Women’s Rights and Male Parasites: When Paternity Leave Becomes a Women’s Issue

Kyle L Murray

Teaching Fellow in Public Law and Human Rights, Durham Law School.

Comments welcome via Twitter: @KyleLMurray92 or email: k.l.murray@durham.ac.uk

The recent Women & Equalities Committee report on paternity leave, while making welcome proposals, is revealing of a fundamental problem with the way we frame issues of gender (in)equality negatively affecting men. In this post, Kyle talks about the importance of framing the dealing with men’s issues not just as parasitic upon women’s rights, but as valuable pursuits in themselves.  

“We should take measures to break the glass ceiling and improve the representation of women in top positions in the workplace – this would relieve the considerable pressures on men, who we know suffer breakdowns and depression from their workload, with sometimes disastrous consequences”.

If this headline sounds as though it misses the point and belittles the harms done to women from the inequality it seeks to challenge, it is because it does. If it sounds as though it risks leaving the attitudes leading to these inequalities unchallenged – and therefore recommends strategies likely to be of limited effectiveness – again, it is argued, that is because it does. If readers are viewing it with a sense of disbelief, it is because it is fictitious. But its problematic framing of the issue of gender inequality is, I argue, not too far from what we have recently seen in discussions surrounding paternity leave and the difficulties faced by fathers. The recently-released Women & Equalities Committee (WEC) report – ‘Fathers in the Workplace’  (20 March 2018) – and its presentation in the media, is a prime example; framing issues of gender inequality and challenges facing men primarily within the paradigm of advancing women’s equality and rights.

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The High Court of Northern Ireland: Northern Irish Abortion Law Incompatible with the European Convention on Human Rights

Jane Rooney is PhD Candidate in Law at the University of Durham. Her research brings a comparative analysis to the extraterritorial application of human rights by domestic, regional and international adjudicatory bodies, with central focus on the approach taken by the European Court of Human Rights. She tweets @JaneMRooney. This post was originally published at European Futures and is reposted with permission and thanks.

On 30 November 2015 in the case of The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96, the High Court of Northern Ireland found that Northern Irish law regulating abortion was incompatible with Article 8 (right to private life) of the European Convention on Human Rights (ECHR). This was an historical judgement made possible through the conjoined efforts of many, including women directly affected by the legislation, the Northern Ireland Human Rights Commission and Amnesty International.

Judge Horner (Mr Justice Mark Horner) delivered a judgement that engaged with many complex legal, political and social questions which, although not entirely beyond criticism, is to be applauded. He found that the foetus does not have a right to life under Article 2 ECHR; that there is no domestic consensus on issues relating to abortion in Northern Ireland; and that permitting a woman to travel to England to receive an abortion does not mitigate against the harshness of the regulations in place.

The Decision of Judge Horner

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Inherently Brief: Volume 36

Sterilisation of Woman Lacking Mental Capacity

Charlotte Adamson, Durham University

On the 4^th February, the Court of Protection ruled that a mother of six should be sterilised for her own safety. The woman concerned, known as DD, is a 36-year-old woman with Autistic Spectrum disorder and a mild to borderline learning disability, with an IQ of 70. She has a ‘tragic and complex’ obstetric history, and has no continuing contact with any of her children, who are all raised by permanent carers. She is currently in a long-term relationship, which includes a sexual relationship, with a male partner who has a significant learning disability and also displays some traits of an Autistic Spectrum Disorder.

The Court of Protection had previously been required to rule on welfare applications under the Mental Capacity Act 2005 in relation to DD’s capacity to make important decisions regarding her sixth pregnancy and short-term contraception. In this case, they had to consider whether DD had capacity to consider and make decisions concerning long-term contraception and/or therapeutic sterilisation, and if she lacked capacity, to determine what would be in her best interests with regard to these. Mr Justice Cobb came to the conclusion that DD does lack capacity to make these decisions, and that it is in her best interests to be sterilised. While this may be justified in extreme circumstances, Rebecca Schiller, the co-chairwoman of the human rights in childbirth charity Birthrights, has commented that ‘taking away a person’s ability to have a child is truly draconian’, and warned that immense care must be taken to safeguard the rights of people with mental conditions.

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PP v HSE: Practicability, Dignity and the Best Interests of the Unborn Child

Máiréad Enright is a lecturer at Kent Law School and is completing a PhD at University College Cork which examines the legal treatment of questions in Muslim divorce practice in the UK and the United States from the perspective of a multiculturalist feminism. This post is cross-posted from humanrights.ie with permission and thanks.

The High Court handed down judgment in PP v. HSE today.  The Irish Times provides a useful summary here.  P., who was 15 weeks pregnant, died on December 3rd, but her body  was subjected to medical processes to ‘facilitate the continuation of maternal organ supportive measures in an attempt to attain foetal viability’ for several more weeks.  We call the experimental treatment her body received ‘somatic care’. ‘Somatic care’ seems a benign phrase, but it involved a tremendous amount of intervention designed to postpone the inevitable collapse and decay of P.’s other organs following the cessation of blood flow to her brain, thereby sustaining the pregnancy. Medical evidence given in court made clear that the eventual effects of these interventions on her appearance, and the consequent distress to her family, undermined her dignity in death. Nevertheless, doctors in both hospitals where she was treated apparently believed that the law required them to follow this unusual course of action, given that the foetus still had a heartbeat. By the time the case came to court, P.’s body was deteriorating rapidly. There was no real prospect that, even if treatment were continued, the pregnancy could be maintained until viability. Her family and partner wanted the somatic treatment discontinued, and her father applied to the court for this purpose. This morning, the  High Court exercised its inherent jurisdiction and authorised P.’s doctors to discontinue treatment, at their discretion.

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Ireland, Symphysiotomy and the UNHRC

Máiréad Enright is a lecturer at Kent Law School and is completing a PhD at University College Cork which examines the legal treatment of questions in Muslim divorce practice in the UK and the United States from the perspective of a multiculturalist feminism.

 

Power is cautious. It covers itself. It bases itself in another’s pain and prevents all recognition that there is “another” by lopped circles that ensure its own solipsism.’ – Elaine Scarry, The Body in Pain

 Ireland was examined by the UN Human Rights Committee under the ICCPR last week. The state’s response to the Committee’s follow up questions has been published online. These written answers supplement the oral presentations made by the Minister for Justice and civil servants at the hearings in Geneva. This document is useful as a time capsule of the government’s position on redress for institutional abuse of women and children, because it contains several pages of defence of the official position on reparations for survivors of symphysiotomy. Symphysiotomy is a childbirth operation, which involves breaking a woman’s pelvis, usually before or during labour. It was revived in Ireland in the 1940s by a small group of conservative Catholic doctors, working in state-run or state-supervised hospitals, as an alternative to Caesarean section and was performed in hospitals all over Ireland into the 1980s. (If you need a reminder of the violence and abuse which characterised its practice in Ireland, see here.) On July 1, the Government published Judge Yvonne Murphy’s Independent Review of Issues Relating to Symphysiotomy (the Murphy Report) which outlines a possible redress scheme for survivors. The scheme draws on Professor Oonagh Walsh’s final Report on Symphysiotomy in Ireland 1944 -1984 (the Walsh Report) published on the same date. It is important to stress that the fine print of the symphysiotomy redress scheme has not yet been made public. The State’s written response to the Committee, unfortunately, has introduced yet more ambiguity into an already murky public discussion. Hundreds of women who are members of Survivors of Symphysiotomy, disappointed by the government’s approach to redress, have begun High Court litigation against the hospitals which performed their symphysiotomies, and against the State (invoking the law of negligence and the principles established in O’Keeffe v. Ireland at the ECHR).

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Rights versus Remuneration: The English NHS and Abortion Services for Women from Northern Ireland

Dr. Sylvia de Mars, Lecturer in Law at Newcastle Law School, Newcastle University

This post has been cross-posted from Human Rights in Ireland with permission and thanks.

Given that my  research considers the access rights of EU nationals to the English NHS, last week’s England and Wales High Court decision in R (on the application of A & Anor) v Secretary of State for Health didn’t come as much of a surprise, but remains regrettable. There are two dimensions to this case, which dealt with the question of whether or not Northern Ireland residents can obtain abortions with the English NHS free of charge.  The first dimension is a public law one, looking primarily at the organisation and funding of the healthcare services in the United Kingdom, and the second is a human rights one. 

In rejecting the claim, the High Court applied public law as it currently stands in England, and though the judgment does not state this explicitly, one would assume that it has done so not least of all because the issue of access to the English NHS has been an increasingly politically sensitive one in recent years.  What few restrictions exist in English law to entitlement to access the NHS, the English courts have in this case attempted to uphold, and they have done so by emphasising that healthcare is a devolved matter:

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Don’t Call Me “Daddy” – Lesbian Parenthood and Nationality

Dr. Sylvia de Mars, Lecturer in Law at Newcastle Law School, Newcastle University

As of midnight on the 14^th of March 2014, same-sex couples living in the United Kingdom who were married in a foreign jurisdiction where said marriage was recognized are now also recognized as married in the United Kingdom.  This marks a general trend in Western Europe of the increasingly recognised right for same-sex couples to form legal relationships; but, unfortunately, embracing gay marriage is only a starting point for establishing full legal equality for same-sex couples.  Other, related rights frequently lag behind.  What lingers is institutionalised discrimination on the basis of both gender and sexual orientation, largely because the government in question “forgot” to think beyond the first rights granted.  The following contribution discusses a particular area of law where these problems remain in many countries, using the United Kingdom and the Netherlands as examples: namely, pervasively heteronormative and patrilineal structure of nationality laws.

The standard mechanism for the passing of nationality to a child in most countries is via the birth (or biological) mother: the child is born with the nationality of the mother.  Beyond this, additional transmission mechanisms differ per jurisdiction; some countries (such as the United States, and until recently, the Ireland and Belgium) grant nationality to all children born on national soil (as per jus soli), and others (such as the United Kingdom) grant nationality to children because their parents have lived in a given jurisdiction for a significant period of time and are thus ‘settled’ there.

Where both parents are nationals of the country they live in, the nationality of their children is straight-forward.  This will be the situation that an overwhelming majority of childbirths worldwide take place in; however, determination of nationality has always been more complicated, even for heterosexual couples, when the birth mother is not a national of the country that the baby is born in.  In the United Kingdom, for instance, if the (foreign) birth mother and the (British) father are not married, their child does not automatically have British nationality; the father’s paternity needs to be proven (by registering the father on the birth certificate, which the birth mother must agree to do) before nationality can be passed on.  The Netherlands’ current nationality law reflects a similar principle; however, prior to 1985, Dutch nationality was only passed through patrilineal descent—consequently a Dutch mother and a foreign father could not give birth to a Dutch child, even if married before the law.  Nationality law that involves binational couples has thus historically been complicated.  However, the concept of what a “couple” was for the purposes of these laws was a straight-forward issue—mothers and fathers were either married or not—until the legal recognition of gay partnerships became a reality in both the Netherlands and the United Kingdom.

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Inherently Brief: Volume 25 (Part 1)

Snapshots of law, gender and sexuality news from the past couple of weeks.

“He would take every penny” – sexual trafficking in Manchester

Chantelle Porter (University of Manchester)

This month, the Manchester Evening News (MEN) has published a series of exposes on the problem of sex trafficking in the city, which you can read here, here, here and here.

The MEN reports indicate that most women currently being trafficked into Manchester for sex are Slovakian, with most of the rest coming from other nations in Eastern Europe, and a few from Thailand and African countries. The problem seems to relate primarily to South Manchester (especially Longsight and Rusholme, both districts close to the Manchester University campus), and some parts of North Manchester and Bolton.

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Inherently Brief: Volume 21

Volume 21 of Inherently Brief is brought to you by the School of Law, University of Manchester, England, UK.

‘You can’t be pro-choice only when you like the choice’

Hannah Farrington, University of Manchester

British Pregnancy Advisory Service chief executive Ann Furedi has recently spoken out against criticisms levelled at the Crown Prosecution Service after they refused to prosecute doctors who appeared to agree to sex-selective abortions when approached by undercover journalists from the Daily Telegraph. High profile politicians including Health Secretary Jeremy Hunt and Labour’s Shadow Attorney General, Emily Thornberry, have expressed their disapproval of the CPS decision, but Furedi is adamant that there is no need for a change in the law.

In her article for libertarian online magazine Spiked, Furedi writes that sex-selective abortions are in fact legal in certain circumstances. Under the Abortion Act 1967 a doctor is permitted to decide whether or not to proceed with an abortion based on how continuing with a pregnancy will affect the health (including mental health) of the pregnant woman, regardless of any specific reasons she may have. As such, Furedi points out, where such an impact on health is found, abortion on the grounds of the sex of the foetus is no more illegal than abortion on the grounds of rape, or that the pregnant woman is thirteen years old.

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Is Article 8 ECHR the ‘Feminist Article’?

Helen Fenwick is a Professor of Law at Durham Law School. This post is also published at Human Rights in Ireland.

 This post concentrates on Article 8 ECHR to argue that it can be viewed as sympathetic to feminist goals since, due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life, it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg. in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women, and unlike Article 14 (the guarantee of freedom from discrimination), which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights, Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Other ECHR Articles are also relevant. Article 3 would also support recognition of positive obligations, (see McGlynn, Clare (2009) ‘Rape, torture and the European convention on human rights’ ICLQ 58 (3)) including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found, a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands).

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