The AIMS Ireland original submission to the Citizens’ Assembly on the urgent need to repeal the 8th amendment submitted on the 16th December 2016
Comments were made as to the 8th amendment in continuing pregnancy during the Public Hearings on the 4th March 2017
As a result AIMSI Ireland made a second submission to the Citizen’s Assembly
Following our second submission we received this email from Judge Laffoy’s assistant Sharon FInegan which clarified matters further and informed us that our concerns about the role of the 8th Amendment in Continued Pregnancy had been brought to the attention of the Citizen’s Assembly.
to: Krysia Lynch <email@example.com>
date: Thu, Apr 13, 2017 at 10:57 AM
subject: Re: The role of the 8th amendment in the Delivery Room
Dear Ms. Lynch,
Ms. Justice Laffoy has asked me to thank you for your email and to apologise for the delay in responding. Ms. Justice Laffoy has asked me to say that she has carefully considered the points that you raise and has asked me to respond as follows.
In your email you state that you are “shocked and surprised to hear Judge Laffoy inform the Citizens’ Assembly last week, that there was no scope for abuse of the 8th amendment in continued pregnancy in Ireland.” Firstly, it should be noted that the Chair did not in fact make that statement. I am attaching a transcript of the proceedings for your convenience and clarity.
Nonetheless, the Judge considers that there was considerable confusion during that section of the Q and A session. As you will see from the transcript, in her interventions the Judge was aiming to ensure that the member asking the question and the expert in question, Ms. Emily Egan S.C. were not at cross purposes. However, having read the full transcript, Justice Laffoy believes that they may have been somewhat at cross purposes viz a vis the question actually being asked.
In her first substantive answer, Ms. Egan S.C. stated that that Article 40.3.3 may not be used to licence treatments without consent where the life of the foetus is not endangered:
“I think what you’re asking is whether or not article 40.3.3 could grant a license to perform certain procedures during labour even where the foetus’s life it is not as risk.”…
“Well I think, vis-a-vis the first part of the question; will article 40.3.3 be used to license treatments without consent where the life of the foetus is not endangered, I think the answer is no. Vis-a-vis the second question of whether or not procedures which are necessary might be forgiven and by that I take it you mean forgiving in the sense not viewed as either negligent or without consent or breach of the mother’s rights to bodily integrity and autonomy.”
The member then interrupted to attempt to clarify her question:
“If I may just interrupt you for one minute, I’m more talking about maybe a case taken towards the NMBI or the medical council where a doctor has performed a sweep without a woman’s consent or a midwife has broken a woman’s membranes without her consent. If she has explicitly said I do not consent to this, will they be likely to face penalties or will they be likely to be forgiven because the Eighth Amendment leaves it vague as to where they need to intervene. It’s quite difficult to explain. I’m sorry I’m not doing it justice”.
In her reply, Ms. Egan S.C. stated that she did not think the 8th Amendment affected that situation.
“I don’t think the Eighth Amendment affects that situation would be my answer”.
Justice Laffoy has consulted with Ms. Egan S.C. who has clarified that by this she meant to repeat the substance of her previous answer being that the 8th Amendment did not permit intervention without consent where the life of the foetus was not endangered- i.e. the 8th Amendment does not legally affect this situation because it only permits intervention where the life and not the health of the foetus is at risk. She was addressing the strict legal position and the member in question was addressing difficulties that may arise in medical practice.
Ms. Egan S.C. did not intend to suggest that no uncertainty could arise from the 8th Amendment or that the 8th Amendment was incapable of having any effect upon medical practice in such situations. Nor did she intend to suggest that there could never be any scope for difficulties to arise in practice in the light of the uncertainty surrounding the issue of when there is a risk or, in the words of the National Consent Policy, “a serious risk” to the life of the foetus.
Ms. Justice Laffoy has asked me to thank you for bringing this matter to her attention and has asked me to inform you that she has updated the Assembly website to provide a clarification on the matter. In addition, this will be specifically brought to the attention of the members of the Assembly.