Rachael Smyth, LLM student International Human Rights Law, University of Groningen, r.smyth student.rug.nl

Between the 1940s and 1980s Irish doctors began carrying out outdated procedures, symphysiotomies and pubiotomies, on pregnant women.^[1] These procedures were given without consent and led to lifelong injuries and disabilities.^[2] Ireland has continued to deny the gravity of this systematic violence on women to this day.^[3]

The Procedure

A symphysiotomy is a procedure first developed in the National Maternity Hospital (NMH) in Dublin in 1944.^[4] The operation aimed at enlarging a mother’s pelvis, which was considered too small to give birth, by cutting through fibres of the pubic joint.^[5]  Pubiotomy, also practiced for the same reason,  involved the sawing of pubic bones.^[6] After recalling the pubiotomy she underwent while fully conscious a victim noted feeling dehumanised stating that “you wouldn’t do it to a dog”.^[7]

These practices were popular among Irish catholic doctors who were against the use of caesarean sections due to the fact that they can limit the number of children a woman could have.^[8]  A large promoter of the symphysiotomy procedure, Dr Arthur Barry, stated that caesarean sections were a form of sterilisation.^[9] At the time in Ireland, sterilisations and even contraceptives were illegal on account of the influence the catholic church had on the state.^[10] Due to this in 2014 the UN Human Rights Committee stated that between 1944 and 1987, 1,500 women underwent symphysiotomies without their consent.^[11]

The performance of a medical procedure without the patient’s consent can amount to a number of violations to human rights; most importantly it can violate a person’s right to be free from torture or inhuman and degrading treatment.^[12] The state has yet to be held accountable for this systemic violation of human rights before an international court and this is due to an inherent failure in the system dealing with historical crimes.  The state has denied recognising that the violation of human rights systemically occurred despite it being a proven common practice. This post will discuss the  attempts which have been made to rectify this by survivors through courts, the investigations which are still underway and how the State has responded to the issue. 

The Courts

In the case of  Re a Ward of Court (withholding medical treatment) (No 2) the Supreme Court in Ireland held that medical treatments cannot be given to a person without their consent.^[13] This constitutes a breach of Article 3 (prohibiting the use of torture) of the European Convention on Human Rights unless the procedure is not invasive or necessary for the patient’s physical or mental health.^[14]

In 2012 the Irish Supreme Court held, in Kearney v McQuillan and North Eastern Health Board regarding medical negligence, that there was no justification for giving the plaintiff a symphysiotomy after her caesarean section, leaving her in chronic pain in the years following.^[15] After this a number of cases followed from victims of symphysiotomies in an attempt, this time, to have the violation of their human rights recognised.

In L.F. v. Ireland, K.O'S. v. Ireland and W.M. v. Ireland, the applicants made complaints on the use of symphysiotomies to the European Court of Human Rights (ECtHR). The applicants had claimed that their rights under article 3 (the prohibition on torture) and article 8 (the right to privacy) of the European Convention on Human Rights had been violated. The ECtHR, in December 2020, found them all to be inadmissible.^[16] This finding was on the basis of non-exhaustion of domestic remedies.

In the LF case the applicant had described feeling “split in half” following a procedure she underwent but was not informed it was a symphysiotomy and only realised years later while watching a national programme on the issue.^[17] By the time she made a claim to the Irish courts it was deemed inadmissible due to the fact that the Statute of Limitations, in which one has a period of two years from the date of their knowledge on the issue for actions for damages, had passed.^[18] The findings in this case led to the applicants in KOS and WM dropping their domestic claims.

Requirement of reparations

The issue at hand, however, did not go unnoticed by the international community. In 2014 the Human Rights Committee (HRC) noted how Ireland failed in establishing an independent investigation on the practice of symphysiotomies.^[19] The state also failed to punish the perpetrators of those who performed the procedure on patients without their consent and also provide for effective remedies for the survivors.^[20] In this observation the Committee referred to Ireland’s obligations to article 2 (provide an effective remedy for a violation of right of the ICCPR) and article 7 (the prohibition of torture and inhuman and degrading treatment) of the International Covenant on Civil and Political Rights.^[21]

Following this, Ireland established an ex-gratia payment scheme for women who underwent symphysiotomies or pubiotomies.^[22] Victims had only twenty working days to apply to the scheme and almost 600 women applied, note that this is a stark contrast to the reported 1,500 known victims.^[23] In 2017 the Committee against Torture expressed concern, not only over symphysiotomies but also over the payment scheme, noting that it was not sufficiently determined on an individual basis.^[24]

In 2022 Ireland stated to the HRC that the procedure was never done unjustified and only conducted in emergency cases, continuing to deny the motivation behind the use of the procedures.^[25] The attitude of Dr Arthur Barry clearly shows how Ireland’s statement was untrue, however, as he was known to encourage his colleagues to interfere early and perform symphysiotomies in place of when a caesarean section would otherwise be needed.^[26] The Committee rejected Ireland’s claim and has called for an independent criminal investigation on the consequences of symphysiotomy.^[27]

Following many attempts by victims to receive adequate justice, it is a relief that the Committee’s involvement has cast a light on the issue, pressuring the state to recognise the violations of human rights which had been hidden for decades. This is a step in the right direction and there is hope yet that victims will have their voices heard internationally and that the state will be held responsible for not complying with human rights standards.

^[1] Jacqueline Morrissey, “‘The Murder of Infants’? SYMPHYSIOTOMY IN IRELAND, 1944-66.” (2012) 20(5) History Ireland 44  <https://www-jstor-org.proxy-ub.rug.nl/stable/41588752> accessed 10 December 2024

^[2] Marie O’Connor, ‘‘This Deliberate and Systematic Practice’: How Doctors’ Religious Beliefs Impelled Ireland’s Forced Symphysiotomies’ (Durham.ac.uk, 26 July 2023) < https://www.durham.ac.uk/research/institutes-and-centres/ethics-law-life-sciences/about-us/news/obstetric-violence-blog/how-doctors-religious-beliefs-impelled-irelands-forced-symphysiotomies/> accessed 11 December 2024

^[3] Ibid.

^[4] Jacqueline Morrissey, “‘The Murder of Infants’? SYMPHYSIOTOMY IN IRELAND, 1944-66.” (2012) 20(5) History Ireland 44 <https://www-jstor-org.proxy-ub.rug.nl/stable/41588752> accessed 10 December 2024

^[5] Judge Maureen Harding Clark ‘THE SURGICAL SYMPHYSIOTOMY EX GRATIA PAYMENT SCHEME REPORT TO MINISTER FOR HEALTH SIMON HARRIS TD’ (19 October 2016) <https://assets.gov.ie/43053/b58b223e633b4123abec37475ebdbe1e.pdf> accessed 20 December 2024

^[6] Ibid.

^[7] Doug Payne, ‘Ireland orders inquiry into "barbaric" obstetric practices’ (2001) British Medical Journal 322(7296) 1200 <https://pmc.ncbi.nlm.nih.gov/articles/PMC1173308/>accessed 12 December 2024

^[8] L.F. v Ireland App no 62007/17 (ECtHR, 18 March 2019)

^[9] Jacqueline Morrissey, “‘The Murder of Infants’? SYMPHYSIOTOMY IN IRELAND, 1944-66.” (2012) 20(5) History Ireland 44  <https://www-jstor-org.proxy-ub.rug.nl/stable/41588752> accessed 10 December 2024

^[10] Criminal Law Amendment Act, 1935, Section 17

^[11] CCPR/C/IRL/CO/4

^[12] Re a Ward of Court (withholding medical treatment) (No. 2) [1996] 2 IR 79

^[13] Ibid.

^[14] Jalloh v. Germany App no. 54810/00 (ECtHR 11 July 2006); Herczegfalvy v. Austria App no 10533/83 (ECtHR 24 September 1992)

^[15] Kearney v McQuillan [2012] IEHC 127

^[16] L.F. v Ireland App no 62007/17 (ECtHR, 18 March 2019); K.O'S. v. Ireland App no 61836/17 (ECtHR, 10 November 2020); W.M. v. Ireland App no 61872/17 (ECtHR, 10 November 2020)

^[17] L.F. v Ireland App no 62007/17 (ECtHR, 18 March 2019)

^[18] L.F. v Ireland App no 62007/17 (ECtHR, 18 March 2019); Section 3(1) of The Statute of Limitations (Amendment) Act 1991, as amended by section 7 of the Civil Liability and Courts Act 2004

^[19] CCPR/C/IRL/CO/4

^[20] Ibid.

^[21] Ibid.

^[22] Judge Maureen Harding Clark ‘THE SURGICAL SYMPHYSIOTOMY EX GRATIA PAYMENT SCHEME REPORT TO MINISTER FOR HEALTH SIMON HARRIS TD’ (19 October 2016) <https://assets.gov.ie/43053/b58b223e633b4123abec37475ebdbe1e.pdf> accessed 20 December 2024

^[23] Ibid.

^[24] CAT/C/IRL/CO/2

^[25] Dr Helen Kehoe, ‘Irish Symphysiotomy before the European Court of Human Rights: A short reflection on Ireland’s adherence to its “secret shameful” past’ (Irish Centre for Human Rights, 22 February 2021) < https://ichrgalway.org/2021/02/22/irish-symphysiotomy-before-the-european-court-of-human-rights-a-short-reflection-on-irelands-adherence-to-its-secret-shameful-past/>accessed 10 December 2024

^[26] Jacqueline Morrissey, “‘The Murder of Infants’? SYMPHYSIOTOMY IN IRELAND, 1944-66.” (2012) 20(5) History Ireland 44  <https://www-jstor-org.proxy-ub.rug.nl/stable/41588752> accessed 10 December 2024

^[27] Dr Helen Kehoe, ‘Irish Symphysiotomy before the European Court of Human Rights: A short reflection on Ireland’s adherence to its “secret shameful” past’ (Irish Centre for Human Rights, 22 February 2021) < https://ichrgalway.org/2021/02/22/irish-symphysiotomy-before-the-european-court-of-human-rights-a-short-reflection-on-irelands-adherence-to-its-secret-shameful-past/>accessed 10 December 2024