This Story Doesn’t Make Sense

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A timeline of events surrounding the refusal of abortion to an asylum seeker who said she had been raped,  according to versions given by the HSE and The Irish Family Planning Association.

They can’t all be telling the truth.

January 2014: The Protection of Life During Pregnancy Act 2013 comes into force
Section 9 of the Act provides that it shall be lawful for

– an obstetrician at an appropriate institution (a list of which in the Schedule to the Act includes most hospitals within the State)
– to carry out a medical procedure in respect of a pregnant woman in the course of which, or as a result of which, an unborn human life is ended
– where three medical practitioners (an obstetrician and two psychiatrists) having examined the pregnant woman, have jointly certified in good faith that there is:

(i) a real and substantial risk of loss of the woman’s life by way of suicide, and
(ii) in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure.

February 2014: The woman in this case conceives, allegedly due to a rape in her country.

March/April 2014:
The woman arrives in Ireland claiming asylum.

Early April 2014: Pregnancy identified during routine refugee medical assessment by Health Service Executive. HSE nurse refers woman to Irish Family Planning Association (IFPA) for confirmation of pregnancy and advice.

Pregnancy confirmed by IFPA.

The woman informs IFPA that she is not capable of going through with the pregnancy and could die because of it. IFPA informs woman that abortion is available in England up to 24 weeks but that documentation would have to be arranged in order for her to travel for England and that this process would take six weeks.

A subsequent hospital scan finds that the woman is 8 weeks and 4 days pregnant which even allowing for a six week delay in processing travel documentation should permit an abortion in England within the 24 week time limit. Documentation is completed by IFPA and submitted and the woman believes the process is underway.

Late May 2014 (14-15 weeks pregnant): The woman is informed by an IFPA counsellor that although it is not too late for her to have an abortion in England which it is stated can be carried out at up to 28 weeks (in fact the deadline in England is 24 weeks but the woman is still well within that limit) the cost of the abortion ‘could be’ over €1500 Euros (including travel, abortion and possible overnight stay’) and that the State would not fund these costs.

The woman is told the problem is money.

She does not appear to have been given details of charitable organisations in the United Kingdom, which fund abortions for impoverished women. The woman then states: “I could die because of this pregnancy.I am prepared to kill myself.” That evening, the woman attempts suicide, but is interrupted.

Contact between the IFPA and the  woman apparently breaks down after she is moved to a new accommodation centre within the direct provision system.

Around this time, the IFPA make contact with the HSE nurse who initially referred the woman alerting that nurse to her deteriorating mental health. It is unclear whether or not the question of termination under the 2013 Act was discussed in this phone call. It does not appear to have been discussed with the woman by the IFPA.

Mid/Late July: The woman goes to a General Practitioner, explains the situation and states that she is suicidal. She is subsequently admitted to a psychiatric hospital and is interviewed by two psychiatrists. Her pregnancy is confirmed at 24 weeks and 1 day – too far progressed for abortion in the United Kingdom.

July 25- 27: Woman commences thirst and hunger strike.

Care order obtained permitting hydration.

Panel of three experts convened. Current reports ( “the woman’s request for a termination on the basis of suicidality was acceded to” HSE) indicate that the panel was in agreement that the woman was suicidal, and that the pregnancy would be terminated (although initial reports indicated that the expert panel’s decision was not to terminate, due to the objections of the obstetrician on the panel).

July 28: The woman informed that abortion would be carried out the following Monday, August 5


July 30-August 2:
The woman is informed that termination to be by way of Caesarean:

According to an interview with her in the Irish Times, she was told “The pregnancy was too far. It was going to have to be a Caesarean. In the world, in the United States, anywhere, at this point it has to be a Caesarean.”

In fact this is not correct.

Methods of late term abortion in the United States and elsewhere involve non-Caesarean procedures such as dilation and evacuation and intact dilation and extraction. Both of these procedures, in contrast to Caesarean section, involve the death of the foetus.

It should however be noted that the medical procedure contemplated by Section 9 of the 2009 Act, which the HSE has stated was assented to, also necessarily involves, by definition, the death of the foetus.

The HSE has stated that “it is important to note that a pregnancy can be terminated by way of delivery through Caesarean section.”.

However Section 9 does not permit ‘termination of pregnancy’. What it permits is ‘a medical procedure in the course of which, or as a result of which, an unborn human life is ended’.

A finding that Section 9 was applicable necessarily meant that the woman was entitled not just to a ‘termination’ of pregnancy, but to have that pregnancy terminated in a way involving the death of the foetus. This appears to be something, which has been misunderstood or ignored by the HSE both in the information provided to the woman and in their subsequent statement of this week.

August 5: Following a meeting with an obstetrician, the woman consented to a Caesarean. As stated, irrespective of the fact that the woman was being told that a Caesarean was her only option, it would appear that if a decision had been made under Section 9 she was entitled, by reason of the wording of Section 9, to another method of termination.

Conversely, if a decision had not been so made, she was entitled to be informed of her right of appeal. Neither of these matters appear to have been communicated to her prior to her giving consent to the Caesarean.

August 6: Caesarean carried out.

On the above timetable, the woman should have been over 25 and quite possibly over 26 weeks at the time the procedure was carried out (on the basis that she had been one day over the 24 week limit for obtaining an abortion in England prior to starting her thirst and hunger strike on Friday July 25).

However a report in the Irish Independent describe her as 23-25 weeks at the date of the Caesarean.

August 13: The woman is released from hospital.

August 16 – 21 :  The woman’s story breaks in The Irish Independent. Initial reports indicate that the woman’s application under Section 9 of the 2013 Act was refused.

This is subsequently denied by the HSE who state that the application was successful and that the procedure was carried out by Caesarean. As stated above, this appears to be inconsistent with Section 9 itself.

Anyone?

(IFPA/HSE)

142 thoughts on “This Story Doesn’t Make Sense

  1. Spartacus

    Setting aside the nuances of the legal discussion for a moment…

    Reviewing this article, and all of the comments so far (117 of them), I’ve got a few questions.

    From the article above:

    “The woman informs IFPA that she is not capable of going through with the pregnancy and could die because of it. IFPA informs woman that abortion is available in England up to 24 weeks but that documentation would have to be arranged in order for her to travel for England and that this process would take six weeks.”

    Who said this? The IFPA on their website say the following:

    “The IFPA is unable to comment on the specifics of media reports concerning the case of a young woman who sought an abortion because of the confidentiality of our counselling service.”

    So, who makes the claims above?

    “A subsequent hospital scan finds that the woman is 8 weeks and 4 days pregnant which even allowing for a six week delay in processing travel documentation should permit an abortion in England within the 24 week time limit. Documentation is completed by IFPA and submitted and the woman believes the process is underway.”

    Why was travel to England a consideration? Were the criterai for an abortion in Ireland not met? If so, who made that decision? How do we know this?

    Later:

    “….the IFPA make contact with the HSE nurse who initially referred the woman alerting that nurse to her deteriorating mental health. It is unclear whether or not the question of termination under the 2013 Act was discussed in this phone call. It does not appear to have been discussed with the woman by the IFPA.”

    Who says this? The HSE? Where is their statement?

    “According to an interview with her in the Irish Times, she was told “The pregnancy was too far. It was going to have to be a Caesarean. In the world, in the United States, anywhere, at this point it has to be a Caesarean.”

    In fact this is not correct.”

    Has this claim been substantiated?

    “However Section 9 does not permit ‘termination of pregnancy’. What it permits is ‘a medical procedure in the course of which, or as a result of which, an unborn human life is ended’.

    Then

    “Following a meeting with an obstetrician, the woman consented to a Caesarean. As stated, irrespective of the fact that the woman was being told that a Caesarean was her only option, it would appear that if a decision had been made under Section 9 she was entitled, by reason of the wording of Section 9, to another method of termination.

    So, is a Caesarean a method of termination in this context or not?

    Also how do we know what the woman discussed with this obstetrician? Has a statement been issued? Has a witness to that consultation come forward? Was it her “friend from her home country” who spoke to the Irish Times?

    In the absence of a statement from the woman herself, the IFPA, the HSE, and the Department of Justice, how much of this article above is supported solely by the story published in the Irish Independent?

    1. Bodger

      Spartacus, apologies for the delay.

      “The woman informs IFPA that she is not capable of going through with the pregnancy and could die because of it. IFPA informs woman that abortion is available in England up to 24 weeks but that documentation would have to be arranged in order for her to travel for England and that this process would take six weeks.”

      Source – Interview with woman, Irish Times, 19th August http://www.irishtimes.com/news/health/they-said-they-could-not-do-an-abortion-i-said-you-can-leave-me-now-to-die-i-don-t-want-to-live-in-this-world-anymore-1.1901258
      _______________

      Why was travel to England a consideration? Were the criteria for an abortion in Ireland not met? If so, who made that decision? How do we know this?

      The woman’s account in the article of August 19 above indicates that the IFPA advised only on the possibility of an abortion in England. Why was an abortion in Ireland not considered? Your guess is as good as ours..
      _____________

      Later:

      “….the IFPA make contact with the HSE nurse who initially referred the woman alerting that nurse to her deteriorating mental health. It is unclear whether or not the question of termination under the 2013 Act was discussed in this phone call. It does not appear to have been discussed with the woman by the IFPA.”

      The woman says that termination under the 2013 Act was not discussed by the IFPA.

      The account of the HSE nurse is from this article in the Irish Independent of August 20.http://www.independent.ie/irish-news/news/young-woman-in-abortion-case-got-lost-in-the-system-30521491.html

      The Irish Independent has learned that the Irish Family Planning Association (IFPA), to whom the young girl was referred by a HSE nurse, contacted the nurse last May.

      The phone call alerting that nurse to her deteriorating mental health was placed by the IFPA during the teen’s last counselling session, where she learned that it could cost more than €1,500 to travel overseas for an abortion.

      __________

      “According to an interview with her in the Irish Times, she was told “The pregnancy was too far. It was going to have to be a Caesarean. In the world, in the United States, anywhere, at this point it has to be a Caesarean.”

      In fact this is not correct.”

      Again interview with woman in the Irish Times http://www.irishtimes.com/news/health/they-said-they-could-not-do-an-abortion-i-said-you-can-leave-me-now-to-die-i-don-t-want-to-live-in-this-world-anymore-1.1901258?page=2

      ___________

      “However Section 9 does not permit ‘termination of pregnancy’. What it permits is ‘a medical procedure in the course of which, or as a result of which, an unborn human life is ended’.

      Then

      “Following a meeting with an obstetrician, the woman consented to a Caesarean. As stated, irrespective of the fact that the woman was being told that a Caesarean was her only option, it would appear that if a decision had been made under Section 9 she was entitled, by reason of the wording of Section 9, to another method of termination.

      So, is a Caesarean a method of termination in this context or not?

      The HSE appears to think it is in a statement to the Irish Times in which it is quoted as describing the pregnancy as having been ended under the 2013 Act on grounds of suicidality http://www.irishtimes.com/news/health/they-said-they-could-not-do-an-abortion-i-said-you-can-leave-me-now-to-die-i-don-t-want-to-live-in-this-world-anymore-1.1901258
      “A spokeswoman for the HSE, asked about the allegation that she was not offered a right to appeal the decision to carry out a Caesarean section, said the woman’s request for a termination on the basis of suicidality was acceded to. It is important to note that a pregnancy can be terminated by way of delivery through Caesarean section, as it was in this instance. As they were acceding to her request for a termination of the pregnancy on those grounds, there is no requirement for a review pursuant to section 10.”

      However the termination referenced in Section 9 is termination by death of the foetus. A Caesarean does not satisfy this requirement. As stated, the HSE appears to be mistaken in its interpretation of the Act.

      _______

      Also how do we know what the woman discussed with this obstetrician? Has a statement been issued? Has a witness to that consultation come forward? Was it her “friend from her home country” who spoke to the Irish Times

      It appears that the woman spoke directly to the Irish Times. See article of 19 Augustin which the journalist recounts having met the woman and quotes directly from this meeting. http://www.irishtimes.com/news/health/they-said-they-could-not-do-an-abortion-i-said-you-can-leave-me-now-to-die-i-don-t-want-to-live-in-this-world-anymore-1.1901258

      _________

      In the absence of a statement from the woman herself, the IFPA, the HSE, and the Department of Justice, how much of this article above is supported solely by the story published in the Irish Independent?
      There are direct quotes from the woman herself in the Irish Times article of the 20th August referenced above.

      These and the statement from the HSE cited in the same article article of support the above.

      Details of contact between the IFPA and HSE come from the Irish Independent article of the 20th August also cited above which does not give the source.

      Hope this helps.

      1. Spartacus

        Thank you, Bodger.

        The bottom line seems to be that we are almost entirely reliant (for the moment) on the Kitty Holland article, and the subsequent Irish Independent articles. This makes me uncomfortable about drawing too many conclusions just yet.

        The woman at the centre of this has suffered very badly, and appears to have been treated appallingly; it remains to be seen who dropped the ball, when, and why.

        The eagerness with which the extreme of both “camps” want to seize on the fallout is ugly.

        1. James Egan

          Not exactly.

          The key component of this post as I understand it is that the Caesarean was purportedly carried out pursuant to Section 9 – this appears to be accepted by both the woman concerned and the HSE – see article of 20th February 2014 above. Bodger is saying that this appears to be based on a misunderstanding of the Act and that accordingly the woman was not properly advised as to her rights.

          Leaving aside all the other facts – in relation to which I agree we are reliant on the word of the woman involved, but which do not appear to be disputed by either the IFPA or the HSE – this in itself is post-worthy. Incidentally the HSE/IFPA ‘confidentiality’ point doesn’t appear to hold water – given that the woman herself has spoken about her situation, thus waiving confidentiality.

          Well done Broadsheet on this post.

          1. Spartacus

            The woman has not identified herself in public, so respect for her confidentiality remains. The HSE and the IFPA have not commented other than to effectively say “no comment”, so it is misleading to say that they have not disputed the claims. Everything we have is based on the testimony of the journalists, nothing from any of the parties directly involved.

          2. James Egan

            The HSE has specifically stated to the Irish Times that the caesarean section was carried out under Section 9 of the 2013 Act by reason of suicidality.

            That is sufficient to allow Broadsheet to stand over a post the central premise of which – again correct me if I’m wrong Bodger – is that Section 9 sanctions abortion rather than caesarean, and that an error was made in the HSE’s interpretation of Section 9.

            Irrespective of the other facts, that alone raises serious questions.

          3. Spartacus

            No. Kitty Holland tells us that an un-named HSE spokesperson told her:

            “.(when)..asked about the allegation that she was not offered a right to appeal the decision to carry out a Caesarean section, said the woman’s request for a termination on the basis of suicidality was acceded to.

            “It is important to note that a pregnancy can be terminated by way of delivery through Caesarean section, as it was in this instance.””

            A statement by Kitty Holland (or any other journalist) does not a fact make.

          4. Salmon of Nollaig

            You are incorrect in your statement that the HSE has not made a statement.

            There is a statement here from Tony O’Brien (dealing with the proposed inquiry) in which he says that the woman had her pregnancy ended under the 2013 Act. Although this statement does not specifically reference s9 it must have been section 9 as this was the only section in the 2013 Act applicable.

            http://www.irishtimes.com/news/politics/hse-to-review-care-given-to-woman-in-abortion-case-1.1900411

            So irrespective of whether the woman herself is to be believed it seems to be accepted by the HSE that a s9 order was made.

            James Egan is right!

          5. Spartacus

            Salmon, I realise that you are a pedant by profession, while I am a mere amateur. However (unless I have a blind spot) there are only two quotes directly attributed to Tony O’Brien:

            “that establishes all of the facts surrounding the care given to a woman who had her pregnancy ended pursuant to the Protection of Life During Pregnancy Act 2013.”

            “the full facts surrounding the matter, the sequence of events, the care given to the woman involved, the operation of the 2013 Act and any learnings that can be gleaned from the case,”

            Neither of these sentences appear to lend support to your position. Have you seen a copy of the full statement? I’d have expected to find it on the HSE website, but if it’s there it eludes me.

          6. Salmon of Nollaig

            Au contraire.

            I refer you to what James Egan wrote above, with which I am in agreement:-

            The key component of this post as I understand it is that the Caesarean was purportedly carried out pursuant to Section 9 – this appears to be accepted by both the woman concerned and the HSE – see article of 20th February 2014 above. Bodger is saying that this appears to be based on a misunderstanding of the Act and that accordingly the woman was not properly advised as to her rights.

            Leaving aside all the other facts – in relation to which I agree we are reliant on the word of the woman involved, but which do not appear to be disputed by either the IFPA or the HSE – this in itself is post-worthy. “

            I found the HSE statement – unsurprisingly – on its website here.

            http://www.hse.ie/eng/services/news/protectionoflife.html

            It acknowledges that the woman “had her pregnancy ended pursuant to the Protection of Life during Pregnancy Act 2013”

            The wording is the same as reported in the paper. Obviously the journalists got the facts right here!

          7. Spartacus

            You view this with a legal eye, I see it through the prism of a layman (albeit one who tries to be informed). You are drawing an inference from that statement that I struggle to see.

            Thank you for the link, by the way.

          8. Salmon of Nollaig

            I feel like you that the facts are full of gaps and mostly substantiated only by the woman’s account.

            However there appear to be three indisputables
            (i) the law is as set out in the 2013 Act, which provides for abortion (not caesarean) as shown by the words – “a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended ” which is the procedure to be certified under the Act
            (ii) a certification under s9 took place – verified by HSE statement above – pregnancy ended pursuant to the 2013 Act
            (iii) as a result of the certification a caesarean was carried out – the HSE has not specifically said that the procedure was a caesarean but this seems undisputed – if any other termination procedure had been carried out the baby would not be alive and the baby is very much alive.

            (iii) is inconsistent with (i) and (ii). Irrespective of whether all the facts are known, enough are known to know that the law has been misapplied. I agree with James that that’s the point of the Broadsheet post (as well as setting out all the facts that are being alleged at present). It’s an important one.

          9. Spartacus

            Thank you, Salmon. I’ve been reflecting on this today, and have gone back and re-read this thread (and the various arguments), as well as the various media pages for the umpteenth time.

          10. Spartacus

            Hadn’t finished typing there…

            I believe that I now understand your argument (and James’ original point above) and I concede to your analysis.

            However I have to say that I find the wording of section 9 ambiguous. It may convey obvious meaning to the experienced legal mind, but I can’t help feeling that it could have been worded in far clearer terms. It will be interesting to see if the HSE ultimately argue that a Caesarian was a valid procedure under s9. I genuinely hope that they would fail in any action to defend such an argument as it would otherwise undermine the effectiveness of the legislation, or so it seems to me. Your thoughts on that?

  2. radsroc

    Seems pretty clear to me that there are two extraordinary failures in the care of this unfortunate woman:
    1. a major failure in adequate communication between the IFPA and this woman. The critical period for her was betwwen April and June when she could have met with the three person team or traveled to England with funding from somewhere. Someone should have been able to advocate for her, and should not have dropped this ball.
    2. Performance of an elective C section at 26 weeks would be a very unusual way of terminating a pregnancy in other countries, and exposes the foetus (if it survives long-term) to huge risk. Really extraordinary medical decision

    1. James Egan

      Yes.

      I cannot understand how the woman could fall out of the system, effectively, between May and July. She was after all a refugee and therefore her whereabouts would have been ascertainable. She should have been told in May, at the very earliest, of her right to abortion on the basis of suicidality and the process should have been set in train. Then there’s the question of whether or not she could or should have been informed of charitable abortion assistance for women travelling to UK.

      In addition the whole s9 procedure in July does not appear to have been handled properly. There was no authority under s9 to agree to a caesarean.

      One other issue concerns me, and that is the no. of weeks the woman was pregnant when she was admitted to hospital in July. It has been stated that she was 25 weeks when the caesarean was performed. The above account indicates she was in hospital for over 10 days between being told too late to go to England and caesarean. England is 24 weeks. Could she have been got there in time in July.

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