Fetal rights: A fatal obsession?

This article was first published in Spiked Online, 3 December 2012.

The recent death of an Indian dentist at a hospital in Galway prompted an international outcry, after her husband claimed that she had been denied treatment for a miscarriage. Savita Halappanavar died of septicaemia and E coli infection in the early hours of 28 October 2012, aged 31.

Maternal deaths are rare in developed countries. The case prompted both an internal investigation by the hospital, and an external investigation by the Health Service Executive (HSE), which runs Ireland’s healthcare service. It seems that Praveen Halappanavar, Savita’s widower, rapidly lost confidence in the HSE’s ability to mount a sufficiently independent inquiry.

An extraordinary stand-off ensued, during which Mr Halappanavar successfully objected to the inclusion of three doctors from the hospital under investigation on the enquiry team. Then his lawyer upped the ante by declaring that Mr Halappanavar would not agree to release his late wife’s medical records to the enquiry team, or to assist the enquiry. Following a technical legal debate about who owns the medical records, Mr Halappanavar and his lawyer went to inspect them, only to announce that they appeared incomplete. A coroner has yet to conduct an inquest into the cause of death.

The nub of Mr Halappanavar’s complaint about his late wife’s treatment is that she was not allowed an expedited delivery, after miscarriage had been diagnosed, despite repeated requests. According to his version of events (on which the hospital has not commented, and may not agree with), the couple attended the hospital early on the morning of Sunday 21 October, when Mrs Halappanavar was 17 weeks pregnant, after she had spent an uncomfortable night suffering from back pain. Initially, they were sent home, but after breakfast, Mrs Halappanavar insisted on being re-admitted, saying something was wrong. According to her husband, her waters had ruptured and she was found to be fully dilated. Doctors told them they would lose the baby, and that her condition was irreversible.  Mrs Halappanavar was understandably extremely distressed at the news. Delivery was predicted in the next four to five hours.

However, by Sunday evening, delivery had not occurred. It remains to be seen from the notes and the statements of all those involved whether this prompted a review of Mrs Halappanavar’s management at that point, or whether, it being a Sunday evening, a decision was taken to leave matters until Monday.

According to Mr Halappanavar, over the next three days his wife was taken to a scanning room each morning, where she was scanned for signs of a fetal heartbeat. He says his wife found this distressing, and asked each time if she could end the pregnancy. On Monday, he reported that the consultant said she would enquire. On Tuesday morning, he says, the consultant returned to say this would not be possible. 

Mrs Halappanavar became seriously unwell on Tuesday evening, vomiting and shivering, and according to her husband, this caused alarm. The hospital claims that she was delivered the same day, though Mr Halappanavar says it was not until the following day. She was admitted to the High Dependency Unit, and things went from bad to worse until her death.

It is ironic that a hospital in Ireland, a country that pioneered active management of labour, could not deliver a miscarrying woman promptly. The theory behind active management is that a woman in labour should be delivered within 12 hours. A woman’s waters are broken one hour after admission and labour is augmented with syntocinon, which encourages contractions of the uterine muscles, if she fails to dilate quickly enough. If sufficient progress is not made, an operative delivery will ensue.

It is hard to understand why a woman admitted to hospital with a spontaneous miscarriage earlier on in pregnancy should not be afforded similar assistance. If a miscarrying woman cannot deliver by her own efforts, what is the objection to helping the process? It cannot be a satisfactory answer that the fetus will not survive, because its demise is inevitable, whatever the mode of delivery.

The only laws which might, in theory, be invoked to prevent this are section 58 of the Offences Against the Person Act 1861, and Article 40.3.3 of the Irish Constitution.

Section 58 creates a criminal offence:

"Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, […] shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony…" [Emphasis added.]

Article 40.3.3 was added to the Constitution after a referendum in 1983, and provides:

"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."

A woman who miscarries spontaneously is obviously outside the scope of section 58. It makes no sense to say that a doctor treating a woman in that predicament intends to procure her miscarriage, when he or she intends no such thing: indeed, a doctor would not even know what was happening, until called in. The miscarriage is irreversible, and all the doctor is doing is treating the consequences. It is also difficult to see how a doctor who puts up a syntocinon drip is administering a "poison or other noxious thing".

Does Article 40.3.3 make any difference to this common-sense analysis? Article 40.3.3 is notoriously vague, but one thing is certain: it does not create a criminal offence. At best, it is a provision which can be debated in the civil courts. It also has a rather nice get-out clause: "as far as practicable". Is it practicable for the state’s laws to require a miscarrying woman to incubate a dying fetus, at risk to herself? Surely not.

In D v Ireland, a case which was argued before the European Court of Human Rights in 2005, a woman complained that she was denied the option of terminating a 17-week pregnancy diagnosed with lethal fetal anomaly in Ireland. The Irish state produced an opinion from senior counsel expressing the argument that Article 40.3.3 would not even apply to a non-viable fetus, in that scenario, and assured the court that in Ireland this constitutional provision would not be interpreted by the courts in Ireland with "remorseless logic".

Ireland’s position before the European Court would serve to create a legitimate expectation on the part of pregnant women with non-viable pregnancies, and their doctors, that Article 40.3.3 would not be used with remorseless logic against them.

The state should have apprised those tasked with the delivery of maternity care that a remorseless approach to the application of Article 40.3.3 is inappropriate, in the context of non-viable pregnancies. If it did not, that is unfortunate: even one maternal death caused by a misunderstanding of domestic law would be one too many.