This blog marks the first in a series of posts dedicated to exploring symphysiotomies without consent, an issue that has received recent attention as a result of three cases concerning non-consensual symphysiotomies performed on women in Ireland, all of which were dismissed by the European Court of Human Rights. In the first blog in our series, Conor O’Mahony comments on the three cases and the shortcomings of the ECtHR’s approach to this issue.
In November 2020, the ECtHR ruled inadmissible three complaints by Irish women that symphysiotomies conducted in the 1960s without their consent violated the ECHR (LF v Ireland, WM v Ireland and KO’S v Ireland). Symphysiotomy involves cutting into the fibres connecting the pubic bones to facilitate natural childbirth. In most European countries, the practice was abandoned by the mid-20th Century in favour of Caesarean sections. However, in Ireland, it continued to be used until the 1980s. Many women who had the procedure experienced significant chronic health issues afterwards. Crucially, many women (including the three applicants) alleged that they did not consent and were not even told that they were going to have a symphysiotomy.
The applicants complained (inter alia) that the absence of consent violated their right to physical integrity contrary to Article 8 (right to private life), and that symphysiotomy amounted to inhuman and degrading treatment contrary to Article 3 (freedom from inhuman and degrading treatment) of the ECHR.
However, much of the judgments focused instead on Article 6 (right to a fair trial), and on narrow technical issues surrounding the arguments made in the domestic courts and the adequacy of domestic remedies. The ECtHR ruled that the cases were inadmissible because the women had either been afforded a fair chance to pursue their case in the Irish courts or had failed to pursue remedies available to them in national law.
Complex domestic litigation had prevented the women from pursuing their claim of absence of consent by holding that the passage of time gave rise to a risk of unfairness. The ECtHR held that this was in line with the standards of a fair trial, and deferred to the findings of the Irish courts in rejecting the alternative claim pursued (namely, that the procedure was inherently unjustified).
The ECtHR sought to bolster this finding by reference to the various reports on symphysiotomy and the establishment of an ex gratia scheme, noting that Ireland had ‘not remained inactive in the face of the considerable controversy’. Notably, numerous international human rights bodies (including the UN Human Rights Committee and the UN Committee on the Elimination of Discrimination against Women) called on Ireland to conduct a prompt, thorough and independent investigation of the issue and provide remedies to the victims, and expressed the view that official reports produced in 2013 and 2014 did not discharge the State’s human rights obligations. Although the ECtHR referred to these findings early in its judgments, it ignored them in its own reasoning.
The most striking feature of the judgments is how they treated the question of consent. The ECtHR essentially accepted that the women had not provided fully informed consent to symphysiotomies, stating that it ‘has great sympathy with the plight of the applicant and the other women who only became cognisant of the fact that they had undergone a symphysiotomy several decades after the event’. However, other passages in the judgments treat the question of consent as undecided.
The Court conducted no proper analysis of whether it was acceptable to have women sign a general consent form, and later subjected to a highly invasive (and widely abandoned) procedure with no explanation of the availability of a safer alternative. Instead, this was glossed over by reference to the ‘attitudes of an earlier age, when medical paternalism was more widely accepted’. In essence, the paternalistic medical culture of the time was deemed to justify a practice that would otherwise be viewed as an egregious rights violation. The Court did not consider whether this paternalistic culture was consistent with the human rights established by the ECHR in 1950.
The judgment in KO’S ruled the complaint that symphysiotomy amounted to inhuman and degrading treatment inadmissible because the applicant had not pursued this claim against the State in the Irish courts. While it is a well-established rule that domestic remedies must be exhausted before making an application to Strasbourg, it is equally well established that applicants need only exhaust domestic remedies that have a reasonable prospect of success. The Court had previously held in O’Keeffe v Ireland that when the respondent State argues that an application should be inadmissible due to non-exhaustion, it must demonstrate, by reference to previous case law, how any such claim might succeed. However, in KO’S, the Government provided no indication of how a claim that symphysiotomy violated the right to freedom from inhuman and degrading treatment might have succeeded in the Irish Courts. It is notable in this regard that the ECHR did not become arguable in an Irish court until 2004 (meaning that Convention arguments relating to events occurring before this date had to proceed to Strasbourg).
This aspect of the judgment appears to suggest that applicants must have exhausted novel causes of action in addition to established ones before they can be deemed to have exhausted domestic remedies. But since the potential range of novel actions is essentially limitless, this reasoning poses an almost insurmountable barrier to admissibility.
Finally, the judgments entirely failed to respond to the applicant’s claim that the circumstances of the cases were captured by the reasoning in Söderman v Sweden. In Söderman, the complaint related to a man who had secretly filmed his teenage stepdaughter in the shower. No remedy was available in either the criminal or civil law; as such, the ECtHR found a violation of Article 8 as it was ‘not satisfied that the relevant Swedish law … ensured protection of her right to respect for her private life’. This is strikingly similar to the symphysiotomy cases. The applicants argued that their cases also involved a violation of personal integrity by a private actor, for which no criminal or civil remedy was available in domestic law. Unfortunately, this argument was not considered by the ECtHR in its judgments.
In summary, the cases displayed a focus that was procedural rather than substantive. Notwithstanding the fact that the applicants had pursued their claims to the highest levels of the Irish courts, and that they appeared to qualify for established exceptions to the rule that other remedies should have been exhausted, the cases were deemed inadmissible. Disappointingly, the central question of whether the procedures complied with Articles 3 and 8 was really not addressed at all.
Professor Conor O'Mahony, Deputy Dean of School of Law, University College Cork
Series Editors: Zoe Tongue, Aoife Finnerty, and Camilla Pickles