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Column: 'Hands off' symphysiotomy judgement did not hold Ireland to any rigorous standard

“It also suggests that if we want survivors to be treated properly, we need to hold the state to the highest possible standards in the Oireachtas.”

Máiréad Enright

THIS WEEK, THE European Court of Human Rights ruled against three women (LF, KOS and WM) who had symphysiotomies as first-time mothers in Ireland in the years between 1960 and 1965.

Symphysiotomy divides the cartilage at the front of a woman’s pelvis.

Today, doctors use it during labour, as a rare, last resort procedure. In Ireland from 1944 until 1987, some senior obstetricians used it as an alternative to Caesarean section.

LF’s symphysiotomy took place 12 days before her daughter’s birth. KO’S and WM underwent symphysiotomies during labour.

LF had signed a very broad consent form which did not expressly mention symphysiotomy. There is no evidence that KO’S or WM had signed anything. None remembers consenting to a symphysiotomy. All three, like hundred of others, reported life-long suffering and disability arising from the surgery.

What was their main argument in the case?

These cases are about the modern Irish state’s obligations to victims of past human rights abuses. The women complained that their rights to private and family life and freedom from inhuman and degrading treatment were breached. They argued that the state has not provided them with an effective remedy.

What about the symphysiotomy cases that have previously come before the Irish courts?

Those cases are part of the problem. The women had to go to Strasbourg because the Irish courts had not made appropriate remedies available. Irish law imposes strict time limits on legal actions relating to non-consensual medical treatment.

Serious evidentiary difficulties can arise with the passage of time and these rules protect the defendant hospitals. Decades had passed since the women’s operations. In the 1960s, women generally gave birth without a partner and key medical personnel were now deceased. It would be very difficult to prove whether consent was sought at the time. So, the consent issue could not be examined.

Modified medical negligence claims were permitted. To further protect the defendants, women were required to show that there were “no circumstances” in which their symphysiotomy could have been justified, at the time it was performed.

Accordingly, their chances of success were low. If their symphysiotomy was not proven to be “wholly unnecessary and inappropriate”, they lost.

One case – Kearney – succeeded.

However, that judgment was confined to symphysiotomy performed after C-section. It seemed almost impossible to prove that other controversial kinds of symphysiotomy were similarly unjustifiable.

LF had tried to make this case in relation to her symphysiotomy, done days in advance of labour. She lost in the High Court and the Court of Appeal. The Supreme Court refused a further appeal. She stumbled both in the substance of her case, and on “limitation period” issues. WM and KO’S dropped their domestic cases because it seemed futile to persist.

What about the reports the government has commissioned an investigation and its redress scheme?

The women argued that, although the Irish state had produced three reports on the symphysiotomy issue, none constituted an independent investigation. While they accepted that Ireland had established a limited redress scheme for survivors of symphysiotomy, they argued that this did not properly acknowledge the rights violations they had suffered.

None applied to the scheme because it required them to give up their court cases as a condition of accepting any money.

Why did the European Court not find in their favour?

The core decision was that the women were wrong to frame their claims in terms of inhuman and degrading treatment.

The Court asserted that medical treatment will rarely be considered inhuman and degrading.

It did not analyse whether symphysiotomy might be one such rarity.

A past ruling held forced sterilisation was ‘inhuman and degrading treatment’ because it ‘constitutes a major interference with a person’s reproductive health status’ and ‘one of the essential bodily functions of human beings’. The Court did not explain why the same cannot be said of symphysiotomy.

Because the Court did not characterise symphysiotomy as inhuman and degrading treatment, the narrowness of the available actions under Irish law mattered much less.

The Court maintained that states enjoy significant discretion in how they manage medical negligence claims, including discretion to impose limitation periods, or require reformulated claims.

It prioritises procedural fairness to defendants.

The Court was not concerned with whether claims in the domestic courts are easy to win.

It asked whether they are accessible in principle.

In particular, the Court was satisfied that the Irish courts’ investigation of LF’s claims was ‘careful’, even if it was very narrow. It held that if LF was concerned that the action available in Irish law was too narrow to vindicate her human rights, she should have raised that in the Irish courts. The Court does not examine whether she could have succeeded.

The Court also held, based on past precedent, that the Irish state was not obliged to carry out any independent inquiry into symphysiotomy’s wider practice, even though symphysiotomy affected hundreds of women.

The Court could not re-evaluate or re-assess the contents of the reports already published by the state.

The Court noted that other international human rights actors, and survivors have criticised the state’s approach, and particularly aspects of the Walsh and Harding-Clark reports. However, it did not engage with these criticisms in any detail.

Finally, the Court did not accept the women’s arguments about the inadequacies of the redress scheme, because they had not sought to judicially review the scheme in the Irish courts.

However, it suggested that the scheme was adequate for the purposes of this issue.

It noted that the scheme:

  • was widely publicised
  • accepted some late applications
  • provided payments which were ‘not inconsequential’, even if they were lower than a court might award in a successful negligence claim
  • calibrated those payments to the degree of injury, even if it did not offer an individualised assessment of each claim.

It did not criticise the waiver requirement.

It seemed to approve of the state’s general rationale for establishing these schemes: using the scheme was less stressful, expensive and time-consuming and carried a greater prospect of success than going to court.

Didn’t Ireland owe women a duty to protect them from symphysiotomy, back in the 1960s?

The Court didn’t say.

KO’S alone argued that the state owed women an obligation to protect them from inhuman and degrading treatment, and had failed in that obligation by allowing non-emergency symphysiotomies to take place in Ireland.

The Court did not engage with this argument, because KO’S had never made it in the Irish courts.

Again, applicants are obliged to demonstrate that they have ‘exhausted domestic remedies’ before taking their case to Strasbourg, unless it would be ‘obviously futile’ to do so.

On this point, KO’S had not satisfied that test.

Is this a win for the Irish state?

This is a ‘hands off’ judgment.

The Court has not held Ireland to any particularly rigorous standard here.

The Court’s references to the historical nature of these cases are worrying.

It acknowledges that its decisions related to more recent disputes in obstetric care have emphasised that childbirth encompasses profound questions of women’s rights to information, reproductive health and physical and moral integrity.

Nevertheless, it insists that Irish symphysiotomies are different, because they took place in ‘an earlier age’ when ‘medical paternalism’ was ‘more widely accepted’.

From a feminist perspective, the conditions of that allegedly ‘wide acceptance’ are precisely the issue.

First person testimony published by Survivors of Symphysiotomy demonstrates that women did not welcome painful and damaging surgeries.

Rather, their compliance was expected and enforced – to such an extent that they did not recognise their symphysiotomies as harmful until some decades later.

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In explaining why they complied with their doctors’ decisions, they emphasise religion and structural gender discrimination as central to their vulnerability.

The Court is not a tribunal of history. But history matters so much here.

The LF judgment repeats several times, without interrogating, the state’s association of symphysiotomy with Irish Catholic approaches to reproductive medicine.

That is, in many ways, the crux of the dispute between the women and the state.

The state maintains that the practice of symphysiotomy in Ireland was so distinctive because Irish law embodied Catholic social teaching.

Restrictions on access to contraception and sterilisation increased the risks associated with multiple births and repeat C-sections. Symphysiotomy was used more expansively in order to avoid those risks.

Women argue that the minority of doctors who preferred symphysiotomy to C-section enthusiastically supported laws which restricted women’s reproductive choices, and continued to develop symphysiotomy even when those laws were liberalised.

They overrode women’s personal decisions, and ignored the short and long-term risks which symphysiotomy posed to women’s health.

We cannot accurately characterise symphysiotomy as a potential legal wrong without first making a decision about the nature of symphysiotomy.

Is it a medical response to an immutable religious context? Or is it an active part of creating that context: a conservative Catholic solution to a conservative Catholic problem?

Another worry is that this judgment will undermine Irish human rights advocates’ efforts to improve broader state practice on historical injustice, especially as regards inquiry and redress.

On the other hand, the medicalisation of women’s experiences may distinguish symphysiotomy from other forms of gendered injustice – for example, the mother and baby homes – currently on the government’s agenda.

The homes’ carceral associations, the lower age profile of adopted people and perhaps the mass involvement of adopted men, may mean that this group can avoid the distressing fate meted out to survivors of symphysiotomy.

This judgment, however, may suggest that if we want survivors to be treated properly, we need to hold the state to the highest possible standards in the Oireachtas rather than ask survivors to undertake the extensive strategic litigation apparently required by the European Court of Human Rights.

Mairead Enright is Reader in Feminist Legal Studies at the University of Birmingham and a Leverhulme Research Fellow.

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