Monday 26 September 2016

The 8th Amendment is not the main issue on fatal foetal abnormalities, it is doctors' fear of the law

Dermot Cox

Published 11/08/2016 | 02:30

Members of the Labour Party take part in an event in Dublin to publicise their plan to repeal the 8th Amendment earlier this year Photo: Niall Carson/PA
Members of the Labour Party take part in an event in Dublin to publicise their plan to repeal the 8th Amendment earlier this year Photo: Niall Carson/PA

The Eighth Amendment to the Constitution says: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right." Its primary function is to clarify Article 40.1, which states: "All citizens shall, as human persons, be held equal before the law", thus clearly indicating that the unborn is also a human person and so is covered by Article 40.1.

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The Eighth Amendment to the Constitution says: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right." Its primary function is to clarify Article 40.1, which states: "All citizens shall, as human persons, be held equal before the law", thus clearly indicating that the unborn is also a human person and so is covered by Article 40.1.

What is especially interesting is what it does not say. It does not prohibit abortion; in fact, it makes no reference to abortion. It does not grant superior rights or status to the foetus, it simply grants equality to the foetus. As all of the issues that arise during pregnancy have equivalents in adult medicine, the Eighth Amendment requires that the principles established in adult medicine should be used when dealing with a foetus.

In the legal system, the concept of intent is critical in determining the nature of a crime, such as murder or manslaughter. For a medical procedure to be classed as an abortion, there must be the intent to kill the foetus.

Thus, speeding up delivery of a pre-term baby in a woman undergoing spontaneous abortion (such as with Savita Halappanavar) is not a criminal act. There is no intent to kill the foetus and since getting the baby out safely and in a timely manner is a basic principle of obstetrics, failure to do so during a spontaneous abortion would go against the principle of equality.

Doctors regularly have to make treatment decisions that benefit one patient over another: separating conjoined twins; which patient goes to theatre first after a car accident; which patient receives a donated organ; where we place a patient on a waiting list.

In all of these cases, the patients are equal under the Constitution, yet doctors and society have no problem in allowing these treatment decisions to be based on clinical factors. Since the unborn foetus has equal rights to the mother in some cases, the treatment of the mother will take priority over that of the foetus, resulting in the death of the foetus. This is the price for equality.

The Eighth Amendment is not a barrier to managing fatal foetal abnormalities, such as anencephaly, and should not force the mother to carry such a foetus to term against her will. The amendment grants a right to life to the unborn but this clearly cannot apply to a dead foetus, just as the right to life does not apply to a dead adult.

The concept of brain death is widely accepted in adults and children where there is a lack of detectable brain activity, even though the heart is still beating.

Refusing to allow the anencephalic foetus to be considered brain-dead would imply that the foetus is not equal to other citizens of Ireland and thus goes against the principle of the amendment. In fact, since most people believe that it is kinder to remove the brain-dead patient from life support, we would be doing the anencephalic child a disservice by not giving them the same rights.

At one extreme of the abortion debate are the pro-life advocates who, in their extreme manifestation, would prohibit abortion in all its forms and, it appears, would rather that both the mother and foetus die than that only the mother survives.

At the other extreme is the pro-choice group, which supports abortion for any reason, without restrictions, and, in its extreme manifestation, even supports the concept of abortion after birth.

However, the majority of people in Ireland fall between these two groups. They are not happy with the idea of abortion but accept that sometimes it is necessary, especially when the health of the mother is at risk or in the case of fatal foetal abnormalities.

For those in the pro-choice camp, the repeal of the Eighth is essential, as it clearly prevents abortion on demand. For the pro-life movement, retaining the amendment is desirable but probably insufficient for their needs - they need a specific ban on abortion.

For those in the middle ground, we have seen that maybe a repeal of the Eighth is not necessary, as we have seen that granting the foetus equality should not prevent the termination of a pregnancy when the mother's life is at risk or in the case of fatal foetal abnormalities.

So if the Eighth is not the problem, what is? The biggest issue is fear of the law. The penalties for performing an abortion for both doctor and mother are severe, making doctors wary about performing any procedure that could be classed as an abortion.

This is further complicated by any lack of guidance from the Supreme Court. So even though speeding up labour in a mother with sepsis at 20 weeks may seem to be logical, reasonable and clinically appropriate, doctors are reluctant to do so, since it is not known whether the Supreme Court would also think that it is logical and reasonable. Until such a case goes to the Supreme Court, nobody is taking a risk.

Another problem is a sense of irrationality that exists in society when dealing with the unborn child. Procedures that society accepts for children are not accepted for foetuses, even though the Eighth Amendment confers equality on the foetus.

We also have to accept that there is a law that trumps the Constitution - the Law of Nature. No matter what the Constitution says, if Nature decides labour is to begin or a foetus is dead, there is nothing we can do about it.

Dermot Cox is a lecturer at the Royal College of Surgeons

Irish Independent

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