Ireland: Abortion denial shamed by cancer-stricken women’s ordeals, & by European Courts of HR Print E-mail

 Dublin ~Tuesday, December 21, 2010

Woman with cancer tells of her abortion ordeal

Michelle Harte says ethics forum at Cork University Hospital decided against authorising an abortion for her in Ireland on the basis that her life was not under "immediate threat" (Aidan Crawley)

By CARL O'BRIEN, Chief Reporter

A WOMAN who is terminally ill with cancer says she was forced to travel to Britain for an abortion earlier this year despite her life-threatening illness.

Michelle Harte (39), Ardamine, Co Wexford, said doctors at Cork University Hospital – where she was being treated for cancer – advised her to terminate the pregnancy because of the risks to her health.

However, she says an ethics forum at the hospital decided against authorising an abortion for her in Ireland on the basis that her life was not under “immediate threat”.

Ms Harte said she waited for about two weeks for a decision from the ethics forum, while difficulties in arranging travel contributed to a further three-week delay.

“I couldn’t believe the decision [to refuse an abortion in Ireland] when it came,” she said.

“Apparently, my life wasn’t at immediate risk. It just seemed absolutely ridiculous.”

Ms Harte, a former nurse from London, said her condition worsened significantly during this time and she was not able to receive cancer treatment because she was pregnant.

Abortion is legal in Ireland in circumstances where the life of the mother is at risk.

However, last week the European Court of Human Rights found that Ireland has failed to give full effect to this constitutional right.

Ms Harte travelled to Britain for an abortion during the summer and said she had to be helped on to the aircraft due a deterioration in her condition.

“She was very unwell,” said her partner, Neil Doolan (28) from Wexford. “She was very stressed out, physically very weak, nauseous and vomiting.”

Shortly after her return, fresh scans showed that the cancer had become much more aggressive and spread to her brain. Ms Harte, a mother of one who has been living in Ireland for five years, said she was very frustrated at what happened to her and wanted to ensure other vulnerable women did not have to experience what she went through. “The delay in having an abortion could well have made my condition worse. It certainly didn’t help.

“I would hate to see others going through this. It’s so tough when you’re not well to feel like you’re being judged for something which should be a simple procedure.”

She was keen to point out that she received excellent care from individual doctors and consultants at Cork University Hospital, but she felt the legal obstacles were unjust and unfair.

In a statement yesterday, the Health Service Executive said Cork University Hospital’s ethics forum “meets within 48 hours for emergency meetings and carefully considers any case brought before it in light of the Irish Constitution and amendments to the Constitution”.

A spokeswoman said the committee was made up of both medical and non-medical representatives.

Last week the European Court of Human Rights ruled that Ireland had breached the human rights of a woman with cancer who had to travel abroad to get an abortion.

In that case, the woman – known as “C” – had a rare form of cancer and feared it would relapse when she became unintentionally pregnant.

However, the woman said she was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued to term.

The court ruled that neither medical nor litigation options constituted “effective or accessible procedures” for the woman to establish a lawful abortion. The law, which provides serious criminal sanctions for women or doctors involved in illegal abortions, had a “chilling effect” on medical practitioners.

On foot of the ruling, the Government said it would study the findings. Minister for Health Mary Harney accepted that legislation would be needed to implement the court’s decision but indicated this was unlikely to happen before the next election.

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 Dublin ~Tuesday, December 21, 2010

'Why is simple treatment not available even when a mother's life is at risk?'

Michelle Harte says she does not know, and does not want to know, how much longer she has left to live due to cancer (Aidan Crawley)

By CARL O'BRIEN, Chief Reporter

One woman tells her story of cancer and pregnancy because she does not want others to go through what she has

MICHELLE HARTE felt it must have been a sign from above.

She was told she was probably infertile as a result of cancer treatment. In the meantime, a tumour in her liver had disappeared, while another in her lung had shrunk significantly as a result of new immunotherapy treatment. Things were looking up. She wasn’t going to be cured of cancer, but it looked as if she was making good strides in managing it.

Then, at the age of 39, she found out she was pregnant.

“It seemed like a fairytale. I was pushing 40 and had thought I’d never have another child,” she says. “I couldn’t believe it. I wanted to keep my baby. I thought, ‘There must be a reason for this’. I was even thinking that maybe the pregnancy hormones might cure the cancer. That’s the way your mind works. I was on top of the world and was determined to keep the baby.”

Her euphoria didn’t last long. The consultants told her that having a baby in her condition was highly dangerous. It would mean months without cancer treatment, at a time when she was due to start a new round of immunotherapy.

“I went to see my oncologist who referred me to a gynaecologist. From that referral, it took just two days to come to a decision that it just wasn’t viable. It would be too big a risk. It would put too much stress on the baby. And they wouldn’t be able to monitor me. I was devastated, but I knew there wasn’t any alternative.”

TERMINATING HER pregnancy, then, was the safest option. First of all, an ethics forum at Cork University Hospital – where she was receiving her cancer treatment – needed to authorise an abortion before it could take place.

“The doctors I was dealing with felt there wouldn’t be a problem. They weren’t directly involved in the ethics committee, but there was never any suggestion that there would be a problem,” she says.

“I had cancer, after all, and it wasn’t going to go away. It had stabilised for the time being, but there was no hope of a cure. The way the consultants described it was that the cancer would ‘seriously affect my lifespan’. I didn’t want to know how long I had left, because I didn’t want to be clinging on to a date.”

The ethics forum is made up of medical and non-medical people who consider any cases brought before them.

In a statement, the Health Service Executive said yesterday that the ethics forum typically meets within “48 hours for emergency meetings and carefully considers any case brought before it in light of the Irish Constitution and amendments to the Constitution”.

Abortion is legal in Ireland in cases where the life of a mother is at risk. However, the lack of legislation setting out detailed guidelines on the circumstances in which a lawful abortion can take place has long been a source of controversy.

Last week the European Court of Human Rights found the State had violated the rights of a pregnant woman in Ireland with cancer who said she was forced to go abroad for an abortion.

In the end, Ms Harte recalls that it took a number of weeks for the ethics committee to come back with a decision. There was a delay of several days in the committee meeting, she says, and based on her diary entry estimates it took about two weeks for a decision.

Her condition was beginning to worsen when she received a phone call: the forum decided she was not eligible for a lawful abortion in Ireland.

“I couldn’t believe the decision when it came. Neither could many of the doctors who had told me informally that it shouldn’t be a problem. I was basically told that I couldn’t have an abortion. Apparently, my life wasn’t at immediate risk. It just seemed absolutely ridiculous to me,” says Ms Harte.

Travelling to England for an abortion was now the only option. Every day counted in having the abortion and resuming her cancer treatment. But she wasn’t ready to travel.

Her UK passport was out of date. On top of that, finding a clinic to perform the abortion on such a vulnerable person meant finding a hospital. A private clinic would have been less likely to terminate the pregnancy of a vulnerable woman with complex health problems. By this stage she says she was about 10 or 11 weeks pregnant.

“If I had realised that I needed to go to the UK for an abortion, I would have sorted everything out. But no one mentioned it as a real possibility. It came as a real shock that I couldn’t have the procedure done here. I didn’t have the money. I didn’t even think I’d be fit for travel.”

MS HARTE’S consultant helped organise an abortion for her at St Thomas’s Hospital in London. By this stage she was growing progressively weaker, and had to be helped on to the aircraft by her partner, Neil Doolan (28).

“She was very unwell,” says Doolan. “She was very stressed out, physically very weak, nauseous, vomiting. We couldn’t afford a taxi to the hospital, so we had to get a train, and then the Tube, and then walk to the hospital. All of that was difficult.”

Ms Harte, who has worked as a nurse for 20 years, had been on disability benefit since she was diagnosed with cancer; her partner, who has spent five years studying at college, is unemployed. They say they got a loan from her family to help finance the trip.

At the hospital the plan was to have a medically induced abortion, which is the least invasive procedure. However, this failed on three occasions because her pregnancy was too advanced.

After five days in hospital, doctors decided to perform a surgical abortion.

This normally involves a general anaesthetic, but this was deemed too risky because of Ms Harte’s condition. Instead she was administered a form of gas which left her semi-conscious.

Following the abortion that evening, the doctors advised her to stay an extra night under observation, but Ms Harte said she had to go. She and Mr Doolan had a Ryanair flight booked at 6.30 the next morning and couldn’t afford to miss it.

Two hours after the abortion they got on a train and found a B&B close to Stansted airport; she remembers catching a few hours of broken sleep before they had to get up again in time for the flight home.

“The whole experience was horrendous. At home, I was very much left on my own. There was no follow-up or support, either medically or emotionally. The Hope Centre in Wexford were brilliant. But apart from that, it was back to the hospital and continuing with the cancer treatment as if nothing had happened.”

At home, her condition began to deteriorate quickly. She says she began to get awful migraines and visual distortions.

When she got a scan in early September of this year, the news from the consultants was bad: the cancer had become more aggressive. It had spread to her brain.

“I was very shook,” she says. “I’d thought that maybe I’d be able to keep plodding along as I had been. But now it was official: it was serious and it was terminal. I knew this meant there was a very serious decline in my progress.”

Plans to resume with a new round of immunotherapy were abandoned in favour of radiotherapy and chemotherapy.

YESTERDAY WAS just another day for Michelle Harte.

She was feeling a bit dizzy and nauseous, mostly the side-effects from the medication she is on. She also lost her hair two months ago following radiotherapy.

The most upsetting aspect of her condition, she says, is the way it impacts on the life of her seven-year-old son.

“He finds it hard that his mummy isn’t able to do the things she used to do before with him, or spend as much time with him as she used to,” she says.

“I did get to travel to Eurodisney with him immediately after the radiotherapy, which was difficult, but it was great to spend time with him . . . My hair started to fall out on the last day . . . It was shocking at first, and people react very strangely, but I’m used to it now.”

Ms Harte is due to have another scan in January to see how the cancer is progressing, and, possibly, another dose of radiotherapy. She doesn’t know, and doesn’t want to know, how much longer she has left.

Her motivation in telling her story publicly is simple: she doesn’t want other women to go through what she has.
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Dublin ~ Thursday December 16, 2010

Irish abortion laws breach human rights, court rules

The European Courts of Human Rights in Strasbourg adjudicates on human rights issues among all 47 member states of the Council of Europe

Full text of the European Court of Human Rights ruling (PDF): HERE
CARL O'BRIEN in Strasbourg

The European Court of Human Rights has ruled that Ireland has failed to properly implement the constitutional right to abortion where a woman is entitled to one where her life is at risk.

The ruling will put issue of abortion back on the political agenda and is likely to force the Government to introduce legislation or official guidelines on access to abortion for women whose lives are at risk.

The court unanimously ruled this morning that the rights of one of three women who took a case challenging Irish abortion laws were breached because she had no “effective or accessible procedure” to establish her right to a lawful abortion.

The woman – known only as “C” – had a rare form of cancer and feared it would relapse when she became unintentionally pregnant.

However, the woman was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued to term.

This morning, the court concluded that neither the “medical consultation nor litigation options” relied on by the Government constituted an effective or accessible procedures.

“Moreover, there was no explanation why the existing constitution right had no been implemented to date,” the court ruled.

“Consequently, the court concluded that Ireland had breached the third applicant’s – "C" – right to respect for her private life given the failure to implement the existing constitutional right to a lawful abortion in Ireland.”

The court ruled that there had been no violation of the rights of the two other women involved in the case - "A" and "B".

The Strasbourg-based court, which is separate from the EU, adjudicates on human rights issues among all 47 member states of the Council of Europe

The identities of the women, who took the case, remain confidential.

Two of them are Irish and one is a Lithuanian national who was residing in Ireland. All of them travelled to the UK to have an abortion after becoming pregnant unintentionally.

They include a woman who ran the risk of an ectopic pregnancy, where the foetus develops outside the womb; a woman who received chemotherapy for cancer and was unable to get clear advice on the dangers posed by an unplanned pregnancy; and a former alcoholic and drug abuser who feared her unplanned pregnancy would jeopardise her attempts to be reunited with her other children in the care system.

The women - supported by the Irish Family Planning Association - argued before the court last December that they were subject to indignity, stigma and ill-health as a result of being forced to travel abroad for their abortions.

The Government robustly defended the laws and said Ireland's abortion laws were based on “profound moral values deeply embedded in Irish society”.

It argued that European Court on Human Rights has consistently recognised the traditions of different countries regarding the rights of unborn children. However, it maintained that the women’s challenge sought to undermine these principles and align Ireland with countries with more liberal abortion laws.

The case was lodged before the court in 2005 and was heard last year at an oral hearing before the European Court of Human Rights's grand chamber.

This 17-judge court is reserved to hear cases that raise serious questions affecting the interpretation of the European Convention of Human Rights.

As a signatory to the European Convention on Human Rights – now incorporated into Irish law – the Government is obliged to remedy any breaches of the convention.

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 Dublin ~ Saturday December 18 2010

No more dodging the abortion issue

Decades of debate: anti-abortion advocates await the High Court decision on the Miss D case in 2007. ( Matt Kavanagh, Eric Luke and Tom Lawlor)
Decades of debate: pro-choice protesters campaign before the 1992 referendum (Matt Kavanagh, Eric Luke and Tom Lawlor)

This week’s abortion ruling in Europe will force the Irish political system to grapple with the abortion issue, after 18 years of failure to legislate, writes CARL O'BRIEN in Strasbourg

IT FELT STRANGELY anti-climactic in the draughty grand chamber of the European Court for Human Rights on Thursday morning.

A solitary bell rang out as two judges walked into a near-empty room before sitting at a sweeping semicircular bench that can seat 20 or more judges. French justice Jean Paul Costa spoke for just a few minutes to outline the case, but the content of the judgment will resonate for much longer.

The ruling effectively told Irish politicians to do what they have consistently failed to do over the past 18 years: properly implement the right to a lawful abortion in Ireland.

The uncertainty generated by the lack of legislative guidelines for doctors, together with the “chilling effect” of criminal sanctions for illegal abortion, made it far from certain that a woman could actually obtain a legal abortion here when her life was at risk. There was no room for an Irish-style fudge, the court seemed to say. The decision will force political parties to grapple with an area they have long tried to avoid.

But why have successive governments been so reluctant to touch these issues? What makes legislators promise inactivity on an issue that can cause personal anguish for many vulnerable citizens?

THE REALITY IS that hypocrisy has long dominated public discussion about abortion, with frightened legislators preferring to leave hard decisions on hard cases to the courts.

There have been no fewer than five abortion-related referendums since 1983, but the issue still divides politicians, as well as voters. The anti-abortion amendment to the Constitution in 1983 created such bitter divisions that politicians were reluctant to revisit the issue – so much so that they never put a legislative framework in place to deal with that constitutional change.

The issue came back to haunt them in 1992. A 14-year-old rape victim was brought to England by her parents to secure an abortion. The parents asked the Garda if DNA from the aborted foetus might be used to secure a conviction against the rapist.

Instead the State rushed to obtain a court order that demanded the parents return to Ireland, with their pregnant daughter, or face charges and possible imprisonment if they procured an abortion for her outside the jurisdiction.

In the midst of a divisive public debate the Supreme Court came up with an Irish solution to an Irish problem: abortion could be allowed where the life as opposed to the health of the mother was threatened. In this case suicide was the risk to the girl’s life.

The then taoiseach, Albert Reynolds, then introduced three referendum proposals, one dealing with the right to travel, another covering the right to information about abortion and the third or so-called substantive amendment dealing with the circumstance in which the threat to a mother’s health could be grounds for abortion.

Two of the proposals, the right to travel and information, were passed. However, the third was defeated by a combination of conservatives who believed that the measure was too liberal and liberals who believed that it was too conservative.

The referendums were held on the same day as the general election of 1992, which led to the formation of a Fianna Fáil-Labour coalition. Labour insisted that the programme for government include a commitment to legislate for abortion in light of the X case, as well as legislating for travel and information. In the event none of this legislation emerged.

When the Reynolds government fell in 1994 it was replaced by the so-called rainbow government led by John Bruton, which also included Labour and a commitment to legislate. Legislation to deal with travel

and information was introduced by the coalition and passed through the Dáil in

the face of opposition from Fianna Fáil. Yet, once again, legislation to cover the X case never emerged.

In 1996 the Constitution Review Group recommended that legislation be introduced to implement the X judgment, specifying the conditions under which abortion could be carried out lawfully in Ireland.

This was followed by a discussion paper – the 1999 Green Paper – which noted that legislation on lawful abortion would have several advantages. It would provide a legal framework where the need for abortion could be assessed, rather than resolving cases one by one before the courts; it would allow pregnant women whose lives are in danger

to have abortions in their home country; and it would provide legal protection for medical professionals involved in terminating pregnancies.

In 2002 the taoiseach at the time, Bertie Ahern, was defeated on a proposal to roll back the X case, having promised legislation in the event of failure. Yet again he simply walked away from the problem.

THE CHURCH OF IRELAND Bishop of Ossory, the Right Rev Michael Burrows, has been among those most critical of the Oireachtas for failing to do its duty to address these issues, particularly since the aftermath of 1992 X case. The reason, he says, is the “systematic spinelessness” of lawmakers.

“Eighteen years is a long time; it is the time it takes individual humans to come of age. As a society, however, we have failed dismally to come of age in relation to matters at the heart of the X case,” he said at a recent event.

“We still remain hypocritical and incapable of engaging with the truth about ourselves at a legislative level – despite successive referendums on these matters, tragic individual human stories are dragged all the way to the Supreme Court in the absence of legislation.”

But the Catholic Primate of All-Ireland, Cardinal Seán Brady, takes a different view. He maintains that the issue is one for the Irish people, not lawmakers.

“No law which subordinates the rights of any human being to those of other human beings can be regarded as a just law,” he said this week. “[This week’s] judgment leaves future policy in Ireland on protecting the lives of unborn children in the hands of the Irish people and does not oblige Ireland to introduce legislation authorising abortion . . . The Irish Constitution clearly says that the right to life of the unborn child is equal to that of his or her mother.”

Minister for Health Mary Harney accepted that legislation would be needed to implement the court’s decision but indicated this was unlikely to happen before the next election, which is likely in the spring.

Labour, which has called for legislation at every election since 1992, said the issue could no longer be dodged, but it would not insist on it as a “deal breaker” in the next government. Its potential coalition partner in the next government, Fine Gael, said only that it would give careful and detailed consideration to the implications of the ruling and would consider what steps needed to be taken. Fine Gael leader Enda Kenny has previously pledged not to legislate for abortion where the life of a mother is at risk.

Whatever happens, though, any future government will need to act sooner rather than later. Ireland has always implemented the binding findings of the European Court of Human Rights, even if it has taken several years to do so.

It will need to do so again, unless it is willing to risk its international reputation for upholding human rights. As much as it may not like it, the political system will not be able to shirk its responsibilities for much longer.

The case before the court : Three women and their human rights

This week’s ruling by the European Court of Human Rights was the culmination of a five-year campaign, supported by the Irish Family Planning Association (IFPA), to place an international spotlight on Ireland’s abortion laws.

The three women, who received specialist counselling and support from the association, decided to take a joint case against the State over what they felt were discriminatory restrictions on abortion here. The women – two Irish and one Lithuanian woman living in Ireland – wish to remain anonymous and have declined to give any media interviews.

The case was carefully constructed to test how our laws would hold up against the human- rights standards contained in the European Convention of Human Rights.

The first applicant, “A”, was living in poverty when she became pregnant unintentionally. Her other children were in State care and she feared that having another child would jeopardise her chances of regaining custody of her children.

The second applicant, “B”, took the morning-after pill after sex but became pregnant – she was told by doctors that she ran the risk of an ectopic pregnancy, where the foetus develops outside the uterus.

It always seemed unlikely that the court would rule in favour of these two women; to do so would significantly broaden access to abortion in Ireland on health and other grounds. The third applicant, “C”, always had the best chance of being successful. She had a rare form of cancer and feared that becoming pregnant could cause a relapse in her condition, but she was unable to get an opinion from doctors about whether she could have a lawful abortion. The European Court sided with her. It found that the lack of any legislation or official guidance on when a lawful abortion can take place was a violation of her human rights.

For the three women and the IFPA the case was regarded as a major success, even if the court found there was no violations of the rights of “A” and “B”. For Niall Behan (left), the association’s chief executive, the ruling is a “landmark day for women” given that it has found that abortion, in certain circumstances, should be legalised here.

“Through our services we know that women living in Ireland are frustrated that they have to leave the country to access health services they feel should be available to them at home,” he said. “Women don’t want sympathy; they simply want access to the health services they need.”

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 London ~ Wednesday 15 December 2010, page 36

Ireland is still in denial over abortion

Women's lives are at risk. Ireland has spent 18 years refusing to clarify the law. This cannot continue

By Fiona de Londras

Every year thousands of Irish women travel abroad for abortions. Irish women's health organisations report increasing numbers are purchasing abortion-inducing products online and using them in their homes. However, the Irish government steadfastly refuses to confront the issue.

Abortion is generally illegal in Ireland, but the sticking point is that it is not always illegal. Since a 1992 supreme court ruling in the case of a teenage rape victim, there is actually a small category of cases in which one has a right to access a termination: where there is a real and substantial risk to the life of a pregnant woman from carrying a baby to term. Not only is Ireland one of a handful of European states where abortion is restricted to this extent, but its government has avoided introducing comprehensive legislation or guidelines to determine whether someone falls into that small category where abortion is lawful.

So there is no real way in which most women can exercise that limited constitutional right. Neither is it possible for medical practitioners to advise women effectively because they lack the guidelines they need. But today the European court of human rights handed down a judgment in the cases brought by three women, A, B & C v Ireland, that may compel the government into action.

The court's decision does not really change Ireland's current legal position: they didn't find that the restriction of abortion violates the European convention on human rights. What the court did instead, when deciding in favour of Ms C, is to confirm that the failure to put in place a proper framework within which one's right to an abortion can be exercised, violates the right to privacy. This means that as a matter of international law the Irish government is required to do something about abortion; what it will do is not yet clear.

There are a couple of options. First, a constitutional referendum to ask the people to either close off the exception or to extend the availability of abortion. Pro-life campaigners have called for a referendum; but the reality is that another national vote on this issue would be difficult to implement.

Agreeing on the wording of the proposed amendment would be tortuous, and the referendum campaign would be as ugly as the three previous ones in 1983, 1992 and 2002. The second, more likely, option is that the government will introduce regulation. That will also be difficult: how many doctors' authorisations will be required? Will we need special consent where the woman is a minor?

Difficult as crafting guidelines will be, they are necessary. Because it is unconscionable for a government to have spent the past 18 years, since the supreme court urged it to legislate, in a state of avoidance. Because there are cases where women's lives are at risk – a risk compounded by having to travel, borrow money and get abortions abroad. Because medical practitioners have no effective guidance when they are treating women who may fall into this small category of cases. Because although these women have a constitutional right to choose termination, the choice to have an abortion in their own country surrounded by their support networks is denied them in practice.

Even legislation will not end the abortion debate in Ireland. Women will still have to travel if they want a termination. Today's decision doesn't address that; it leaves the question of how broadly to cast access to abortion to the state itself. With an election looming and speculation as to the role abortion will play, these issues are central to our national discourse. But behind that discourse lie real women, real stories, and a regulatory vacuum that must be filled.
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Fiona de Londras is a lecturer at University College Dublin School of Law

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