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Brain-Dead Pregnant Woman Should Be Allowed to Die, Court Rules

The Four Courts, Dublin

Kieran Lynam

Greg Daly - published on 12/27/14

Irish judges oppose "futile exercise" of somatic support being maintained "at hugely destructive cost."

Ireland’s High Court has ruled that life support may be removed from a brain-dead woman who is 18 weeks pregnant.

The 26-year-old mother of two had been expecting a third child when she was admitted to hospital on November 22 because of a cyst on her brain. She suffered a fall on November 29 and after being diagnosed with a brain edema was declared dead on December 3. Following legal advice, doctors were reluctant to cease supporting her body’s vital functions, as the woman was 15 weeks pregnant at the time and the Irish Constitution explicitly states that the state has a duty to vindicate the life of the unborn as far as possible. This initial decision tallied with normal medical practice, a 2010 University of Heidelberg study having found that when confronted with brain-death in a pregnant woman, “physicians must primarily focus on saving the life of the fetus.”

In light of the medical evidence presented this week, the High Court ruled yesterday, however, that the unborn child “is facing into a ‘perfect storm’ from which it has no realistic prospect of emerging alive,” and “has nothing but distress and death in prospect,” such that it would be “in the best interest of the unborn child” for the medical team to be authorized to withdraw somatic support from the mother’s body.

A key question in the case relate to the relevance of the eighth amendment to the Irish Constitution. The amendment, supported by two thirds of Irish voters in 1983, explicitly enshrined in Bunreacht na hÉireann the right to life of the unborn, imposing on the State a legal duty to respect the unborn’s right to life, with due regard to the equal right to life of the mother, and, “as far as practicable, by its laws to defend and vindicate that right.”

Among the opponents of the constitutional change in 1983 had been the then attorney general Peter Sutherland, who in 1981 wrote to then-Taoiseach Garret Fitzgerald, explaining that over the decades Ireland’s constitution had been interpreted by the courts in such a way that a large number of personal rights were held to be implicit in the Constitution despite not being specifically identified there. He told Fitzgerald that “the right to life has been clearly enunciated by the courts and that, in the circumstances, the constitutional amendment is unnecessary.”

Senior Counsel John Rogers, the lawyer representing the woman’s father, the plaintiff in the case, had argued that article 40.3.3 was wholly irrelevant to this case,  as the purpose of the amendment had been to prevent the introduction of direct abortion into Irish law and this case did not involve abortion, but lawyers representing the Health Service Executive (HSE) and the unborn disagreed.

Gerry Durcan SC, representing the HSE, argued that article 40.3.3 was indeed relevant, but conceded that while the Constitution says that State must “as far as practicable” defend and vindicate the unborn’s right to life,  phrases like “as best it may” and “as far as practicable” mean that this obligation is not absolute. Conor Dignam SC, appointed to represent the unborn, argued that given the woman had already died, the unborn child’s right to life must take precedence over family grief and the woman’s entitlement to dignity in death, but conceded that the vindication of the unborn’s rights was not a straightforward task, and that the Court should “consider what is in the best interests of the unborn.”

While the Court acknowledged that this was not a situation in which two equal rights to life were in the balance, this did not mean, said Justice Nicholas Kearns, President of the High Court, that the Court could simply disregard the mother’s right to dignity in death.

Respect for the dead “has been the hallmark of civilized societies from the dawn of time,” Kearns said, adding, “It is a deeply ingrained part of our humanity and may be seen as necessary both for those who have died and also for the sake of those who remain living and who must go on. The Court therefore is unimpressed with any suggestion that considerations of the dignity of the mother are not engaged once she has passed away.”

“However,” Kearns clarified, “when the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living.”

“The question,” he said, “then becomes one of how far the Court should go in terms of trying to vindicate that right in the particular circumstances which arise here.”

Under the circumstances, said Kearns, "To maintain and continue the present somatic support for the mother would deprive her of dignity in death and subject her father, her partner and her young children to unimaginable distress in a futile exercise which commenced only because of fears held by treating medical specialists of potential legal consequences."

Kearns was not speaking lightly when he described continued somatic support as a “futile exercise.”  Noting that without exception the case’s medical evidence pointed to only one outcome, he said that “highly experienced medical practitioners with the best interests of both mother and unborn child in mind do not believe there is any medical or ethically based reason for continuing with a process which Dr. McKenna described as verging on the grotesque on the particular facts in this case.”

The seven medical experts called to give evidence in the case had unanimously held that vital support should be discontinued. Kearns said that he and his colleagues, Justice Marie Baker and Justice Caroline Costello, accepted the medical evidence that in “this case there is no real prospect of maintaining stability in the uterine environment, having regard to the degree of infection, the fluctuating temperatures in the body of the mother, the difficulty in maintaining a safe blood pressure and the amount of toxic medication being administered to the mother which is not licensed for pregnancy.”

“The somatic support being provided to the mother is being maintained at hugely destructive cost to both her remains and to the feelings and sensitivities of her family and loved ones,” Kearns continued, adding, “The condition of the mother is failing at such a rate and to such a degree that it will not be possible for the pregnancy to progress much further or to a point where any form of live birth will be possible.”

He pointed out that the ongoing somatic support for the mother’s body was in fact causing the body to break down, such that “overwhelming infection from various sources will, as a matter of near certainty, bring the life of the unborn to an end well before any opportunity for a viable delivery of a live child could take place.”

Following the ruling, Kearns said he was grateful that the legal team representing the unborn would not be appealing the decision to Ireland’s Supreme Court, clearing the way for the woman’s family and partner to arrange for her burial.

Commenting on the case for the Pro Life Campaign, Dr. Ruth Cullen expressed sympathy to the family of the deceased, but said that, “While it is very difficult for the families concerned that cases like this sometimes end up in court, the fact is that it is a sign of a healthy democracy that life and death issues are taken seriously and appropriately determined.”

Challenging how some seemed determined to manipulate the tragic death of a mother who had dearly wanted her child in order to argue for the removal of Article 40.3.3 of the constitution, Cullen pointed out that, “In countries where there is no protection for the unborn, disagreements sometimes emerge that have to be adjudicated on. There is nothing unique to Ireland about this case as some would try to suggest.”

“It is crass and unseemly,” she said, “the way some people are using this sad case to push for repeal of the Eighth Amendment, which offers the only remaining legal protection for the unborn in Ireland.”

Greg Daly covers the U.K. and Ireland for Aleteia.

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