AFTER the Nazi medical experiments on human beings, the Nuremberg code was drawn up to prevent such barbarity happening again. At its core was that anybody being subjected to medical experiments must give their consent.
The treatment of 1,500 victims of symphysiotomy — a medical experiment to make sure women would have as many babies as possible — was in breach of this code as the women were not asked for permission.
The UN Human Rights Committee this week accused Ireland of being responsible for torturing these women, and failing to take responsibility for the crime.
They also took apart the government’s arguments as to why mothers whose health is in danger from a pregnancy, or who are pregnant as a result of incest or rape, or whose baby is fatally damaged and will not survive are denied an abortion.
The government’s case in fact questioned the whole concept of human rights, and suggested that if a majority of people wanted to take away the rights of any group, they were entitled to.
The statements made by Nigel Rodley, chairman of the UN Human Rights Committee when summing up the hearing into Ireland’s observance of human rights echoed what NGOs and civil rights bodies in Ireland have been saying for years: That it is time the Irish State stopped its automatic response to every scandal being to first deny, then delay, then lie, cover up and eventually, if forced, throw some money at it and hope it will go away. In all this, it takes the sides of the elites, those who wield more power than is healthy, whose concerns are for protecting their members including the medical profession.
The UN felt that much of the State’s attitudes towards women and babies was linked to a view of women as vessels rather than people, reflecting a long-outmoded attitude of a misogynist clergy and people.
For Ireland with its cherished history of defending human rights around the world, it was a deeply shameful day.
For the victims it offered the kind of hope they have long been seeking, when at last someone has listened to them and not just the vested interests.
The official report of the UN will be issued next Thursday with a range of recommendations about what the government needs to do to bring these issues into line with international human rights standards.
But the fear is that once again, it will go nowhere. And again in four years time, the same issues will come up at the next hearing.
Walter Jayawardene of the Irish Council for Civil Liberties (ICCL) remarked that the government’s statements in some instances were verbatim to the ones it delivered in 2008.
“They seemed to have just taken it off the shelves and dusted it down,” he said, adding that this time they need to see action.
The ICCL wants the government to set up a mechanism that will oversee that the recommendations are implemented, keep track of progress and be able to report on progress.
They also want a full Oireachtas debate on the recommendations from the UN, and a task force to set out how they are to be implemented and ensure this is a high political priority.
“They have a duty to Irish citizens that are entitled to have their human rights protected,” he added.
One of those who will support and call for such action in the Dáil is Ciara Conway, Labour TD from Waterford and Vice Chairperson of the Joint Oireachtas Committee on Health, Children and Youth Affairs.
Last year — 20 years after the X-case when the Protection of Life During Pregnancy Bill was going through the Dáil — she warned that criminalising women and doctors and a 10-year jail sentence was draconian as was requiring a drawn out procedure to certify a woman’s life was at risk or that she was indeed suicidal — both issues picked up by the UN committee as a breach of human rights.
“I believe that the public outside Leinster House wants to see changes,” she said.
But the current government has clearly said it will not have another referendum to change the rules on abortion — despite the fact that the previous two were lost because they were seen by the public as being too restrictive by trying to prevent suicidal women qualifying for the procedure.
But there are other options, eminent lawyers and doctors say, and these were relayed to the UN hearing.
Dr Ruth Fletcher, senior lecturer in medical law in Queen Mary’s School of Law in London and co-author of the Doctors for Choice submission to the UNHRC acknowledged that repealing the draconian Article 40.3.3 of the Constitution may be too difficult to do.
Article 40.3.3 reads: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
But the law itself is being interpreted much too narrowly and without taking into account the woman’s human rights. The Courts have not paid attention to key terms such as equality — despite internationally recognised work done on the issue in UCD.
As a result, women are treated as vessels, as the unborn are given protection that deprives women of their moral role, and their right to make moral decisions about their own lives.
Both mother and foetus cannot be equal — “Mr Rodley said it was very hard to get your head around any belief system that would prioritise the life of the unborn over the life of the women,” she added.
On the issue of a real and substantial risk to a woman’s life and health, the woman’s view must be taken into account, she said.
The Department of Health at the hearing admitted that women who were not able to travel abroad for an abortion were discriminated against.
The Irish Family Planning Association has real-life experience of such cases. Niall Behan said they see women all the time that cannot travel — either they need time to get the money, or they are refugees who cannot leave the country. “While they are trying to make arrangements, get passports, collect the money, the clock is ticking.” Many women find it abusive and insulting that they are forced to listen to a litany of advice and options when they call for counselling, he says, as the law insists that advice must be face to face and that all options must be thoroughly rehearsed.
It’s an example of the kind of paternalism the State treats women with, according to Máiread Enright, a law lecturer in Law at the Kent Law School who accompanied the Survivors of Symphysiotomy to the UN hearing.
She is very disturbed by the way the State has portrayed the survivors as elderly, confused women from a dark past. “The government did not listen to them, did not consult them and the Murphy and Walsh reports ignored their submissions”.
Instead it has offered to pay them a limited sum of money provided they first sign away all their rights. This, she points out, is contrary to the Constitution that protects everybody’s right to legal redress.
They rejected the redress and were vindicated by the UN hearing in their demand for a proper investigation and an unbiased redress scheme.
Another internationally eminent legal scholar in the area, Professor Siobhain Mullally of UCC, believes that the government will be under pressure to produce results this time as it sees itself as a good citizen at the UN and in international society.
However the shortcomings of Ireland’s political elites reflects Irish society — and she believes that Irish society will have to change first and put pressure on its politicians to follow through.
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