Symphysiotomy, ‘Bad Faith’ and ‘Past Standards’

In LF v Ireland, the ECtHR holds that the Irish experience of symphysiotomy is not the kind of historical injustice that requires an ‘independent and thorough investigation’. An investigation is not required simply because a past harmful medical practice affected many people. There must be evidence of some ‘bad faith’ on the part of the doctors involved, and state responsibility must be assessed in light of the standards prevailing at the time the injury occurred.

Bad faith

Previously, the Court has used ‘bad faith’ to mean ‘with intent to harm’. The state maintains that doctors sometimes substituted symphysiotomy for C-section in good faith, to protect Irish Catholic women from risks associated with having several C-sections in quick succession. Elsewhere, a doctor might have assisted his patient to access contraception. In Ireland, this was largely forbidden by both Church and law, with no health exceptions. Within that structure, medical experimentation with symphysiotomy can be construed as an attempt to preserve women from risks to life and health, rather than an attempt to harm them.

The Court’s brief reference to ‘bad faith’ does not address the myriad ways in which the medical profession engaged with symphysiotomy. Archival research shows that those doctors who led in this use of symphysiotomy in the 1940s and 1950s were conservative Catholics, and resisted liberalisation of laws around contraception in Ireland and elsewhere. Their main critics were not Irish and little has been said about how other Irish doctors perceived or interacted with them. Some of them were heads of major maternity hospitals and held positions of authority. By the late 1960s a younger generation of obstetricians had largely broken with their practice. The Court, following the state’s lead, frames this change in terms of scientific development rather than change in religious attitudes. Dissent from conservative Catholic approaches to obstetric medicine and indeed efforts to lobby for better law, are absent from this legal history of symphysiotomy. So too is any detailed account of the tolerance - read as tacit approval - that lends respectability to harmful practices.

‘Bad faith’ cannot hope to capture the complex agency of medical professionals under religious patriarchy. The medical professions appear repeatedly in investigations into historical abuse. While there is evidence that some doctors and nurses aimed to resist, or at least humanise, this system, others were involved in illegal adoption, illegal vaccine trials, obstetric violence, and in the use of institutionalised children’s remains in medical schools. ‘Bad faith’ encourages attention to individual bad behaviour rather than to collective norms. The Court’s account of collective norms, however, is little better - these appear only as a thin idea of ‘past standards’.

Past standards

When the Court analyses collective professional responses to abuse, it talks about ‘the standards of the time’. Here, it cites its decision in O’Keeffe v Ireland without much elaboration. There is nothing novel in observing that we cannot ‘discover’ the standards of the past without imposing something of the present. At least two problems arise here.

First, symphysiotomy cases were framed as medical negligence cases in the Irish courts. Thus, the key issue was whether the decision to perform an individual symphysiotomy was supported by a respectable, if minority, medical ‘school of thought’. In LF those schools of thought do double duty; substituting in full for ‘the standards of the time’. This substitution ignores other standards which were also of that time. These include Irish Catholic women’s well-documented efforts to control their fertility in the 1960s, by using ‘natural’ methods, illegally importing contraceptives, and accessing ‘the pill’ from supportive doctors for ‘non-contraceptive purposes’. As in A, B and C v Ireland, the Court privileges the understanding circulated in elite spaces over ordinary women’s knowledge. Crucially, the Court does not consider the gaps in elite medical knowledge concerning symphysiotomy’s harms. It does not consider whether limitations in follow-up studies on symphysiotomy concealed women’s suffering. Affected women certainly knew that they had been harmed, and shared that knowledge with friends, family and supportive family doctors, albeit many understood that long term disability after childbirth was simply their burden to bear. It seems that because that knowledge did not carry scientific weight then, it cannot carry legal weight now.

Second, the state’s account of ‘past standards’ is shaped by contemporary policy concerns. This is visible, for example, in its emphasis on past compliance with the law. Domestic symphysiotomy litigation unfolded alongside public discussion of the constraints imposed on obstetricians by the then abortion law. Leading obstetricians insisted that the law tightly controlled what they could do to preserve women’s health - that it imposed a ‘chilling effect’ on their professional agency. Evidence of their predecessors’ obstetric innovations was, arguably, interpreted to fit a similar mould. This resonance may not have arisen by design. In other areas, however, the state’s account of ‘past standards’ is more aggressively shaped by the context of its production. The state has invested extraordinary energy in producing these accounts of ‘past standards’ and bringing them into the public domain. The Court enumerates the findings of three state reports, and several judgments arising from cases in which the state (via the Health Services Executive) acted as defendant. It notes criticisms of these processes and their treatment of survivors, including by international human rights bodies, but it declines to engage with them.

Conclusion

The Court’s jurisprudence on both reproductive rights and historical injustice is relatively weak, and perhaps we should not be surprised by its lacklustre engagement with these issues. Nevertheless, its determined refusal to engage with the structural dimensions of reproductive injustice is troubling. It is not an enthusiastic endorsement of state accounts of past reproductive injustice. At the same time, it does nothing to improve understanding of the power relations that have enabled obstetric violence in the past, and may yet do so today.

Máiréad Enright, Reader in Feminist Studies, Birmingham Law School, University of Birmingham

Series Editors: Zoe Tongue, Aoife Finnerty, and Camilla Pickles