislation which removes any hesitation over life-saving intervention. Doctors need to be allowed to intervene when their honest view is that they are acting to minimise a risk to a woman’s life. But legislation to implement the X case will not help all the other women whose health and well-being are threatened by viable and non-viable pregnancy. It will not challenge the failure to recognise women as the relevant decision-makers when it comes to the continuation of a pregnancy. It will not see the Irish state take public responsibility for more than the pre- and post-abortion care of women who travel abroad for terminations in non life-threatening circumstances.

Yet legislation to implement the duty to provide life-saving abortion is one significant part of turning the Irish legal consensus away from protecting empty symbols of life towards an ordinary demand that pregnancy should be a matter of choice at home. 

(1) The Report has now been published and is available here.

Also read:

Ireland: Savita Halappanavar tragedy sparks public protests. Abortion Review, 19 November 2012

Ireland: Inquiry begins into death of Savita Halappanavar. Abortion Review, 21 November 2012
Fetal rights: a fatal obsession? The death of a miscarrying woman in an Irish hospital suggests the authorities there have lost the plot. By Barbara Hewson. spiked, 3 December 2012