Why Savita Halappanavar’s death has little or nothing to do with Irish abortion law

The tragic case of Savita Halappanavar’s death was inevitably going to be a major part of the Repeal the 8th debate. According to Repeal the 8th activists (and indeed many activists globally), Ireland’s abortion law forbade a termination in Savita’s case, leading to her death and thereby being responsible for it. The law should therefore be changed.

The above story is, however, false. This is demonstrably clear simply from reading the report on the case – written by a pro-choice advocate, Sir Sabaratnam Arulkumaran – although it does help to have a medical background, as I am privileged to enjoy in the United Kingdom. In this article I explain objectively why the above story is false, as well as correcting exaggerations made by some pro-life advocates on the same topic. Remaining as objective and focussed as possible, I do not seek to discuss any other issues relevant to Irish abortion law, polemics, medicine, or the like. I will not discuss relative maternal safety in Ireland, the ethics of abortion, or the character of the activists on either side. I do not intend by my terminology to imply that I agree with the standard medical terminology in this area. I use it only to be as clear as possible medically and legally.

The law as it stands

The most fundamental problem with the Repeal claims is identified clearly in Appendix A of Arulkumaran’s report: namely, that Irish law already gives legal protection to women and doctors seeking abortion in order to prevent a pregnant woman from death. Peter Finlay SC clearly lays out the legal basis for this in Constitutional, Statutory and Case Law, but since we are specifically addressing those in favour of repealing the relevant constitutional amendment, I note his key conclusions on the mother’s-life exception to the 8th Amendment.

These stem primarily from Attorney General v X & Others (1992) (the 8th Amendment was added in 1983). Finlay notes the relative clarity of the judges in this case, summed up by Chief Justice Finlay:

“I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40, s. 3, sub-s. 3 of the Constitution.”

In 1995 Chief Justice Hamilton gave a similar judgment:

“The Attorney General v. X. [1992] 1 I.R. 1 … established that having regard to the true interpretation of the Eighth Amendment, termination of the life of the unborn is permissible if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that that risk can only be avoided by the termination of her pregnancy.”

Finlay concludes:

“As is evident from the foregoing, a termination of pregnancy which is likely to impact adversely upon the constitutional right to life of the unborn is nevertheless lawful under the terms of Article 40.3.3° if both of the two conditions are established as a matter of probability, namely (1) that “there is a real and substantial risk to the life, as opposed to the health, of the mother” and (2) that “that risk can only be avoided by the termination of her pregnancy.””

The matter is, therefore, relatively closed. Irish Law does not prohibit women from abortion where the life of the woman is endangered by continuing the pregnant. So if Savita’s life was endangered by continuing the pregnancy (as, I argue later, it was – though this is very rare), the decision not to terminate was not applying the law correctly. The law is sufficient as it stands. Savita’s tragic death is not a consequence of it, and so not a reason to change it.

It is nevertheless worth commenting on the medical facts to see what, exactly, should have been done, and why this tragedy occurred. Arulkumaran does this ably, comprehensively, and for the most part clearly (there is one key ambiguity, which I shall discuss).

Let us start with one key fact, probably the only fact in the case which could be used as support for the Repeal claims. Medically speaking, in order to treat Savita to give her the best chance of survival, the foetus should have been delivered earlier (almost certainly leading to its death, as the pregnancy was only 17 weeks advanced). Thus, claims such as the following:

“Abortion is not a cure for septicaemia (or any other medical condition)” (www.savitatruth.com/errors)

are misleading. Although it is open to debate whether delivery of the foetus in this case should be characterised as ‘abortion’ (since it was almost certainly going to die anyway), and although it is technically true that abortion never cures septicaemia (infection in the bloodstream, which usually originates from one particular part of the body), and that abortion is not in general a treatment for septicaemia, it is recommended in these cases that to improve the chance of the mother’s survival, the foetus should be delivered. I will briefly relay the story of what happened until this later stage (the report is much more detailed).

The history of the case

On 21st October 2012 Savita came twice to the gynaecology ward with a history of severe back pain and a sensation of something ‘coming down’ in her pelvis. She was seen by the registrar whose assessment was that she was likely suffering an impending (and inevitable) miscarriage. On 22nd October at 00:30 she suffered a spontaneous rupture of her membranes and vomited. From this point, Arulkumaran notes, she was at gradually increased risk of serious intrauterine infection (infection is a common cause of SROM, and given the vomiting and elevated white cell count the previous evening it is plausible that she already had the infection at this point – at the very least it should have been in the minds of the doctors – but we cannot guarantee that she had an infection at this point). She was also increasingly likely to deliver her non-viable foetus – and it was virtually certain that she would not retain the foetus until the point of viability (around 21 weeks at the very earliest). Later that day she had an increased heart rate, a sign of systemic infection. She was prescribed antibiotics, apparently only on the grounds that she had suffered rupture of membranes and so was at risk of developing an infection. The antibiotics were started over 24 hours after presentation. The plan was to await events (in the absence of known infection) and for 4 hourly observations. These observations did not occur this regularly – a central criticism made by the report.

Early in the morning of 23rd October, Savita’s blood pressure was slightly low, another indication of possible infection. Shortly after, Savita and her husband were told that miscarriage was inevitable (though the foetus was still alive at this point). At this point, they also enquired about a termination. Then:

O&G Consultant 1 stated that the patient and her husband were advised of Irish law in relation to this. At interview the consultant stated “Under Irish law, if there’s no evidence of risk to the life of the mother, our hands are tied so long as there’s a fetal heart”. The consultant stated that if risk to the mother was to increase a termination would have been possible, but that it would be based on actual risk and not a theoretical risk of infection “we can’t predict who is going to get an infection”.

The implication seems to be here that no suspicion of an infection had yet been made despite the markers (which, granted, at this stage were still relatively subtle and non-specific). Throughout the day, however, Savita’s heart rate gradually increased significantly further beyond normal bounds. Savita felt weak that evening. She was left to sleep by the time the doctor managed to see her that night.

At 4:15AM on 24th October, Savita felt cold and shivery, an indicator of sepsis. She also vomited, confirming this. It was noted that the room was cold. She had a low grade temperature at 37.7C (i.e. slightly higher than normal, but not so clearly high as to indicate sepsis). No heart rate or blood pressure measurements were taken. At 6:30AM all observations were taken, the combination of which clearly demonstrated that Savita had (severe) sepsis – though with no indication yet of the origin of the infection. At the subsequent assessment at 7AM she exhibited tenderness in the lower abdomen, and had a ‘foul-smelling brownish discharge’ suggestive of intrauterine infection – this is important since intrauterine infections are treated very differently from other kinds of infections in the context. The diagnosis was given as likely chorioamnionitis. She was started on intravenous antibiotics and fluids. At the ward round she was diagnosed with chorioamnionitis by the consultant.

The aforementioned ambiguity lies here. Although a provisional diagnosis of chorioamnionitis was given, the consultant retrospectively confirmed to the investigation that the focus of the team was to find the source of the infection. Perhaps the most charitable way to interpret this is that they thought it was likely chorioamnionitis but still had some uncertainty. The report notes that they were explicitly awaiting a mid-stream urine sample result at this time – suggesting they were still looking for urinary tract infection as an alternative source. This is important, since RCOG guidelines say that delivery of the foetus during maternal instability (e.g. in severe sepsis) increases maternal and foetal mortality rates (and is thereby not recommended), unless the source of the infection is intrauterine (i.e. in chorioamnionitis). So if the infection were from somewhere else (e.g. her lungs), delivery of the foetus would harm both the patient and the foetus.

At this point, the consultant also retrospectively said that they did not think the patient was in septic shock (a late point in severe sepsis) because the blood pressure was OK. This was erroneous. The plan was to induce labour later in the day if the patient did not improve and if there was no foetal heartbeat present. The white cells came back shortly afterwards as very low – another sign of severe sepsis. The blood pressure by midday was low. The patient was shortly afterwards diagnosed with septic shock, likely (but still not certainly) to be secondary to chorioamnionitis.

At this stage, the infection was life-threatening, and the consultant discussed with another consultant the need for a delivery. A delivery in this context would have improved the chances of Savita surviving (though by no means made it overall likely), and if the foetus were viable, would likely have improved the chance of its survival too.  Sadly, it is virtually certain that the foetus would have died either way in this case.

Around this time, misoprostol was prescribed to induce delivery. It was not administered because Savita delivered the foetus spontaneously shortly afterwards. From this point Savita was transferred to a High Dependency Unit and then Intensive Care. Sadly, she passed away on 28th October.

Many factors contributing (and some not contributing) to Savita’s death were identified by the investigation, including: difficulty of diagnosis of sepsis in mid-pregnancy; lack of clear local or national guidelines for management of early 2nd trimester inevitable miscarriage; lack of use of Obstetric Early Warning Score Chart; delay in using empiric broad-spectrum antibiotics; lack of clear arrangements for following up blood test results; lack of attention paid to early markers of infection (e.g. raised white cell counts); lack of clear communication and handover; lack of expedition of delivery, failure to follow hospital guidelines on management of sepsis, and others. It is plainly evident to anyone studying the case that – even if Irish law is problematic in this respect – it would only be one part of a large chain of errors or failures of optimisation and so probably not the determinative factor. However, as we have seen, the law allows terminations in situations of such severity – the problem is that the clinical team did not appreciate the severity for a large variety of reasons.

Arulkumaran does note clearly that concern over the law influenced the clinical judgment of the team. It is not clear how or why this was the case, since they knew that the law allowed termination of the pregnancy in case of life-threatening emergency, and that sepsis secondary to intrauterine infection was a life-threatening emergency. Our best guess is that there was some residual uncertainty over the source of the infection making him doubt whether termination was appropriate. However, any such uncertainty about legality of termination was paralleled by uncertainty about the medical propriety of termination: as noted by the RCOG, delivery in the setting of maternal instability is not recommended unless the infection is intrauterine.

What appears to have happened in this case, then, is that there was a severely delayed recognition of the likelihood that Savita had an infection (signs of which were present very early on – infection is a common reason for spontaneous rupture of membranes and so should have been investigated straight away, and the blood tests later on the first day confirmed this), and of the likelihood of increasingly severe infection at each moment after membrane rupture occurred. There was also significantly delayed recognition of the probable cause of the sepsis as intrauterine. This meant that termination of the pregnancy was delayed and was a contributing (though by no means the causative) factor in Savita’s death.

So we are clear. Irish law permits termination of pregnancy in the case of risk to the life of the mother, and that is the situation Savita was in. The only thing to be said in favour of the Repeal claims in this case is that perhaps the law is misinterpreted by clinicians, or is ambiguous with respect to what level of risk is necessary. But clearly Savita had exceeded this level of risk far earlier than the clinical team thought – the issue is that the clinical team did not recognise the extremely high likelihood that the sepsis had an intrauterine source. These were errors of clinical judgment, with probably a small element of ambiguity over what level of risk constitutes a sufficient level. But what is clear that if Savita’s condition had been recognised appropriately in accordance with clinical standards and guidelines, termination would have legally been offered at an earlier stage. Even given the severity of her condition, however, and given the manifold clinical problems apart from a delayed offer of termination, it is far from clear whether she would have survived or not. My suspicion (though only an educated, informed clinical conjecture) is that she would not have. There were already too many delays on account of the clinical team failing to come to the right clinical diagnosis.

There is thus no reason to think that repealing the 8th Amendment would prevent similar situations happening again, and no reason to think that the 8th Amendment is to blame for this case. If there is any problem with the law (which I doubt, but that is not the topic of discussion), it is a problem of ambiguity, not a problem of substance. But that can be amended without repealing the law, since clearly the law already allows for termination when the mother’s life is at risk. I leave it to my readers to decide on the basis of other evidence whether or not the 8th Amendment should be repealed: but this case is certainly no help to determining the answer.

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