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Aoife Finnerty examines the role that pregnancy exceptions to advance directive laws play in legitimising obstetric violence in the form of non-consensual treatment. Her insightful contribution highlights the issues with Ireland’s new capacity law, which is expected to be commenced in 2022 and with similar laws from the United States.

In 2018, Ireland made international headlines with the news of the repeal, by constitutional referendum, of the 8th Amendment of Bunreacht na hÉireann, which protected the unborn’s right to life. Not only had Article 40.3.3 acted as a barrier to lawful abortion, but it also had an unwelcome presence in healthcare settings. In 2014, medical professionals continued providing invasive treatment to a brain-dead pregnant woman despite protestations from her family, until the High Court determined that the 16-week old foetus had no realistic survival prospects. Before the referendum, women gave accounts of receiving substandard care, or treatment being denied outright, because of pregnancy. In practice, doctors were unable to perform medically indicated terminations because ‘only’ the woman’s health was at risk. Despite the change, Ireland’s not yet commenced Assisted Decision-Making (Capacity) Act 2015 provides that the advance decisions (‘ADs’) of pregnant women must be referred to the High Court, if honouring their decisions would have a ‘deleterious effect on the unborn’. In adjudicating, the Court must consider the impact on the foetus of ceasing/withholding treatment, and the invasiveness and duration of intervention and the risks the intervention poses to the woman. Separately, there is a presumption in favour of intervention where the woman has not stated that the refusal should apply in pregnancy.

While the Court may respect the woman’s decision and uphold the AD, it should not have to consider these decisions. The National Consent Policy states that consent is required for all interventions in pregnancy. Now that the 8th Amendment has been repealed, there should not be a risk of women’s decisions being overturned simply by virtue of them being pregnant. Even if the woman’s decision is upheld, the chance that it could be overturned purely based on pregnancy is problematic. Arguably, the message is that pregnant women do not possess rights to refuse treatment and in respect of bodily integrity and self-determination in these circumstances; rather, they must have such rights ‘given’ to them by the court. Moreover, some women – particularly of certain religious faiths – may be deterred from seeking assistance because of fear that their wishes will be overridden. Furthermore, if the purpose of Article 40.3.3 was to prevent a right to abortion being established and its extension into other areas was somewhat unforeseen – and perhaps unintended – then logically, it should not retain a presence in healthcare matters post-repeal.

‘Pregnancy exceptions’ in advance directive law are more widespread than one might think. AlabamaMissouriTexasWashington, and Wisconsin, for example, expressly render ADs, which refuse life-sustaining treatment, invalid in pregnancy. Arkansas and Iowa override an AD if a live birth is possible with continued treatment. If one has the right to refuse life-saving treatment and one separately has the right to terminate a pregnancy, then why would one not have the right to refuse treatment in advance, leading to a termination of pregnancy? Texas, for example, permits abortion up until 20 weeks’ gestation but invalidates all ADs in pregnancy. Clearly, the basis for these exceptions is questionable.

In Ireland, abortion is lawful up to 12 weeks and thereafter can only be performed if medically necessary or for fatal foetal abnormalities. Theoretically, women in Ireland may lawfully terminate a pregnancy until 12 weeks’ gestation but may not be permitted to refuse life-sustaining treatment in advance if it would be harmful to a foetus of the same gestational age. When one looks at the factors to be considered by the High Court – impact on the foetus, the risk to the woman and the invasiveness and duration of the treatment – the validity of an advance refusal of a blood transfusion, for example, is unclear. If the woman’s life will be at serious risk without a transfusion, then the impact on the foetus of withholding blood would also be grave and the impact of intervention would be overwhelmingly positive. A blood transfusion is considered a low-risk procedure of short duration with minimal recovery time, but with a degree of invasiveness. It is difficult, however, to see where the sincere religious convictions accompanying a refusal of blood neatly fit into ‘invasiveness’, ‘duration’ or ‘harm’. That is not to say that there are no other avenues to pursue when arguing against transfusion for religious reasons – the Act itself states that the very purpose of the advance directive provisions is to enable persons to be treated according to their ‘will and preferences’ and the Constitution is a source of rights in respect of bodily integrity and autonomy. Accordingly, both may be considered to fit within the discretion afforded to the Court to consider ‘any other matter which [it] considers relevant to the application’. Be that as it may, however, it cannot be said for certain that the AD of a pregnant woman would be upheld in such circumstances. That situation, in and of itself, is undesirable, as it facilitates and indeed justifies the compelled treatment of women against their clearly expressed wishes and personal beliefs just because they are pregnant.

It is not as if the ADM(C)A 2015 has not been amended since being signed. Quite the opposite in fact – it has been revised in line with new legislation, including from this year. Yet, a move to clearly delineate the extent to which these ‘pregnancy provisions’ should apply, or to remove them altogether, seems non-existent. The last thing that Irish women need is ambiguity and yet another legal instrument with the potential to go beyond its intended scope.

Aoife Finnerty, Researcher at University College Cork and PhD Candidate at University of Limerick