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Posts Tagged ‘Ireland’

Enright,_MaireadMáiréad 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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ruth1

Ruth Houghton is a Graduate Teaching Assistant and PhD candidate at Durham Law School. She tweets at @ruth_houghton. Ruth is also a commentator on the Northern/Irish Feminist Judgments Project. This post is also posted at Human Rights in Ireland.

The Project

Launched in 2012, the  Northern/Irish Feminist Judgments Project (@irishfjp) is led by Aoife O’Donoghue (Durham Law School), Julie McCandless (LSE Law) and Máiréad Enright (Kent Law School). A feminist judgments project writes the ‘missing feminist judgment’; it takes original decisions and rewrites them from a feminist perspective. Abiding to the strictures of precedent and custom that judges adhere to, the feminist judge shows how the law could have been interpreted or applied differently. This particular project builds on the work of the Canadian, Australian and English feminist judgments projects, and focuses specifically on the creation of identity in Ireland and Northern Ireland. The project will explore both jurisdictions, rewriting cases from both the Irish and Northern Irish courts. The Northern/Irish Feminist Judgments project explores the building of communities and the importance of diaspora for Irish identity as well as creating a space to explore the ways that Northern Irish and Irish identities have ‘affected, and defined themselves in relation to one another over time’. (more…)

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Enright,_Mairead

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.

 

Mairead Enright Post

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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HFsmlHelen 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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Aoifesmall

Aoife O’Donoghue is a lecturer at Durham Law School. This post was originally published at Human Rights in Ireland and is reproduced here with permission and thanks.

In the years preceding independence, the vision of Ireland as a women in need of protection became a standard of nationalism. Genderised Ireland has roots in Róisín Dubh and the Earl of Tyrone’s attempts to stay off the Tudor expansion in Ireland. Directly linking the Earl’s resistance to his daughter’s woes, standing in for a forsaken Ireland, the image of a women as Ireland needing male intervention to fully substantiate both her rights as a sovereign power but also to fully embrace her Irishness, as opposed to any foreign interpretations of femininity, became an entrenched trope of nationalism. This was replicated by Yeats and Gregory in the play Cathleen Ní Houlihan. In this play, Maud Gonne, as elderly mother Ireland, is only revived as young and, importantly, beautiful, upon the sacrifice of young men to regain her freedom to be distinctly Irish. Thus, Ireland becomes a women who, while personifying the very character of Irishness, also requires others, always men, to protect, vindicate and guard her from outside influences and interference. Cullingford has described the depiction of Ireland as a women as neither natural nor archetypal but so common as to be ‘rhetorically invisible.’ Further, she argues that Ireland as women has been so effective  that it is entrenched in the idea of women in stereotypical roles invariably linked to nature that is to be possessed and cultivated to its utmost by men, becoming a settled trope of Irish culture. This has created a state structure and culture in Ireland where men occupy the political role of fighting and vindicating rights on Ireland’s, and as such, women’s behalf.

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Enright,_MaireadMáiréad 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.

A great deal has been written about the recent developments in Irish abortion law. Most readers will know the basics. The Eighth Amendment to the Irish Constitution, as interpreted in a case famously known as X, provides that a pregnancy may only legally be terminated in Ireland if: (i) there is a risk to life (as opposed to the health) of the pregnant woman; and (ii) as a matter of probability, that risk to life can only be averted by termination of the pregnancy.  In all other events, Irish women may and do avail of their constitutional right to travel, and most often seek abortions in the UK, often at significant personal cost, or use medication purchased online. (Although the purpose of the Amendment is to ‘balance’ the rights to life of the pregnant woman and the foetus, women who are carrying foetuses which are not medically viable are habitually denied abortions in Ireland, even though the state itself argued in D v. Ireland before the European Court of Human Rights that such a foetus does not necessarily enjoy Eighth Amendment rights.) In the past year, three difficulties with the constitutional regime (always a matter of unofficial knowledge) have emerged into public view. (more…)

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inoffice_smallProfessor Fiona de Londras (Durham Law School)

This week an Irish parliamentary committee—the Joint Committee on Health and Children—is taking submissions on what shape proposed new legislation governing access to abortion in Ireland should take. These hearings, which are the first concrete step in the process of introducing such legislation, will almost certainly be contentious and fraught. Abortion is a political bomb in Ireland and has been for decades. This explains why, in spite of the fact that there is a clear right to access an abortion in Ireland, no legislation governing how this right can be exercised has been introduced since it was first clearly established in 1983. The purpose of this post is to outline how we got here, and to identify a few of the main sticking points likely to be raised at the hearings and in the course of drafting the legislation.

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