Abortion and Symphysiotomy in Ireland

In this month's blog post Dr Lynsey Black, Lecturer in Criminology, Department of Law, Maynooth University, considers the legal and historical context of abortion and symphysiotomy in Ireland.

Law and Gender in Modern Ireland

Lynsey Black and Peter Dunne (eds.),
Law and Gender in Modern Ireland: Critique
 and Reform (Hart Publishing, 2019

We are currently in the midst of a ‘Decade of Centenaries’ in Ireland. For anyone working broadly in the field of gender, it is also clear that we have lived through a decade of reckoning. As editors of the recently published Law and Gender inModern Ireland: Critique and Reform (Hart, 2019), one of the key challenges has been to present the current legal regime in its historical context. As the book started to take shape, it became clear that the intersection of medicine, gender and the law was an essential part of this story. Within the collection, chapters by James Gallen (Dublin City University) and Máiréad Enright (University of Birmingham), which deal with symphysiotomy and abortion respectively, have provided insight into the role that gender ideologies played in medical practice in post-independence Ireland. Their chapters outline the prevailing historical context in which these medical procedures became emblematic of Catholic conservative Ireland, and the contemporary redress and reform which have attempted to resolve these wrongs.

Catholic society

The march of the Archbishops - Bishops etc.,
outside Pro Cathedral, Congress 1932, Dublin City.
Eason Collection, National Library of Ireland.

Law and policy on abortion and symphysiotomy took shape in the decades after independence, years in which the Catholic Church emerged as an imposing character. In this era of nation-building, Catholic social teaching informed the views of many in government, while members of the Catholic hierarchy offered policy contributions on matters integral to the creation of a Catholic society. Such input disproportionately affected the lives of women and girls, as morality, sexuality, and maternity became focal points for concern. These concerns were fundamental to the histories of both abortion and symphysiotomy. Measures enacted conspired to circumscribe women’s role to a narrow template of womanhood that revolved around the idea of woman as ‘child-bearer’.

Symphysiotomy

As Gallen notes, crucial to the project of nation-building was the valorisation of the family based on marriage, and the corresponding demonisation of women who became pregnant outside marriage. Gallen’s exposition of gendered historical abuse underlines the primacy of marital fertility in this abuse. Such ideologies had tangible consequences, in the preference for symphysiotomy over Caesarean sections to preserve female fertility. Symphysiotomy was often preferred as an alternative to Caesarean sections, considered a risk to potential future pregnancies. Symphysiotomy was a surgical procedure, requiring the partial cutting of fibres joining the pubic bone to the pelvis. Gallen outlines figures from the 2012 State-commissioned Walsh Report, which estimated that 1,500 women had undergone the procedure unknowingly from the 1940s to the 1960s. Its revived use in these decades ‘arose from a confluence of legal and religious gendered restrictions on women’s bodily autonomy’ (page 265). The procedure itself exposed women to the risk of health problems, and in many cases was carried out where it was entirely unnecessary, and against the standards of best practice.

Abortion

The primacy of fertility further influenced the intersection between medicine and the law with regard to the status of abortion, culminating in the insertion into the Constitution of Article 40.3.3in 1983, which created a near-total prohibition on abortion. Through the decades of Ireland’s independence, the legal position on abortion had created the context of unwanted pregnancy and forced birth. As with symphysiotomy, the case of abortion is illustrative of a wider historical failure in Irish law and society to prioritise women’s agency. As Gallen writes in relation to consent for medical procedures, there have often been priorities more highly valued by the Irish state than women’s consent and agency, namely, the preservation of women as child-bearers. Similarly, Enright notes that the Catholic template of motherhood had been one of self-sacrifice, and for decades ‘Irish abortion law has emphasised the protection of prenatal life in ways which efface women’s personhood’ (Enright, page 58).

Historical abuse

Gallen and Enright also elucidate the painstaking efforts to have historical abuse acknowledged and redressed, and to ameliorate and transform the ongoing harm caused by Ireland’s restrictive laws on abortion.

Survivors of symphsiotomy

In the case of symphysiotomy, on foot of the 2012 Walsh Report, in 2014 the Surgical Symphysiotomy Ex Gratia PaymentScheme was established, administered by Judge Maureen Harding Clark. Gallen highlights the efforts of the various groups that brought historical gendered abuse into the political foreground. Organisations such as Survivors of Symphysiotomy compiled victim-survivor testimony, often carrying out their own research where no such efforts were forthcoming from successive Irish governments.

Repeal of the 8th Amendment

A mural outside the Bernard Shaw pub in Portobello Dublin
depicting Savita Halappanavar and calling for a yes vote
in Ireland's referendum to remove the 8th Amendment.
Photo by Zcbeaton, Creative Commons Licence.

Enright too overviews the legal twists and turns which, in May 2018, finally led to the removal of Article 40.3.3 from the Constitution, replaced with the 36^th Amendment. The 36^th Amendment removes the constitutional ban on abortion and replaces it with a statement of the government’s capacity to pass legislation on abortion. As Enright notes, the legislation proposed in the wake of the May referendum has caused a dramatic change to constitutional law on pregnancy in Ireland. Like the recognition grudgingly given to victim-survivors of symphysiotomy, Enright discusses the necessary and transformative effect of activism in the reform of abortion law, overviewing the grass-roots campaign to remove the 8^th Amendment. Crucially, State recognition builds slowly from public awareness, and public disquiet.

Continuing concerns

As the authors note, gains made in this area are hard-won, and achieved against official obfuscation and denials of harm or responsibility. Crucially, any gains achieved cannot be taken-for-granted. In his chapter, Gallen emphasises how the State was, and remains, resistant to many of the arguments made by victim-survivors. Gallen outlines how the redress schemes falls short of international best practice in many regards, and is highly critical of the judgemental tone of many of its reports. Similarly, as the debate on the Regulation of Termination of Bill makes its way through the Oireachtas, the danger that the hopes of real reform could be stifled are very evident. Crucially, the intersections between legal and medical regimes remain a point of vulnerability felt particularly by women. Indeed, as recent developments regarding CervicalCheck have shown, the dangers of gendered medical mistreatment continue to be a real concern in Ireland. Although Law and Gender in Modern Ireland outlines many of the positive reforms in recent years, it does so with a note of caution.

Lynsey Black

Dr Lynsey Black

Dr Lynsey Black is a Lecturer in Criminology, Department of Law, Maynooth University. Lynsey researches in the areas of gender and punishment, the death penalty, and historical criminology. She completed her PhD in the School of Law at Trinity College Dublin in 2016. Her doctoral work examined the cases of women sentenced to death in independent Ireland. From 2016 to 2018, Lynsey was an Irish Research Council Government of Ireland Postdoctoral Fellow at the Sutherland School of Law, University College Dublin.

Her IRC-funded project took a comparative approach to capital punishment in Ireland and Scotland from 1864 to 1914. Recent collaborations include a public engagement and knowledge exchange project undertaken with Dr Lizzie Seal (University of Sussex) and Dr Florence Seemungal (University of the West Indies/University of Oxford) along with the United Nations Development Programme in Barbados. This ongoing collaboration is focused on reform of the death penalty regimes in Barbados, and Trinidad and Tobago.

Lynsey has published recently in Law and History Review and the Social History of Medicine, and is editor of the collection, Law and Gender in Modern Ireland: Critique and Reform (Hart Publishing, 2019).