Antenatal coercion

The Irish courts had some rare excitement on 19 July 2002, when a woman ‘agreed’ to a hospital birth (1). The case got publicity because it involved an HIV-positive woman; and, by a stroke of luck, a journalist was in court.

The outcome of the case was that this woman had to give birth in the Coombe in Dublin: one of Ireland’s largest maternity hospitals. The president of the Irish High Court, Mr Justice Finnegan, heard the case. The woman was very anxious to have her privacy protected, so she was not named, and few details emerged during the hearing.

However, it is disturbing that this case happened at all. The defendant was a French-speaking black woman, heavily pregnant, whose baby was due the following week. She had been shocked and angry to discover her HIV status, following a test in March 2002. Possibly she was from sub-Saharan Africa, where heterosexual HIV and AIDS are rife, and where the diagnosis of such conditions carries great social stigma. This woman may have been afraid of being rejected by her partner or her family.

The woman’s response to her diagnosis was therefore understandable. She appeared to go into denial, refusing treatment for herself, even though anti-retroviral drugs are available to pregnant women. She attended a support clinic for people suffering from HIV between March and June, but steadfastly maintained her position, insisting that God would provide. She also indicated that if the baby was sick after delivery, the doctors could take it away.

The woman’s refusal of treatment may seem irrational – but who can say what her experiences of life were, or doubt the sincerity of her beliefs?

There are divergences of view about whether the orthodox approach to HIV/AIDS is necessary or desirable. The president of South Africa is a well-known sceptic of conventional wisdom regarding HIV/AIDS, and his administration has resisted making treatment for HIV available for women in her position. The safety of anti-retroviral drugs in human pregnancy has not been determined (2). It is not therefore surprising that some people may have strong views about the benefits of taking such drugs, or giving them to newborns (3).

At any rate, this woman had made her position clear for months, before the South West Area Health Board took her to court on 19 July.

What was the action about? According to press reports, the Board wanted to make the baby a ward of court when it was born (4). Apparently, the Coombe also wanted to give the baby treatment for HIV, and to administer such tests and other treatment as seemed appropriate. These orders could not be effective, however, unless the woman agreed to attend the Coombe.

It seems that the Board was also seeking some kind of coercive order, to compel her to attend the Coombe for her delivery. Caesarean delivery is thought to reduce the chances of maternal-fetal transmission of HIV during birth. What is not clear is whether the Coombe also wanted the woman to submit to surgery, or what her views on surgery were.

But why should this Health Board start a legal action, with serious implications for personal autonomy, when this woman was in an advanced state of pregnancy? Not only would litigation subject her to emotional and physical stress, but it was also bound to damage her confidence in those caring for her. Resorting to law in such circumstances would strike many as unnecessarily draconian, even lacking in humanity.

During this unprecedented application, the woman indicated that she did not want to go into the Coombe, because she did not trust the doctors and had concerns about the hospital. The judge was reported as saying that his grandchild had been born in the Coombe recently, and he had no complaints. He was also reported to have said that, unless this woman went along with the Board’s proposal that she attend hospital for the birth, he would have to make much more serious orders affecting her personal bodily integrity. Faced with such paternalism, the woman (who was not legally represented) clearly felt that she had to meet the authorities half way.

The woman may not have understood that there are powerful arguments against the making of coercive orders affecting her personal liberty and bodily integrity. Section 4 of the Health Act 1953 (Ireland) provides:

‘(1) Nothing in this Act…shall be construed as imposing an obligation on any person to avail himself of any service provided under this Act or to submit himself or any person for whom he is responsible to health examination or treatment.’

(2) Any person who avails himself of any service provided under this Act shall not be under any obligation to submit himself or any person for whom he is responsible to a health examination or treatment which is contrary to the teaching of his religion’.

So the idea that a pregnant woman could be forcibly detained, because the authorities want to make her baby a ward of court when it is born, is outlandish and Orwellian. In fact, the Irish Supreme Court has said that adults are free to refuse medical advice and treatment: by implication, they must be free to refuse to go to hospital (5).

The supreme court has also ruled that parents can refuse a PKU-test (which screens for certain medical conditions) for their child. Mr Justice Hardiman said in that case in 2001: ‘[I]t is better to hesitate at the threshold of compulsion, even in its most benevolent form, than to adopt an easy but reductionist utilitarianism whose consequences may be unpredictable. Ample scope must be given to the fundamental values of human dignity, as well as those of positive logic…. I do not view a conscientious disagreement with the public health authorities as constituting either a failure in [parental] duty or an exceptional case justifying State intervention.’ (6)

We do not know whether these important points were aired in court.

The press reported that the woman gave the judge an undertaking to have the baby in hospital. An undertaking is a formal promise to the court. If it is subsequently dishonoured, it can result in proceedings for contempt of court, and a possible jail sentence. An undertaking therefore has the same legal effect as a court order by a judge.

Given the serious consequences of breaching an undertaking, a formal court order is usually drawn up, which recites the undertaking. However, if a defendant offers an undertaking, the judge does not have to issue a reasoned decision on the merits of the legal dispute before him.

Exceptionally, a statement was issued by the Irish Courts Service on 20 July. It said:
‘The court made no order in relation to the woman or her medical treatment…. The court did order that the child be made a ward of court upon its birth. The court further ordered that the child was to receive a specific medical treatment as soon as it is born. To facilitate this the woman agreed to attend hospital for the delivery of the child.’

But it is difficult to see the woman’s ‘agreement’ as entirely voluntary; it looks more like submission. Her state of mind, in such an emotionally charged situation, without any legal assistance, can only be guessed at. But the Board can be criticised for rail-roading her into court.

Legal action at this stage was unnecessary. There was no emergency. The woman’s position had been known about for some months. Even if the baby were found to be HIV-positive after birth, HIV infection hardly poses an immediate threat to life. If the Board anticipated that the woman would refuse consent to testing or treatment for the baby after birth, the Board could have applied for an order making the child a ward of court after it was born.

Coercing this woman in advance of the birth was hardly conducive to a constructive working relationship between her and the authorities concerning her child’s future, once it was born. And if she and the doctors disagreed over the management of her pregnancy, she could have been offered the option of alternative care elsewhere.

Did the Board see this action as a potential precedent for coercing other non-compliant pregnant women in future? If so, it has been disappointed: there has been no court ruling, and no legal precedent has been established. But this case leaves an unpleasant taste in the mouth. It shows that highly vulnerable individuals may be exposed to exceptionally heavy-handed action by the Irish authorities.

This approach may backfire. It might put some pregnant women off HIV-testing; and it might even put some women off maternity care altogether. Both outcomes would be ‘own goals’ in public health terms. Possibly this case was inspired by official panic in certain quarters. If so, officials and their advisers would do well to remember that initiating draconian proceedings against pregnant women may end up doing more harm than good.

Barbara Hewson is a barrister at Hardwicke Civil

(1) Statement by the Irish Courts Service, 20 July 2002

(2) ‘Pregnancy and HIV Infection: a European Consensus on management’, AIDS Vol 16 Supplement, 2 June 2002, p9

(3) See Re C [1999] Fam 289, where a London couple unsuccessfully opposed HIV-testing of their baby

(4) See ‘Order on HIV mother to affect religious groups’, Padraig O’Morain, Irish Times, July 20 2002; and ‘HIV mother to be treated to reduce risk to baby’, Mary Carolan, Irish Times, July 20 2002

(5) In the Matter of a Ward of Court (Withholding Medical Treatment)
No 2 [1996] 2 IR 79; and North Western Health Board v W(H) [2001] 3 IR 622

(6) North Western Health Board v W(H) [2001] 3 IR 622 at 747, 757

© Barbara Hewson 2002