Contesting the cruel treatment of abortion-seeking women

Reprod Health Matters. 2014 Nov;22(44):10-21. doi: 10.1016/S0968-8080(14)44818-3.

Abstract

This article draws on legal arguments made by civil society organisations to challenge the legal reasoning that apparently produced the decision in the Ms Y case in Ireland in August 2014. I show how legal standards of reasonableness and practicality ought to be interpreted in ways that are respectful of the patient's wishes and rights. The case concerned a decision by the Health Service Executive, the Irish public health authority, to refuse an abortion to a pregnant asylum seeker and rape survivor on the grounds that a caesarean section and early live delivery were practicable and reasonable alternatives justified by the need to protect fetal life. I argue that the abortion refusal may not have been a reasonable decision, as required by the terms of relevant legislation, for four different reasons. First, the alternative of a caesarean section and early live delivery was not likely to avert the risk of suicide, and in fact did not do so. Second, the consent to the caesarean section alternative may not have been a real consent in the legal sense if it was not voluntary. Third, an abortion refusal and forcible treatment fall below the norms of good medical practice as interpreted through a patient-centred perspective. Fourth, an abortion refusal that entails forms of cruel, inhumane and degrading treatment ought not to be a reasonable action under the legislation.

Keywords: Ireland; abortion; asylum; caesarean section; consent; cruel; human rights; inhuman and degrading treatment; negligence; rape; refusal of treatment.

MeSH terms

  • Abortion Applicants / psychology*
  • Abortion, Induced / legislation & jurisprudence
  • Abortion, Induced / psychology*
  • Cesarean Section / psychology
  • Criminal Law
  • Decision Making
  • Female
  • Human Rights*
  • Humans
  • Informed Consent
  • Ireland
  • Physician-Patient Relations
  • Pregnancy
  • Rape / psychology