Miss D..

By | May 13, 2007

I thought I understood the law on abortion until the Miss D case was heard last week. Its complexities left me utterly confused which appeared to place me in the same boat as many fine legal minds. Now that we have Mr Justice Liam McKechnie’s judgement, the law appears to be this: the right to life of the unborn cannot interfere with the right to travel for an abortion.

This means that any pregnant woman, even a teenager in the care of the state must be allowed travel for an abortion regardless of the circumstances. She might need the abortion if her life is at risk, if the baby is unviable or if it was conceived under unfavourable astrological conditions. Not only can she go, but if any agency or officer of the State tries to uphold the right to life of the unborn child by stopping her, they will lose their case in court and get a slap on the wrist from the judge for even trying. Is it official now? Ireland has state sanctioned abortion on demand provided it takes place in England. And whose fault is it? With delicious irony, Ladies and Gentlemen, I give you: the Pro-Life movement.

This whole sorry mess started in 1983 when the Garret Fitzgerald led government rejected the Fianna Fail proposed referendum on abortion. Peter Sutherland was the Attorney General who examined the wording and warned Garret and his cabinet that the amendment was flawed on several counts, one of which was that it could actually enshrine the right to an abortion in the constitution. What followed was an extremely bitter debate in which Fine Gael was accused of trying to introduce abortion into Ireland. The fact that the X case proved Sutherland right has become irrelevant. The subsequent referenda on travel and information all follow from this foolish 1983 so-called “pro-life” amendment.

Let’s do a quick summary of the political position today: Labour is the only party willing to commit to legislation for abortion in this country. Fine Gael and Fianna Fail have specifically stated they have no plans to provide legislation. The Progressive Democrats and the Green Party have no policy at all and Sinn Fein has issued a statement which includes key words like “compassion” but says absolutely nothing about their plans to legislate. They say the decision rests with the woman, but given this distinct lack of enthusiasm for legislation the decision appears to incorporate deciding whether to fly Aer Lingus or Ryanair.

And who can blame them? We get the politicians we deserve who work on the issues that we demand. If Irish people really wanted to deal with our dirty linen and sort out abortion once and for all, then politicians would give in to those demands. Instead the political consensus is preservation of the status quo. Here’s what that means: Every year, Irish women in their thousands should buy cheap airline tickets and slip off to England to deal with their unseemly little problems. When they come back they should keep quiet so we can pretend that there’s no abortion in Ireland. And if any complicated cases should come to court, could they please, unlike the uncooperative Miss D, pretend they are suicidal? Then the campaigners on either side can sit back and shriek about the disgrace of it all.

If you’re pro-life it’s a disgrace that judges are bringing in abortion. If you are pro-choice it’s a disgrace that women are forced into court. Everyone else is spared the challenge of working out their own position in a logical manner.

Logic of course, has been a distant relation of the abortion debate. I met a canvasser yesterday who said one woman mentioned it on the doorsteps. She was delighted that Enda Kenny wouldn’t try to introduce abortion into Ireland but that she was worried about Labour. Doesn’t she get it? Are these pro-lifers so blinded by their passion that they cannot see that we have abortion? Do they really believe that taking the life of an unborn child in England rather than Ireland somehow negates the act? But since these hysterics shout loudest then Fianna Fail and Fine Gael are afraid of them.
The time has come for political action and we are all going to have to be sensible about it. Let’s go through the main parties again. Labour’s policy is the one that I favour. They are committed to bringing forward legislation to provide for the termination of pregnancy where there is a risk to the life of the woman, including the risk of suicide; where foetal abnormality is such that the foetus will never be born alive (like Miss D’s case), and where there is a risk of significant injury to the physical health of the mother. The pro-lifers will jump up and down about this but I firmly believe a majority of people in the country would agree to abortion in these circumstances.
Legislating for the circumstances outlined by Labour is sensible and the least that the women of Ireland deserve. Irish women who discover that their baby cannot live or that their own health is dangerously at risk should not have to go to England like criminals in order to have a termination. Their doctors are denied important medical records and the babies don’t get post mortems. In fact, in 2002, the then masters of the three main maternity hospitals agreed that terminations in cases like Miss D should be available in Ireland.

In order for these proposals to have some hope of being passed in the Dail and without the debate descending into hysteria Fianna Fail and Fine Gael must change their positions. Fine Gael will have to get over the hammering they took from their conservative base so many years ago. Perhaps an election win might give them some confidence on the issue. Fianna Fail has been in power for 13 of the 15 years since the X case and refused to bring in legislation. Their policy is to do nothing when in power and oppose legislation when not in power.

It’s easy to blame the HSE for Miss D’s problems, but the truth is if we don’t ask our politicians to provide legislation then her plight is our fault.

There is no point complaining about the trauma Miss D has suffered unless those with a liberal attitude to abortion demand legislation. Thousands of women in Ireland have had abortions. Other woman should be capable of putting themselves in their shoes. All those women have husbands and partners and friends. Where are their voices? Down the pub grumbling about the HSE and Miss D instead of on the streets pushing our politicians off the fence.

19 thoughts on “Miss D..

  1. blankpaige

    Nice article, Sarah. It seems to me the fundamental problem is when you try to establish morality by legislation. The current calamitous situation has arisen from well-intentioned individuals giving a knee-jerk response without rational, calm discussion and being quick to nail their colours to not verywell thought out masts. It would be so good if one party were to say that they didn’t know were they stand on this issue. But we take all of August for a calm, rational discussion and then decide.

  2. Niall

    Enda Kenny won’t do a thing. Neither will Bertie. Both men are cowards who won’t act until the people force them to.

    The thing is, the vast majority of people in this country probably would have liked to see Miss D. get her abortion, but those same people would not like to see “free for all” abortions. The Irish people tend to think with their hearts when it comes to issues like this.

    The problem for the politicos is that they’d have to come up with legislation that allowed for abortion is cases like Miss D’s but not in cases where a child had a “normal” terminal disease or where the child had a developmental disorder like “autism”. That is not easily done because in principle there is no difference.

    On the other hand, there would be no political divident to allowing “free for all” abortions because this would (quite rightly) anger a significant portion of the population.

    What is needed is leadership. The politicos need to stop chasing our hearts. An honest debate free from sob stories and photo-shopped pictures of developing foetuses is needed. We are supposed to decide these matters with our heads, but what tends to happen is that people feel more sympathy for one side or the other (the pregnant female or the foetus) and then work backwards to justify the outcome their heart set its sights on. The would-be leaders of the nation need to force the country into THINKING about the issues, and formulting opinions based on a logical examination of all the issues involved.

    I can dream can’t I?

  3. Sarah Post author

    “The problem for the politicos is that they’d have to come up with legislation that allowed for abortion is cases like Miss D’s but not in cases where a child had a “normal” terminal disease or where the child had a developmental disorder like “autism”.”
    I dunno Niall – it seems to me that the phrase “lethal” abnormality or “incompatible with life outside the womb” covers the anencephaly cases pretty well.

  4. Niall

    Hardly Sarah.

    The child has a terminal disease, in the case of anencephaly, that disease results in the child’s death within a few short days. Now in other cases, the child might survive a few weeks, or maybe a few months, maybe even a year, or two or three. Where do you stop? On what basis can you possibly make a distinction?

    There’s a quote from Peter Straub I’ve quoted before that I think really highlights this:

    “So every life, being no more or less than a lifetime, is brief: every life, being brief is equal”.

    I’m sure that there a millions of parents the world over who have lost young children who would agree.

    The thing is that ancephaly is not “incompatible with life outside the womb”. The child often survives birth. It lives outside the womb, then it dies, just like anybody else. The assumption the underlies the quoted phrase is that somehow, if the child has no chance of reaching adulthood, it is not a “proper” person, that it is the child’s potential to achieve adulthood that results in its right to develop.

    If you accept children as being creatures with a right to life simply because they exist and not because of their potential, their intellectual ability or their value to another individual or society, then you can hardly claim that a child who suffers from anencephaly somehow has a lesser right to life.

  5. brian t

    I’m probably the wrong person to weigh in here (male, atheist), but I have to ask: what is “life”? Is everyone assuming the religious “vitalist” belief, of some supernatural “ineffable spark” that appears at conception, and wasn’t there a microsecond before that?

    If you don’t make that assumption, and don’t get emotional about it, what is the basis for calling Miss D’s anencephalopathic foetus a “life”? It had no chance of any higher thoughts or emotions, or any of the other things that make a person human, did it? I suppose I’ll be called callous for questioning any of the reactions in the popular press.

  6. Sarah Post author

    A male atheist is surely entitled to his opinion :-)
    Brian, I used to get involved in all that “when is life life stuff”, but the issue was solved the day I found out I was pregnant. It was life. Even if it was only a teency tiny zygote/embryo/whatever. I know there are all kinds of naturally occuring conditions which means that life may never see outside life but…I’m still pro-choice and I support the right to choose, irrespective of circumstances and I could place myself in all manner of circumstances where I would have an abortion, but whatever those circumstances were I wouldn’t pretend to myself that I was doing anything other than taking a life. Albeit one in the very early stages of its existence..

  7. brian t

    Thank you for that nice reply: I imagine I’d feel differently if I was a father-to-be, but then I’d hopefully recognise that I was “emotionally invested”, and not really capable of an objective assessment of such a situation. So I’d rather not see any abortion policy decided by parents-to-be, or Clergy, or anyone else with a personal iron-in-the-fire.

    But right now I don’t see life as “binary”, a one or a zero. If pregnancy lasts 40 weeks, can we call a foetus at 10 weeks “25% of a life”? I don’t know, but I know it’s not the kind of question a prospective parent would want to consider. I think any judge would need to be impassive, and not “emotionally invested”.

    Am I right in believing that the anti-abortion campaigners are possibly thinking of the way things used to be before contraception was widely available? It was “abortion as contraception”, you might say – the idea that the availability of abortion would encourage extramarital sex. But how true is that today? Would the wider availability of abortion really encourage “immoral” behaviour, when contraception is so much easier and cheaper than abortion?

  8. Niall

    Brian, I’ve tended to find that anti-abortion campaigners take a very binary appraoch to the matter as well. Most of them look at a foetus the same way most of society looks at a baby. And nobody likes killing babies.

  9. tomcosgrave

    The child has a terminal disease, in the case of anencephaly

    Niall, I can’t help but think you are twisting facts to meet your argument – anencephaly is most certainly not a disease – it is a lethal fetal abormality, the result of a failure of the neural tube closing. There is not any real chance of life in that foetus – it has no brain and it never had. Essentially it is brain dead.

    Regardless, it is the choice of the pregnant woman to decide – to force her to carry to term against her will (in any circumstance) is to force a woman to become an incubator for the pregnancy, with complete lack of regard for her own privacy or bodily integrity, or indeed, her own human rights. It would be my view that that would be a sinister development for any society to undergo. The mother is born already, the child is unborn. To consider the rights of the unborn to take pre-eminence over the rights of the already born is an absurdity.

  10. Niall

    Tom, you have missed the point almost completely. I am not twisting the facts in any way shape or form and I find the suggestion insulting.

    “Anecephaly is most certainly not a disease – it is a a lethal fetal abnormality, the result of a failure of the neural tube closing.”

    I’m not quite exactly sure what the purpose of this statement is. You claim that anencephaly is not a disease, maybe you’re using some sort of different definition, but to be honest, it doesn’t really matter. I’m happy calling it a birth defect, or a developmental disorder. I’ve seen it mentioned previously as a disease of the brain, for instance here:

    http://pathweb.uchc.edu/eAtlas/nav/msBrain.htm

    My use of the term certainly isn’t some sort of deliberate attempt to twist facts as you seem to assume. Perhaps you should question why it is that you dislike the use of the term so much?

    You also said:

    “There is not any real chance of life in that foetus – it has no brain and it never had. Essentially it is brain dead.”

    The whole point of my comment was that we had to examine what it meant to be alive.

    Why is the absence of part of the brain, even the majority important? You seem to assume that it is important, but you don’t give any justification for this assumption. Does its presence make one alive? What are the implications of this for animals? The neonatal brain has very limited capabilities. In fact, the neonatal brain is primative when compared to the brains of certain animals that humans eat for dinner. Does this mean that these animals have the same right to life as a neonate? If the ability of the brain is of no consequence in that circumstance, then why is it important in differentiating between a neonate with anecephaly and one without?

    Your claim that the it does not have a real chance of life is based on a personal definition of life. Now perhaps that definition is wonderfully comprehensive and you can justify the assumptions you’ve made, but you certainly haven’t done it here. And if you can perform such a wonderful feat, then you’ll done something nobody else has ever done.

    You also say:

    “Regardless, it is the choice of the pregnant woman to decide – to force her to carry to term against her will (in any circumstance) is to force a woman to become an incubator for the pregnancy, with complete lack of regard for her own privacy or bodily integrity, or indeed, her own human rights. It would be my view that that would be a sinister development for any society to undergo”

    Again, you’ve arrive at a conclusion that you expect everybody else to accept for no apparent reason. What on earth do you think that it is the woman’s right to decide whether or not the foetus inside her should live or not?

    “The mother is born already, the child is unborn. To consider the rights of the unborn to take pre-eminence over the rights of the already born is an absurdity.”

    Again, I ask you, why?

    That child will still be unborn twenty seconds before it is born. By this logic, if it were feasible, you would support the right of the woman to abort one twin after its sibling had been born, which would have been about two minutes before the creature in question would have otherwise been delivered.

    Do you really think that geography is the difference between having the right to life and not having the right to life? Maybe you do. But most people could not accept that.

    My point was that it is very difficult to make a logically consistent argument for making a distinction between an unborn individual who had a right to life and one who did not. The entire basis of your accusation seems to have been that you didn’t agree with me. Ridiculous.

  11. Sarah Post author

    Ah Niall, c’mon…

    “Why is the absence of part of the brain, even the majority important? You seem to assume that it is important, but you don’t give any justification for this assumption.”

    What, are you saying its not important? Don’t be such an eejit.

    “Does its presence make one alive?” em yes actually.

  12. Niall

    “What, are you saying its not important? Don’t be such an eejit”

    Strange, but I don’t ever remember saying anything even remotely like that Sarah.

    I asked why is it considered important. How you somehow managed to decide that by asking that quesion I was stating that it wasn’t important is beyond me. That would be a little like suggesting that asking why we have an army was the equivalent of suggesting that we shouldn’t have an army. Cop on girl.

    “Does its presence make one alive?” erm yes actually.”

    Then I guess you’ve never heard of people who are brain dead Sarah. And the presence of the brain is of little comfort to somebody deprived of a heart. It isn’t sufficient to simply have these structures in place. People who define life based on the presence of certain brain structures often fail to examine the assumptions that underlie the belief.

    Usually, the only reason that can be given is that the presence of these structures allows for higher thought processes. The problem with this is that infants do not display these higher thought processes.

    For those who are not paying attention, let me stress that I am not suggesting that somehow the presence of these structures is not important, only that :

    “The problem for the politicos is that they’d have to come up with legislation that allowed for abortion is cases like Miss D’s but not in cases where a child had a “normal” terminal disease or where the child had a developmental disorder like “autism”. That is not easily done because in principle there is no difference.”

    And we need laws that are based on principles, not just whatever makes 51% of the electorate feel a little better, that is exactly what brought us to the High Court in the case of Miss D.

    If this difference is so bloody obvious, why hasn’t anybody pointed it out.

  13. Sarah Post author

    Niall, you really want to start a debate on why the brain is important? They call it brain dead because you are DEAD. A machine can keep your heart pumping forever but you are DEAD. sheeeeesh.

  14. Niall

    Crap, thought I’d replied to this earlier. Oh well. Here goes again.

    Sarah. I have no interest in debating if the brain is important. I couldn’t get by without mine. However, given that many, many people consider the presence and/or absence of certain brain structures when defining life or when allocating the right to life to certain individuals, we must examine the reasons why they consider this important if we are to find a principled way of distinguishing betweem life and non-life, between those who we recognise as having a right to life and those who do not. I’ve done the equivalent of asking why things fall to the ground, and you seem to have taken it up as though I asked if things fall to the ground.

    You seem to think that it is obvious why we should give a right to life to a “normal” foetus when its mental capacity is dwarfed by that of a dog (which has no right to life), and not to a neonate with anencephaly. If it is the creature’s cognitive capacity that results in the allocation of a right to life, then why does the dog not have a greater right to life than the neonate? If it is the potential for higher thought that results in the allocation of a right to life, then what does that mean for the foetus during early stages of pregnancy? What level of probability of developing higher mental capacities must one achieve in order to receive a right to life? If it is simply membership of the human species that is important, then do cognitive capcity and/or viability matter? These are the types of questions that need to be asked, and it seems that there are no easy answers.

    Let me stress, I am not saying that I do not belief that the brain is important, or that we need to have a debate about the importance of the brain in itself. I am saying that because so many people use the presence of certain structure as the basis of their views regarding the begining of life and the allocation of a legal right to life, we have to the logic that underpins these beliefs. If you can think of a way of arriving at a principled and just legal set-up that does not involve the examination of the assumptions and logic on which the many different opinions regarding the right to life are based, then you’re wasting your time blogging. You should be sharing this secret with the rest of the world. If the answers to these questions are so bleedin’ self evident, then please, reveal them. Otherwise, it’s a bit rich to start chiding people for asking them.

  15. Niall

    Eck, instead of we have to the logic that underpins these beliefs, read we have to examine the logic that unerpins these beliefs. Ciao.

  16. Sarah Post author

    ok ok..I’ll keep this brief

    “If it is simply membership of the human species that is important, then do cognitive capcity and/or viability matter?”

    1. Membership of human is important
    2. Cognitive capacity isn’t the issue, viability is. The key distinguishing issue about anencephaly is that it is NOT about cognitive capacity: it IS about viability. The foetus has NO capacity to live outside the womb. Look, my mother was a midwife and recalls delivering these babies. Niall, this is not about disability. There is no brain. There is no skull. There is a tiny face and then no head behind it. How graphically do you want this explained?
    I think its pretty clear cut. This is a life which has NO chance, NONE of breathing for more than a few hours outside the womb. That’s how you decide. The right to life is awarded to those who have the capacity to live.

  17. Niall

    Not that I want to debate the details here Sarah, but all I’m saying is that it isn’t that simple. You say that viability is the issue, and that the neonate with ancephaly is not viable because it will die in a few hours.

    What I’m saying is that trying to legislate on the basis of such viability would be problematic. What sort of outlook does a child have to have before we consider it viable? Do we have to be confident that they’ll live 3 days, 3 months, 13 months, 3 years, 13 years… So if you want to legislate to allow abortions for people who find themselves in the same situation as Miss D, you have a method of distinguishing between a foetus with a terminal disease which results in death shortly after birth and one who is expected to die during later childhood.

    If you want to set down laws where the right to life is awarded to those with a capacity to live, then you have to decide what constitues a capcity to live. And that’s not easy.

  18. Ricky The Saint

    Coming in very late in the day on this.

    But if you step back and take a humanist approach, in that it is wrong to inflict pain or kill a another human, you have to set the rules for abortion either when the foetus/child
    a/can feel pain or
    b/ if a functional human

    Now medical science has demonstrated that a foetus can feel pain from 12 weeks, when a human becomes functional is another matter and is a great big grey area, you could argue that a 6 month old baby is not a functional human. Therfore it would be easier and more demonstrable to take a pain approach to abortion, under this premise an abortion should be permissable up to 12 weeks.

    In the UK abortion of health babies is permitted up to 24 weeks and handicapped babies up to birth. Most premature babies from 24 weeks survive and survival and fully health outcome is possible from 20 weeks now. So there appears to be some conflict, morally and medically.

    Based on scientific evidence of pain it would seem that an abortion limit of 12 weeks would be sensible in the case of normal pregnancies, as it would be very unlikely for a women not to be aware by 6 to 8 weeks giving adeqaute time for the abortion.

    In the case of abnormal pregnancy a limit of 16 weeks could be used as this would give plenty of time for medical assessment for abnormalities.

    However, if the UK took this more sensible approach, pregnany mothers of ireland would have severe problems as the lack of abnormality asessment, normal in most EU countries, and the late timing of first scan, around 20 weeks, means that irish women of abnormal babies need late term abortions and would have to go further a field proabbly to the US or Russia.

    Obviously, where the mothers life is at risk a late term abortion shoudl be available.

    The irish position on abortion means that both women and foetuses are suffering unnecessary pain.

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