The 8th Amendment affects women’s right to refuse consent to treatment in pregnancy. It may also restrict the kinds of treatment, including abortion, that doctors can offer to their pregnant patients.
The text of the 8th Amendment refers to the ‘life’ of the ‘unborn’ in general, rather than to abortion in particular, so that the whole duration of pregnancy, including labour and birth, comes within its scope. The 8th Amendment has several important effects on pregnant women who plan to continue their pregnancies.
Ordinarily, adults have the right to refuse consent to any medical intervention for any reason, unless their decision-making capacity is in question. However, a pregnant person whose decision-making capacity is intact may be subjected to unwanted medical treatment in Ireland. The Health Service Executive’s (HSE) National Consent Policy states that under the 8th Amendment:
the consent of a pregnant woman is required for all health and social care interventions…However … there is significant legal uncertainty regarding the pregnant woman’s right to refuse treatment in circumstances in which the refusal would place the life of a viable foetus at serious risk. In such circumstances, legal advice should be sought as to whether an application to the High Court is necessary… (p.41)
The courts may make orders compelling a pregnant woman to accept unwanted medical treatment. Orders of this kind will not be made where the treatment is futile, or otherwise not in the foetus’ best interests (as in PP v. HSE), or where the risk to the foetus is very low and the treatment is highly invasive. In HSE v. B, the High Court refused to order that a pregnant woman should have a C-section against her wishes. However, the law is not entirely clear. In cases where the risk to the foetus is higher, it is likely that the woman’s refusal will be overridden, especially if the procedure recommended by the woman’s medical team is less invasive.
The Amendment may also affect the treatment which can be offered to a woman if she becomes ill in pregnancy. Treatment for a serious illness may be delayed or denied during the pregnancy if it would place the foetus’ life at risk. Finally, of course, the Amendment prevents a woman from terminating a wanted pregnancy where serious illness makes it too risky for her to continue. Her doctors cannot intervene until her life is at ‘real and substantial’ risk and that risk can only be avoided by ending the pregnancy. This is the case even if her health is degrading in the meantime. The Amendment may also affect access to healthcare information for women whose pregnancy places their health at risk. For example in A, B and C v. Ireland, C said that she was unable to access information about cancer treatment and how it might affect her foetus because of the ‘chilling effects of the 8th Amendment’; her doctors were reluctant to engage with her in case it might be necessary to terminate the pregnancy.
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