…Marks the Spot: A response to the death of Savita Halappanavar It is a point of sadness and regret that in the twenty-first century, a calamity such as the one that befell Galway University Hospital on Tuesday, 28th October, 2012 took place. The preventable death of an otherwise healthy 31-year old woman is something no family member should have to endure, not to mention a lengthy and much-publicised inquest into the events which transpired leading up to the abovementioned date. A cause of further indignation is the fact that in a fashion which one can only describe as typically Irish, we, the people, are seeking solace in an area which is not to blame. It is the author’s opinion that the law does not require any amendment, as to make such changes in a time of much distress would open the door to an unprecedented problem, through a means which would have done little to help Ms Halappanavar. In Attorney General v X, a case in which a teenager was suicidal owing to the fact she was pregnant as a result of being a victim of rape, it was held by the Supreme Court that the performance of an abortion is not illegal in Ireland where “there is a real and substantial risk to the life… of the mother”. Since that judgment was handed down on 5th March, 1992, there has been public tension which has its origins in a desire to have this judicial position legislated for. At the risk of being overly technical on the matter, there is simply no need for this. Case-law, of which X is an example, is just as binding in the legal sphere as legislative provisions. One could argue that those is the medical profession might not have Hogan and Whyte’s „JM Kelly: The Irish Constitution‟ or Charleton and McDermott’s „Criminal Law‟ on their shelves next to literature on anatomy, in order to be aware of the case-law which is relevant to this apparent lacuna. It is the author’s opinion that this carries little weight, as the importance attached to X shows that medical professionals were aware of the legal position surrounding the termination of pregnancies. The “legislate for X” outcry is wholly irrelevant to the problem with which we are faced. As abovementioned, there must be a real and substantial risk to the life of the mother before the criminal liability surrounding abortions can be relaxed. The author asks what giving the decision in X a statutory footing will actually do to mend this sorrowful situation? Ascertaining whether or not there is a risk to the life of the mother, stemming from her being pregnant is a task which must be performed by those in the medical profession. The skillset of a lawyer (or moreover, those drafting legislation) does not extend to drafting specific, medically-technical guidelines to account for all situations in which there may be a risk to a mother’s life which will subside upon termination of the pregnancy. Apologies are extended if the following appears insensitive, unsympathetic or perhaps even defamatory in parts, but it is the author’s view that the solution to this regretful problem lies within the medical profession and the associate body thereof. The law is already in place to protect the life of the mother where there is a risk thereto. The presence of such a risk must be realised by the medical professional dealing with each specific case. It is not contended that medical professionals don’t make mistakes, but owing to the nature of their work, namely the dealing with people and the protection of the lives of the aforementioned group, medical professionals spend upwards of 6 years in medical school, and a similar amount on
placement. This is to ensure they have the requisite training and experience to deal with extreme and unprecedented cases. Perhaps there is a failing somewhere along this line which has caused the medical professionals to be less than capable of making these crucial judgment calls. There is opinion in the public that the solution to the problem lies in legalising abortion in all cases, even where there is no risk to the life of the mother. This would be an outrageous and unnecessary step for the legislature to take. Instead of leaving the situation in the hands of the medical professionals, whom we literally trust with our lives, the judgment call will be delegated to a mother-to-be, in acute pain or perhaps even the throngs of labour, or regrettably those who no longer wish to be pregnant. This would be akin to attempting to solve a problem by introducing another problem, one with a greater deal of further problems attached thereto. It is unacceptable and unforgiveable what happened to Ms Halappanavar, but in order to prevent further synonymous instances, something must be done to mend a wound inherent in the medical profession; we must not apply a band aid to the unwounded skin of the legal stance on the issue.