Abortion Discussion, Part Trois

is there any actual written law in Ireland whereby a person could forcibly kill the mother to save the unborn, or is this notion one of the odd items that pop up here to confuse the unwary?

aloyisious wrote: »

is there any actual written law in Ireland whereby a person could forcibly kill the mother to save the unborn, or is this notion one of the odd items that pop up here to confuse the unwary?

There's actual (not "written" as in statue, however) law in the form of the general common law concept of "necessity". The closest analogy I'm aware of actually being litigated is separation of conjoined twins, where you can have the situation that if you do nothing, both will die in due course, but (in certain extreme cases) the procedure will kill one of the twins.

Back in the days when Caesarians were almost always fatal to the woman, there may have been actual law covering this...

recedite

volchitsa wrote: »

Which article in the law allows doctors to take this into account when deciding whether or not to end a pregnancy please?

(As for the cash award, the hospital chose not to go to court, so there was no finding of negligence that I'm aware of.)

Read the HSE report here if you want. It lists the 3 principal reasons for her death.

Key Causal Factor 1:
Inadequate assessment and monitoring that would have enabled the clinical team to recognise and respond to the signs that the patient’s condition was deteriorating due to infection associated with a failure to devise and follow a plan of care for this patient that was satisfactorily cognisant of the facts that: the most likely cause of the patient’s inevitable miscarriage was infection and the risk of infection and sepsis increased with time following admission and especially following the spontaneous rupture of the patient’s membranes.

Key Causal Factor 2:
Failure to offer all management options to a patient experiencing inevitable miscarriage of an early second trimester pregnancy where the risk to
the mother increased with time from the time that membranes were ruptured.

Key Causal Factor 3: Non adherence to clinical guidelines related to the
prompt and effective management of sepsis, severe sepsis and septic shock when it was diagnosed.

Factor 2 above means failure to offer an abortion in a situation where the mothers life was endangered but it was not practicable to save the foetus.

All the above amounts to negligence, but you are correct that because it was settled out of court that finding was never formally made.

alaimacerc wrote: »

There's actual (not "written" as in statue, however) law in the form of the general common law concept of "necessity". The closest analogy I'm aware of actually being litigated is separation of conjoined twins, where you can have the situation that if you do nothing, both will die in due course, but (in certain extreme cases) the procedure will kill one of the twins.

Back in the days when Caesarians were almost always fatal to the woman, there may have been actual law covering this...

Ta for that, sound's interesting. Will check and see if it is seen as something anyone could argue still has legal standing or justification in the courts or law library, or whether, if it is still around, it's been allow wither on the branch due to law/s being enacted to cover such matters.

Edit: deleted [not repealed] cos it couldn't be repealed, silly me. It wasn't statute law.

alaimacerc wrote: »

Ah, you didn't "change" the scenario, you merely "corrected" it. Apologies, not all of us as so fluent in Newspeak.
Is "infant" the latest word we're attempting to astroturf into the antenatal realm? That aside, you're still not addressing rece's actual case as posited, nor are you actually pointing out any actual problem with it.
Idioms, mix and match...

As far as I can tell you're simply quibbling about your distaste for the language rather than anything I've actually said, so you'll understand if I say there's nothing here that needs addressing.

alaimacerc wrote: »

You make this sound like happenstance; in reality, it doesn't address this because there's absolutely no constitutional basis on which it could do so.

I don't, but it seems you're taking it that way. No, I'm pointing out that if the POLDPA doesn't address something, anything, that doesn't mean we can infer the POPLDPAs lack of engagement infers a position as Seamus has suggested. It simply means the Act doesn't address it. It's not happenstance that it doesn't address it; it doesn't address it because as I said it's not intended to.

alaimacerc wrote: »

I don't know about "natural law", but there's certainly "common law", and there's most certainly also "actual public opinion once you've sand-blasted the veneer of hand-wringing and compatibilist blather off of it".

There certainly is common law, which is why I asked Seamus if there is some precedent we can see where the State took such an automatic action, without a debate or a court order. So far one hasn't been presented, so as yet we've no basis for the notion in common law either. Your usual characterisations aside, the state of public opinion (whatever unfounded assertions anyone may offer about it) does not amount to the State automatically choosing one life over another, nor yet prioritising it.

volchitsa

recedite wrote: »

Read the HSE report here if you want. It lists the 3 principal reasons for her death.

Factor 2 above means failure to offer an abortion in a situation where the mothers life was endangered but it was not practicable to save the foetus.

All the above amounts to negligence, but you are correct that because it was settled out of court that finding was never formally made.

I don't think that answers my question though, does it? Nor indeed does the HSE report say that the law is any different just because fetus had no chance of survival. (The term "inevitable miscarriage" isn't a legal term and certainly doesn't mean the law takes inevitable fetal death into account, it's the medical name for a type/stage of miscarriage, nothing more.)

alaimacerc wrote: »

There's actual (not "written" as in statue, however) law in the form of the general common law concept of "necessity". The closest analogy I'm aware of actually being litigated is separation of conjoined twins, where you can have the situation that if you do nothing, both will die in due course, but (in certain extreme cases) the procedure will kill one of the twins.
Back in the days when Caesarians were almost always fatal to the woman, there may have been actual law covering this...

Well... I'm not sure you could characterise a common law concept as 'actual law', but still, the common law concept of necessity is generally a defense. In order to determine if the defense of necessity could be allowed in the circumstance, someone would have to be prosecuted for the crime of taking the life of the mother in order to save that of the child; such a prosecution would rather undermine the notion that the State prioritises the life of the mother over that of the child.

I'm not aware of any law that has ever said that in the event of Caesarian the life of the mother must be prioritised over that of the child, but it sounds like aloyisious will dig it up for us if there was.

Absolam wrote: »

Well... I'm not sure you could characterise a common law concept as 'actual law', but still, the common law concept of necessity is generally a defense.

What a bizarre quibble. Are you conflating "law" and "offence in law", or seeking to imply that by one I mean the other? (If you don't mind me spelling that the traditional right-of-the-Atlantic way.) Clearly "part of common law" is "actual law" in a common law jurisdiction.

In order to determine if the defense of necessity could be allowed in the circumstance, someone would have to be prosecuted for the crime of taking the life of the mother in order to save that of the child; such a prosecution would rather undermine the notion that the State prioritises the life of the mother over that of the child.

I'm not aware of any law that has ever said that in the event of Caesarian the life of the mother must be prioritised over that of the child, but it sounds like aloyisious will dig it up for us if there was.

I'm really struggling to see where any of that is going. I get the general sense that you're attempting to put some "the two lives really are equal at law, it's just sheer happenstance that the courts have ruled in one 'symmetry-breaking' case, but not in the opposite one" spin on it. I suggest that's wildly unlikely, especially as the two are expressly of different status in common law, and only Ireland's 8th in any way muddles or "equates" the two. And law that flows directly from the 8th un-equating them pretty much settles that.

Absolam wrote: »

As far as I can tell you're simply quibbling about your distaste for the language rather than anything I've actually said, so you'll understand if I say there's nothing here that needs addressing.

Heaven forfend I should induce any longer a reply than you're inclined to make of your own volition, but no, pointing out "distortion of the facts of a case", and "misuse of terminology" aren't merely "distaste for language".

I don't, but it seems you're taking it that way. No, I'm pointing out that if the POLDPA doesn't address something, anything, that doesn't mean we can infer the POPLDPAs lack of engagement infers a position as Seamus has suggested. It simply means the Act doesn't address it. It's not happenstance that it doesn't address it; it doesn't address it because as I said it's not intended to.

And this "intention" is pure whim on the part of the legislature, then? No, plainly incorrect. The law follows the constitution, as interpreted by the supreme court, which had very clearly made a nonsense of the earlier statute.

There certainly is common law, which is why I asked Seamus if there is some precedent we can see where the State took such an automatic action, without a debate or a court order. So far one hasn't been presented, so as yet we've no basis for the notion in common law either. Your usual characterisations aside, the state of public opinion (whatever unfounded assertions anyone may offer about it) does not amount to the State automatically choosing one life over another, nor yet prioritising it.

Or indeed, well-founded characterisations. The Court ruled as it ruled, and its rulings have expressly taken public opinion into account. The state of the law, following the court's decision, very definitely amounts to such a prioritisation, for all your attempts to put more and more words in between the plain facts, and the inevitable conclusion.

Samaris

On the one hand, abortion is legal in Ireland if there is a threat to the life of the mother. That indicates that the mother's health is given a certain amount of priority (not least because the death of the mother = the death of both, bar in very rare cases).

The limits are tight though. There have been at -least- two cases of a woman falling pregnant and then being diagnosed with cancer in the last couple of years in Ireland. To me, that seems pretty clear-cut. Terminate the pregnancy so she can be treated for cancer. Or force her to carry the developing foetus for nine months until she delivers it and if she in the meantime progresses to a stage of the cancer that cannot be easily treated, or indeed treated at all, well, that's too bad.

The law as it stands in Ireland forces the latter, unless the woman can afford/is legally allowed to travel to the UK for an abortion (complicated sub-laws regarding immigrants as regards the travel aspect). Cancer is not considered an immediate enough threat to the life of the mother to allow for the termination of a pregnancy. As far as I'm concerned, that's absolutely disgraceful.

Samaris wrote: »

The limits are tight though. There have been at -least- two cases of a woman falling pregnant and then being diagnosed with cancer in the last couple of years in Ireland.

Since 2013? (I ask as I live in Cork. "A couple" is anything up to about eight.) The "C" in 2010 case at the ECHR was on exactly those grounds, but that's before the PoLDPA. The legal situation is now much clearer, but the practical one, in terms of what doctors might "in good faith" determine to be a "real and substantial risk" is still extremely opaque. I'd bet it means less than 40% (the highest I've heard made with an apparently straight face), and I'd also bet more than 0.004%. Between those sorts of bounds, I reckon it's a bit like the Drake Equation: a game all the family can play. But not for real unless you have a MBBChBAO.

Samaris

alaimacerc wrote: »

Since 2013? (I ask as I live in Cork. "A couple" is anything up to about eight.) The "C" in 2010 case at the ECHR was on exactly those grounds, but that's before the PoLDPA. The legal situation is now much clearer, but the practical one, in terms of what doctors might "in good faith" determine to be a "real and substantial risk" is still extremely opaque. I'd bet it means less than 40% (the highest I've heard made with an apparently straight face), and I'd also bet more than 0.004%. Between those sorts of bounds, I reckon it's a bit like the Drake Equation: a game all the family can play. But not for real unless you have a MBBChBAO.

Hah, I lived in Cork a good while too, it can! Easily could be 2013. Found the link again;

http://www.irishhealth.com/article.html?id=18394

Aha, okay, my bad, I didn't check the date on it and assumed it was more recent. 2010, with another case recently (recently at the time of writing) of the European Court of Human Rights ruling that Ireland had breached the human rights of another woman who was likewise forced to leave the country to terminate her pregnancy so she could get treatment for cancer. From your post there, I would assume that the latter case is the "C" case, given the name of this lady is freely reported. I must admit, I have heard nothing about this since (although it's not something I've been chasing recently!), either to indicate that it's still a thing or that it is no longer an issue. I wish I could be optimistic that things have improved, but various cases in the (actual!) last few years, such as Savita Halappanavar* makes it very hard to be.

Er, what is a MBBChBAO when it's at home?

*Autocorrect wants "Appalachian" for Halappanavar. How do you mistype Appalachian that much?

Samaris wrote: »

I must admit, I have heard nothing about this since (although it's not something I've been chasing recently!), either to indicate that it's still a thing or that it is no longer an issue. I wish I could be optimistic that things have improved, but various cases in the (actual!) last few years, such as Savita Halappanavar* makes it very hard to be.

I'd assume nothing, myself. But the "beauty" of the present law is that politicians can now say that such decisions are down entirely to the docs, and it's not up to them to tweak it further. As the medical profession is not synonymous with self-doubt and modesty, and as the population are well-known to agitate rather vigorously for ways and means to be found for "deserving" cases, my hunch is that we'll probably steer around such egregious outrages at least until the next time it's compounded by a contributory layer of medical negligence. i.e. a risk will be deemed "real and substantial" if popular sentiment is in danger of bubbling over to "that's an outrage, it shouldn't be allowed happen".

Though of course it's also difficult to factor out the influence of the "decided it wasn't worth the trouble, and just got on a plane to the UK" effect.

Er, what is a MBBChBAO when it's at home?

Irish medical degree. You can see why the Yanks decided to go with just "MD", instead.

alaimacerc wrote: »

What a bizarre quibble. Are you conflating "law" and "offence in law", or seeking to imply that by one I mean the other? (If you don't mind me spelling that the traditional right-of-the-Atlantic way.) Clearly "part of common law" is "actual law" in a common law jurisdiction.

I'm not doing either; you didn't say anything about "part of common law" you said "There's actual law in the form of the general common law concept of "necessity"." I just pointed out that I'm not sure you could characterise a common law concept as 'actual law'.

alaimacerc wrote: »

I'm really struggling to see where any of that is going. I get the general sense that you're attempting to put some "the two lives really are equal at law, it's just sheer happenstance that the courts have ruled in one 'symmetry-breaking' case, but not in the opposite one" spin on it. I suggest that's wildly unlikely, especially as the two are expressly of different status in common law, and only Ireland's 8th in any way muddles or "equates" the two. And law that flows directly from the 8th un-equating them pretty much settles that.

No, I think that 'happenstance' proposition you were putting forward was a different post. What I'm saying only goes so far as if the common law concept of necessity needed to be introduced, regardless of whether it was accepted, it would already have passed a point demonstrating that the State does not in fact prioritise the life of the mother over the child. Nothing at all about symmetry breaking, spins, status, muddling or equating; simply the the common law concept of necessity. The rest would seem to be you putting more and more words in between the plain facts and your conclusion, as you'd say; I'm just trying to keep what I say as specific as possible.

alaimacerc wrote: »

Heaven forfend I should induce any longer a reply than you're inclined to make of your own volition, but no, pointing out "distortion of the facts of a case", and "misuse of terminology" aren't merely "distaste for language". And this "intention" is pure whim on the part of the legislature, then? No, plainly incorrect. The law follows the constitution, as interpreted by the supreme court, which had very clearly made a nonsense of the earlier statute.

Since you don't seen to have pointed out either in your post, you might understand why I wasn't and amn't addressing them so.
As for the intention not to legislate for something? I'm sure it was no more a whim than not legislating for the same thing in the Road Traffic Act, and every other Act that doesn't legislate for it. Still, since Recedites point was that the legislation gives priority to the mother making the legislation unConstitutional, the fact that we both agree the legislation doesn't legislate for such a circumstance means we agree on the substantive point; the legislation doesn't give priority to the life of the mother.

alaimacerc wrote: »

Or indeed, well-founded characterisations.

I'd certainly be amused if you didn't believe your characterisations were well founded, but nevertheless, like I said, we can set them aside.

alaimacerc wrote: »

The Court ruled as it ruled, and its rulings have expressly taken public opinion into account.

Which Court ruled, and on what? How exactly did it's rulings take public opinion into account? Is this supposed to be the precedent we can see where in a "one or the other" scenario the State automatically chose the life of mother, which is implicitly stating that the mother's right to life supersedes the unborn's, without a debate or a court order, or are you putting forward something a little more tangential?

alaimacerc wrote: »

The state of the law, following the court's decision, very definitely amounts to such a prioritisation, for all your attempts to put more and more words in between the plain facts, and the inevitable conclusion.

Well, I don't know; I think we'd need to see the Courts decision and how it actually affected the state of the law before we arrived at any (inevitable or otherwise) conclusions about it really. Perhaps you could actually present the plain facts before deciding how many words it will take to attempt a conclusion?

Pardon me for asking as to which of us introduced "forcibly kill the mother to save the unborn" into this debate?

IMO, while that particular concept might have been in use within argued-law in courts here in the past, it's more than likely that, due to the passing into statute books here of acts of legislative law concerning abortion, any such concept would no longer hold effect in argued law here. POLDPA doesn't list, mention or breathe a whiff of it. It's not in the 8th either.

It seem's to me that debating the concept of ""forcibly kill the mother to save the unborn" here is a moot point as it isn't relevant to abortion now. IMO, debating it, and anything posted here related to that concept, is like a dog chasing it's tail, strange, irrelevant and getting us to go in circles.

aloyisious wrote: »

Pardon me for asking as to which of us introduced "forcibly kill the mother to save the unborn" into this debate?

Seamus introduced it, in an attempt to show that the State automatically chooses the life of the mother over the child because a natural law considers it superior, though there are no examples of it happening.

aloyisious wrote: »

It seem's to me that debating the concept of ""forcibly kill the mother to save the unborn" here is a moot point as it isn't relevant to abortion now. IMO, debating it, and anything posted here related to that concept, is like a dog chasing it's tail, strange, irrelevant and getting us to go in circles.

I think you're quite possibly correct myself, though others may disagree. So long as it's not actually off topic, personally I like a bit of a discussion; you never know what interesting nuggets may pop up.

Hotblack Desiato

A4 poster, Charlemont Street, Dublin, Friday.

recedite

Samaris wrote: »

.. Or force her to carry the developing foetus for nine months until she delivers it and if she in the meantime progresses to a stage of the cancer that cannot be easily treated, or indeed treated at all, well, that's too bad.
The law as it stands in Ireland forces the latter..

Samaris wrote: »

Aha, okay, my bad, I didn't check the date on it and assumed it was more recent.

OK thanks for clarifying that the first quoted post is not actually the law as it stands.

Today's Indo has a quarter page 3 column report on page 6 (News Politics) that the HSE (is) to finally aid parents in cases of fatal fetal abnormality. It seems Simon Harris (MFH) and Tony O'Brien (HSE/DG) are to jointly launch the new HSE guidelines "Standards for Bereavement Care following Pregnancy Loss and Perinatal Death" for hospitals tomorrow. The HSE has decided the wording behind FFA is to now read as Fatal Fetal Anomaly. The report stated that under the guidelines. bereavement care will be provided regardless of whether the mother carried the child to full-term or travelled abroad for an abortion.