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.