Is Irish Law to blame for the death of Savita?

Yesterday’s short post on the tragic and wholly preventable death of Savita Halappanavar provoked a comment that neatly sums up the direction that the anti-abortion lobby’s is going in it’s efforts to find a suitable bullshit excuse to defend the indefensible.

The Irish law makes provision for cases where an emergency procedure is required. However, where malpractice is evident, then it should be treated as such and punished accordigly [sic]. Make sure you have all your facts verified before you bang on about another country’s democratic process and decision to ban abortion.

You might note, by the way, that I made no comment whatsoever on Irish law in that post, which was directly specifically towards the absurd and dangerous claim that there are no circumstances in which an abortion is necessary to save the life of a pregnant woman.

Whatever – this seems to be the rapidly agreed-on bullshit excuse; Irish law allows terminations in emergency situations, so its not the law that wrong, but the doctors who refused to treat Savita Halappanavar. It’s a straightforward matter of clinical negligence, end of story.

No, sorry, it’s just not simple.

When the Irish Republic gained full independence from the UK in 1922 it needed a legal system – obviously – so it kept the one it already that, which it got from the UK. Abortion was, therefore, dealt with under sections 58 and 59 of the Offences Against the Person Act 1861, which make it illegal to use drugs or instruments to procure an abortion or supply poisons, drug or instruments for the purpose of procuring an abortion.

In 1973, fears that the Irish Supreme Court might infer an implies right to an abortion in what was then the text of the Irish constitution, an constitutional ban on abortion was introduced – the eighth amendment – the exact wording of which is as follows:

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.

So the 17 week old foetus in this case was guaranteed a right to life, under the Irish constitution, equal to that of its mother, notwithstanding the fact that the mother was irretrievably undergoing a miscarriage. According to Savita’s husband, she presented, on her initial medical examination, with a fully dilated cervix and was leaking amniotic fluid, a situation in which, according to Dr Jen Gunter, “there is no medically defensible position for doing anything other than optimal pain control and hastening delivery by the safest means possible.”

But the doctors responsible for Savita’s did nothing.

Why?

Because the foetus was still alive at the time. It had a heartbeat and even though there was no possibility of preventing the miscarriage occurring, the fact that the Irish constitution contains a ridiculous and indefensible provision conferring a foetus with a right to life, from conception, equal to that of its mother was interpreted by these doctors as granting them explicit permission to disregard any other legal provisions for emergency treatment and their own ethical duties, as doctors, and allow Savita Halappanavar to die.

She dies when an immediate, safe, termination of the pregnancy and appropriate treatment to deal with any risk of infection, which is what actually caused her death, could and should have saved her life.

Is Irish law, therefore, to blame?

Of course it is – not totally to blame, of course, because Savita’s doctors could still have done the right thing and chosen to act to save her life, but it is nevertheless clearly a contributory factor in this sorry case. Without that provision in law, giving the foetus equal rights in law to the mother, the question of whether or not to act to save Savita’s life would not have come up save as a matter of Roman Catholic religious dogma – and even in Ireland, a reliance on such dogma would prove to be a poor defence to a charge of manslaughter, which is how this case fully deserves to be treated in law.

In December 2010, the Irish government was told by the European Court of Human Rights to deal with exactly this kind of situation, either by making legislative changes or by issuing clear guidelines which acted to remove any and all ambiguities surround the question of when doctors are required to carry out terminations in order to save women’s lives.

To date, it has done nothing, largely, it seems, because Ireland’s anti-abortion lobby, and the Roman Catholic Church (naturally) have spent the last two years or so trying to shout down any notion that an abortion may be necessary to save a woman’s life in any circumstances.

What this sad case proves, definitively, is that they are lying and the real tragedy here is not just that a woman has died because they were lying but that woman has had to die, unnecessarily and in excruciating pain, to prove them wrong.

Justice, in this case, demands not only that the doctor’s responsible for Savita’s death be dealt with for clinical malpractice but also that her death should be treated, and investigated, as a matter of criminally negligent homicide.

And justice demands that the Irish government should now act, and act decisively, on the instructions of the European Court of Human Rights, so that, in future, this will never happen again.