Critical Analysis: Ms. Y Tests Ireland’s Abortion Policy

November 2, 2014

Two years ago, the death of Savita Hallapanaver pushed the Irish Government into passing legislation regarding abortion that its own Supreme Court had required it to do fifteen years before hand.  Last month, another abortion-related scandal erupted when an official report was leaked detailing the events leading to the decision to deliver a child at twenty-six weeks gestation due to the asylum-seeking mother’s refusal to eat or drink after having been denied access to an abortion.  These two incidences have breathed life into a campaign in Ireland to legalize abortion.  More broadly, Ms. Y presents the question as to what duty of care governments have towards those seeking asylum within their borders.

Abortion in Ireland has been a controversial issue for decades.  In 1983, a Constitutional Amendment made abortion illegal, with “due regard” to the life of the mother.  A series of Irish and European court cases over the years has affirmed the right of the Irish state to ban abortions, while supporting the right for women to travel.  Additionally, these cases have cited the need for the Irish government to create legislation in order to establish when abortions could be performed, which finally passed in the wake of Ms. Hallapanaver’s death.

A pro-choice march in Dublin.

A pro-choice march in Dublin.
Photo/Caption Credit: Eamonn Farrell/Photocall Ireland, http://www.thejournal.ie/ms-y-hse-report-1685117-Sep2014/

Ms. Y is the first high-profile test of the new legislation.  Soon after arriving in Ireland and requesting asylum, Ms. Y learned she was pregnant. She immediately informed officials that she could not have this baby; it was the result of a rape in her home country.  Over the following weeks, various government entities offered Ms. Y the option to travel to England to obtain an abortion.  However, she would have to procure the funds, and a visa may not be ready for her in time.  As the weeks progressed, she appeared to receive inconsistent counseling and assessment as to her mental health and legal options, and may have failed to pursue the options explained to her.  In early June, she attempted to travel to England without a visa, telling officials there that she would rather die than have the baby.  She continued to deteriorate, until, at 26 weeks gestation, she was not eating or drinking consistently, and doctors assessed her as not being able to carry the baby any longer.  The child was delivered via C-section, survived, and is now in the care of the state.  Ms. Y has medically recovered, but remains too emotionally fragile to participate in the official inquiry.

Ms Y’s case has thrown force into the movement to end Ireland’s abortion ban, but it also reflects a larger issue for Ireland and all states coping with the needs of asylum seekers.  Though Ms. Y could not access an abortion in Ireland, it is widely available in most nearby countries.  Because she chose Ireland as her country of refuge, she found herself in a situation where she could not have her needs as a refugee addressed.

The principle of non-refoulement discourages states from sending persecuted individuals back to a situation of danger.  Beyond this, however, states have few obligations towards asylum seekers.  Indeed, states themselves decide whether non-refoulement applies in a particular case.  The United States found itself in this dilemma over the summer with the thousands of Central American children arriving in the country.  The Ebola crisis has created issues surrounding acceptance, deportation, and care of asylum seekers.  Even despite official protocols, attitudes towards asylum seekers can limit their access to basic services.

Ireland has become aware of the importance of providing asylum seekers with a basic level of care, but Ms Y’s experience demonstrates that it cannot or will not adjust policy to meet the unique needs of an asylee.  Ideally, Ireland will be able to work within the larger European community to address its own limitations.  Indeed, the European Union already works to establish a robust and consistent refugee program.  Unfortunately, much of the focus by the EU and the UN remains on the entry and assessment of refugees, rather than what obligations states have towards its refugees.  Ms. Y’s experience demonstrates that a refugee can flee a dangerous situation only to find herself trapped in a system that further victimizes her.

 

Alicia Gauch is a 3L law student at University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy.

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