Ireland: You Can Force Women to Be Mothers, But You Can’t Force Men to Be Fathers

Jodi Jacobson

A case in Ireland underscores the ways in which law and policy are used to manipulate women's reproductive and sexual rights, and the "personhood" status of embryos.

A regular commentor at Rewire, who goes by the handle of Princess Rot, recently wrote in response to an article we published:

I have found that there is a strong prediliction [in the anti-choice community]…to believe in what Amanda Marcotte who blogs here calls “sperm magic” – basically, the belief that shoring up male pride in virility trumps the bodily autonomy of women. Entitling the fetus to special rights is a by-proxy way of ensuring females and their reproduction remains under patriarchal control.

Her statement–and the contention that controversies about abortion, contraception, motherhood and social roles are about a broader power struggle around women’s roles–is regularly contested on our site. 

Yet in re-reading through some recent reports, I came across an article about the decision in December by the Irish Supreme Court that denied a woman access to her frozen embryos because her ex-partner objected and did not want embryos fertilized with his sperm to be implanted and brought to term.

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According to the article:

Despite the Irish constitutional guarantee for the right to life “from conception,” the Supreme Court ruled that the three embryos cannot be implanted against the wishes of the woman’s estranged husband. Mary and Thomas Roche underwent IVF treatment in 2001.

Let me say at the outset that I am not in favor of forcing anyone to become a parent, and I am in favor of every person having full access to the information and services they need to exercise their reproductive and sexual rights (including not to reproduce or have sex), and to ensure their own sexual and reproductive health.  I also do not believe in the “personhood” of embryos.

But the decision by the Irish Supreme Court underscores the hypocrisy that underlies not only the “pro-life” position when it comes to women versus men–in Ireland, the US and elsewhere–it also underscores the hypocrisy of the wider ranging public conversations about abortion and contraception in which we are now engaged.

In Ireland, according to the Human Rights Watch report A State of Isolation: Access to Abortion for Women in Ireland “abortion is legally restricted in almost all circumstances, with potential penalties of penal servitude for life for both patients and service providers, except where the pregnant woman’s life is in danger.”

There is, however, according to HRW:

Little legal and policy guidance on when, specifically, an abortion might be legally performed within Ireland. As a result, some doctors are reluctant even to provide pre-natal screening for severe fetal abnormalities, and very few – if any – women have access to legal abortions at home. The government has indicated that it has no current plans to clarify the possible reach of the criminal penalties.  The government does not keep figures on legal and illegal abortions carried out in Ireland, or on the number of women traveling abroad for services.

So women are left hanging as to what exactly their rights are in what circumstances and under what potential “penalities” and doctors are effectively prohibited by the same lack of clarity from providing women a full range of services and information pertaining to pregnancy.

And as a result of lack of access to abortion care at home, every year thousands of women and girls travel from Ireland to other European countries for abortions. In a  57-page report entitled “A State of Isolation: Access to Abortion for Women in Ireland,” HRW details how women “struggle to overcome the financial, logistical, physical, and emotional burdens imposed by restrictive laws and policies that force them to seek care abroad, without support from the state.” 

Ironically, the severe curtailment of women’s rights coexists with “ambiguity” about the status of the embryo.

In short, according to the Irish Supreme Court, an embryo is apparently an “unborn person” when it is inside the womb of a woman–and is then equal to and can compromise her own health–but it is not an “unborn person” when a man does not want it to be.

The five judges ruled that the human embryo does not enjoy protection under Article 40.3.3 of the Constitution that says, “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother.” An embryo frozen in storage does not constitute “the unborn,” the ruling said.

Hmmmm….

This is confusing!  And indeed both lawyers and doctors also find it confusing.

In an article for Irish Medical News, Solicitors Tom Hayes and Hilary Coveney outline Ireland’s current legal position on fertility treatment and the status of the embryo.

Medical and scientific advances have generated a “reproductive revolution” through new or assisted reproductive technologies. These technologies include artificial insemination, in vitro fertilisation (IVF), surrogacy and use of sperm, egg and embryo donation. They have been available in Ireland since the 1980s with the first Irish “test tube” baby having been born in 1987.

Multiple embryos are often created in the course of IVF treatment to avoid women undergoing further courses of treatment where possible. Surplus embryos can then be stored or frozen for a period of time to be used at a later date. However, the status of these embryos and how they are to be used and protected raise many important questions.

Yet “unlike many other jurisdictions,” they write, “there is currently no statutory or legislative guidance in relation to the practice of IVF or the status of the embryo in Ireland.”

Embryo = person once inside a woman.  Embryo = not-a-person when a man decides he does not want it to be.

To be fair, while pro-life groups in Ireland apparently disagreed with the ruling, they did so on the grounds that they prefer invitro-fertilization be entirely banned, thereby of course strengthening the control of patriarchal institutions over the unborn and ensuring patrimony, while of course ensuring that no single women or gay couples can bear children using new technologies. 

“Although it would be unethical for embryos outside the body to be implanted, it is permission for IVF, and not the Roches’ estrangement, which has created this tragedy in which their children will never be born. Any legislation, therefore, which may be passed following this case should ban IVF,” said Pat Buckley, spokesperson for the Society of the Unborn in Ireland.

It’s never unethical to control a woman, though.

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