Today, a landmark case will be heard in the Four Courts in Dublin.
Aja Teehan vs HSE is a High Court challenge against the HSE and the Department of Health seeking judicial review of the refusal to grant her a home birth. Aja is challenging the HSE’s denial of her right to self determination, to decide how and where she births, by refusing her the option of an informed decision.
This is a very important day for patient rights, parent’s rights, and women’s rights and it precipitates a myriad of questions like: What rights do Irish families have when it comes to childbirth in Ireland? On the face of it, we are bombarded by messages in the media that Irish women should count themselves lucky: after all, we have modern hospitals and qualified obstetricians who will attend the birth(s) of our babies – usually the latter point is made ‘in case something goes wrong’. But what about the +85% of births that are complication-free? Should the vast majority of women who are having babies be exposed to the routine interventions and potential surgical or instrumental delivery because “something could go wrong”? And for those women who were the victims of unnecessary surgical birth, do they have a choice in how and where they give birth to their subsequent babies? Perhaps the bigger and broader question to be asked is:
WHEN DO REGULATIONS & LEGISLATION CROSS THE BOUNDARY FROM PROTECTION OF A MOTHER AND BABY TO BREACHING OF A FAMILY’S RIGHT TO PRIVACY AND SELF DETERMINATION?
The Irish Minister for Justice, Alan Shatter, was quoted recently in the Irish Times as saying Ireland must shift from “overt paternalism” with regard to making decisions that are in people’s “best interests”. He went on to emphasise that a person’s right to make decisions about their own lives must be recognised and they must be “enabled and supported in that decision-making”. The Minister was speaking in relation to the long overdue Assisted Decision-Making (Capacity) Bill 2013 – but he may as well have been speaking about maternal and reproductive rights.
Ireland has a history of paternalistic attitudes towards baby-making and birth, in general. From the Magdalen Laundries, to Dr Neary and from the barbaric practice of symphysiotomy to a rapidly increasing and inexplicable c-section rate (climbing steadily and rapidly to one in three) – families have had to relinquish their rights as thinking, intelligent agents of their own free will when it comes to childbirth. Why is this?
In Ireland we ratified the European Convention of Human Rights in 1953 and it became an ACT in 2003. This Act protects all Europeans in that it:
- Makes it unlawful for certain government agencies or departments to act in a way that interferes with your human rights
- Permits the Irish courts to hear arguments about the European Convention on Human Rights in cases before them
- Means the Irish courts should use the judgments of the European Court of Human Rights when making decisions about cases in Ireland
- Helps develop Irish law that respects the rights and freedoms protected by the European Convention on Human Rights
(Taken from the Irish Council for Civil Liberties (ICCL) Info Pamphlet: Know Your Rights: The European Convention on Human Rights in Ireland)
In light of the legislation that already exists in Ireland, there should be no question with regards to a person’s autonomy and right to self-determination and privacy in this country. But this is not what is happening in reality – where families are being restricted from the simplest of requests when it comes to their rights and autonomy in childbirth and reproductive health. Even in light of a ruling by the European Court of Human Rights in 2010, whereby the court declared that a woman’s right to privacy and family life (Article 8 of the European Convention on Human Rights) was breached when she was denied a home birth – we are seeing a stark ‘mission creep’ with regards the freedom to make this decision in Ireland. The above 2010 ruling – known as Ternovsky v Hungary – set an EU precedent – but it did not make a ruling on the legal protection of midwives/midwifery. And who attends home births? Who do women build trust with and make everlasting bonds with when they choose a homebirth? Their midwives, of course.
If a government-run health service decides to seriously restrict the practice of midwives, then a woman’s right to choose a home birth becomes a moot point because even if she can secure the services of an Independent Midwife, or if she qualifies for one of the handful of hospital-led home birth schemes (known as DOMINO) – she will not genuinely be ‘allowed’ to make this choice because midwives are not covered by insurance to attend these births. To even get to the stage where a family can engage with the services of a domicillary, or home birth, midwife is becoming much more convoluted and murky. The HSE has created what can only be described as highly restrictive tables that set out who is eligible to even be considered for a home birth. These tables include such criteria as: ‘family situation’ or ‘previous gynecological procedures’ that may have absolutely no bearing whatsoever on pregnancy, labour and birth. It is hard to believe that a government who has faced economic collapse would rather ignore the overwhelming safety of home birth and support the much higher cost of hospital birth in light of the overwhelming evidence that supports the choice to birth at home. Prof Michael Turner, former Master of the Coombe Maternity Hospital, has spoken publicly about the fact that c-section births can cost twice as much as vaginal deliveries and he has published papers highlighting the need for Ireland’s maternity services to examine the alarming increase in c-sections (6% in 1966 compared to nearly 30% in 2012). Take birth out of the hospital completely, and you are talking about even greater economic and social benefits. But leaving financial arguments aside, what is really restricting woman in their choice to birth at home?
The idea that a woman is ‘not allowed’ to have a home birth and a family can not decide for themselves how and where they want to bring a child into this world underscores the prevailing ‘paternalistic attitude’ that prevails in Ireland, according to our own Minister of Justice.
It is highly rare and unlikely that a pregnant woman will put her own life before that of her baby – in fact, these situations are so unique that they have become headline news when and if they have arisen. In contrast to these rare and heartbreaking circumstances, one would be hard-pressed to find a woman who does not put her baby’s health and life in front of her own – but this should be determined solely by a woman and her family, regardless of her medical history and circumstances. Legislation and government should not have the authority to breach human rights – particularly in the face of obstetric experts who know better and, even more importantly, in the face of a woman and her family who have made an informed decision on how and where they want their baby to be born. Too frequently, the argument against this freedom to choose how and where a woman births is determined by ‘risks’ and often ignores ‘rights’.
However, Ireland is different from every other European legal jurisdiction in that it passed an amendment in 1983 – widely known as the 8th amendment, or Article 40.3.3 – whereby it was determined that the ‘unborn’ has a legal and equal right to life with that of the mother. In this case, the Irish Constitution overrules human rights legislation and a woman’s right to where and how she gives birth is eroded significantly by this amendment – which, it is interesting to note, is the only amendment in our entire Bunreacht na hÉireann that is not a government amendment. There is widespread agreement among those who advocate for a women’s choices in childbirth that best practice should always prevail; however, good governance should never replace the right to informed consent and informed refusal. The 8th amendment has a significant impact on a woman’s right to birth how and where she chooses but there is surprisingly little dialogue and research about the impact this amendment has on maternity or reproductive issues outside of the recent widely publicised abortion debate.
In the case that comes before the High Court today – July 31st, 2013 – only time will tell if the 8th amendment will play a significant part, or not, in the ultimate ruling on where Aja Teehan and Charles Brand will be ‘allowed’ to welcome the newest member of their family into this world. Perhaps the most important information to dwell on – as a supporter of Aja, as a mother, and as a concerned citizen – are your human rights in childbirth and how this case has the potential to clearly delineate that boundary between protection of mother and baby and your family’s right to self determination and privacy.
Your Irish Human Rights in Childbirth include, but are not limited to:
- The right to choose your hospital
- The right to: privacy; informed consent; refuse treatment
- The right to have maternity care that is based on the best evidence available
- The right to choose the type of care for your birth (public, private, semi-private, MLU, DOMINO (in hospital or at home), SECM
- The right to be treated in a dignified and compassionate manner.
- The right to have pain relief, or not.
- The right to a second medical opinion.
- The right to have your concerns and preferences respected.
- The right to make decisions on the care of your baby.
In addition to these rights, it is worthy to note that:
- AIMS Ireland rejects the Government’s belief that the decision on where and how to give birth is with the HSE, insurance companies and the Government
- Currently there is NO protection & NO specific legislation in the Irish State that:
- gives pregnant women rights
- protects pregnant women
- defines women’s right to autonomy in childbirth, such as NICE guidelines
See you all at the Four Courts this morning – 10am sharp – for this historic day. Landmark High Court Challenge #BirthRights and the right to self determination #ajavhse – Follow tweets @AIMSIreland #BirthRights #ajavhse #hse