Consent is not for Irish women: once a person in Ireland becomes pregnant, their right to refuse or to choose medical treatment is null and void. Self-determination is not for Irish women: once a person in Ireland becomes pregnant, they may no longer choose the direction of their lives within our borders, and if they do not have the right to leave their borders their lives become the property of our state. And as of today, even the right to be laid to rest after our deaths is not for any pregnant person in this country.
At first glance, it doesn’t seem that way. December 26th marked a High Court ruling on the case of a brain-dead woman who has been kept on
life somatic support since her death on December 3rd. She has been kept breathing, despite the unanimous wishes of her partner and family, because at the time of her death she was ~14 weeks pregnant, and Ireland’s constitution demands that the right to life of a foetus must be protected. Because of this constitutional provision- which I’ll go into in more detail in a moment, don’t you worry- none of her doctors would allow her life support to be turned off. Her family- including her two young children- have been forced to watch as the condition of her still-breathing corpse deteriorated grotesquely, waiting for the High Court to deliberate and make its decision.
It’s a hell of a way to spend Christmas.
On the morning after, though, the High Court ruled in favour of the woman being taken off somatic support. At face value this is a positive thing. It allows the woman to finally have some kind of dignity in her death, and for her family to begin to grieve her and move on. They’re not stuck with grotesque daily updates on the deteriorating condition of her body and the foetus inside it.
It looks positive- in as much as you can use a word like that in a situation like this- unless you actually read the High Court ruling. When I say “then it becomes terrifying”, I want you to understand that I am not exaggerating for effect. The implications of this ruling are terrifying, and they are macabre, because although it provides for somatic support for this woman to be switched off, it also creates precedent for the corpses of pregnant people to be sustained in future. And within this, there is no consideration whatsoever given to the wishes of the person being used this way.
I said that consent is not for Irish women. With this ruling, neither consent nor the right to a dignified and final death are for any pregnant person in this country.
I guess it’s time to explain.
A quick primer for those of you who aren’t familiar with Irish abortion law. Article 40.3.3 of our Constitution (which we normally refer to as the Eighth Amendment. Because it is) states the following:
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.
The Eighth has been around since 1983. As you can see, it equates the life of a pregnant person to that of the foetus or embryo that they’re carrying, and makes precisely zero mention of health, dignity or (god forbid*!) self determination. That’s important.
Let’s go to that High Court ruling. Emphasis here is mine:
“the provision, [the Eighth Amendment, that is] in its plain and ordinary meaning may also be seen as acknowledging in simple terms the right to life of the unborn which the State, as far as practicable, shall by its laws defend and vindicate. This does not mean that the Court discounts or disregards the mother’s right to retain in death her dignity with receive proper respect for her autonomy with due regard to the grief and sorrow of her loved ones and their wishes. Such an approach has been the hallmark of civilised societies from the dawn of time. It is a deeply ingrained part of our humanity and may be seen as necessary both for those who have died and also for the sake of those who remain living and who must go on. The Court therefore is unimpressed with any suggestion that considerations of the dignity of the mother are not engaged once she has passed away. However, when the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living.”
According to this interpretation, then, the rights of a deceased pregnant person and their loved ones, family and next of kin must be seen as secondary to those of the foetus. Our dignity matters, but our status as incubators matters more.
If that is so, then why did they agree to turn off
life somatic support?
This unfortunate unborn has suffered the dreadful fate of being present in the womb of a mother who has died, and in which the environment is neither safe nor stable, and which is failing at an alarming rate.
Elsewhere in the ruling were detailed descriptions- if you want to read them you’ll have to look yourself, but I really don’t recommend it- of the condition that this woman’s body was in. There was simply no hope that this foetus could survive.
However, two far more disturbing things are being done here. First, there is an imputing of experiences onto the foetus that doesn’t seem to have much basis in fact. Phrases like “suffering a dreadful fate” feel overly emotive when used to describe something that couldn’t be said to have the ability to understand what suffering, fate or misfortune are in the first place. Then again, we’re talking about a country that grants legal representation to foetuses, so it’s unsurprising.
However, it’s when you combine this with the way that the woman is described- an environment in which a foetus is located- that the real implications of this ruling, and the Eighth Amendment, start to show themselves. A uterus and a body are simply locations. While the foetus’s purported personhood is emphasised consistently, that of the mother- who was a person, who had a life in every sense of the word- is deemphasised. She has lost her life, and becomes merely a place.
There’s more. Here’s what all of this really comes down to:
It seems reasonable to consider prolongation of maternal somatic function to be futile if the pregnancy is of less than sixteen weeks gestation at the time of maternal brain death, given the absence of reports of successful delivery of a live foetus in these pregnancies.
There you have it. This is what was ruled. In a country where from the instant of conception a pregnant person’s life is equated with the fertilised egg implanted within them, if you die pregnant then neither you (if you can state your wishes) nor your next of kin (if you cannot) not your doctors have any say over what happens to your body after your death. It’s predetermined. Before sixteen weeks, the machine is turned off. After that, it’s kept on. Regardless of your wishes, for weeks on end, until either your foetus is delivered or your body degrades past the point where we can use it.
This law is grotesque. The Eighth Amendment, more so.
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