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Thursday 30 November 2023 Dublin: 3°C
Sam Boal
8th amendment

Court told 'right to life of unborn' greater than 'right to dignity in death'

A ruling in the case of the pregnant woman who has been declared clinically dead will be made on 26 December.

THE HIGH COURT heard legal submissions from all parties – including representatives for the unborn – in the case of a clinically dead pregnant woman being kept on life support today.

Legal representatives for the woman’s father summed up yesterday’s evidence from a number of independent medical experts, stating that the current course of treatment should not be continued.

It had been described as “experimental” and “grotesque” by doctors in court yesterday.

Senior counsel for the father, Mary O’Toole told the court the family were watching their daughter and mother deteriorate in a situation “akin to a horror movie” and that there is a “high probability” the unborn has “no chance of survival”.

It would appear unanimous among clinicians with vast experience in various specialities that the prospects to even viability, never mind birth, are small to almost negligible.

She also asked the court to consider the “consequence and outcomes” to the foetus and not just its viability given its current environment and exposure to medicines and chemicals.

O’Toole agreed with the court’s suggestion that this case is not “an abortion case”. Commenting on Article 40.3.3 in the Constitution, she said the amendment exists to “stop people maliciously interfering” with the unborn.

What we have here, for all intents and purposes, is an act of god… a mother stricken with a dreadfully catastrophic brain injury.

She also agreed with Justice Nicholas Kearns when he described this case as fact-driven and specific to an early gestation pregnancy. O’Toole had suggested arguments about practicability could be made if there was a shorter time period.

The woman at the centre of the case is 17 weeks pregnant but was declared clinically dead on 3 December, at just 14 weeks gestation.

Right to live versus right to dignity in death

The three-judge court, led by President of the High Court Justice Nicholas Kearns, also heard from counsel for the unborn and the mother.

Both lawyers indicated the difficulties they were faced with in representing clients who cannot give specific instructions.

Conor Dignam, Senior Counsel for the unborn, told the court that it must be satisfied that there is “no possibility of survival before any act that would bring the life of an unborn to an end”.

He also argued that the unborn’s right to life must take precedence over the mother’s “residual” right to dignity in death.

“There is still a balance… it falls in favour of right to life of the unborn,” he added.

At the start of his submission, he said it was difficult for human beings with empathy to process that the mother’s right to life is no longer a consideration in this case. He argued that the right to life of the unborn must be defended and vindicated as far as is practicable.

Dignam also made some technical legal arguments about the difference between the Irish and English language versions of the 8th Amendment in the Constitution.

Cormac Corrigan, counsel for the mother, said there is no direct evidence about what her wishes are.

He said she is not currently suffering with any sense of pain or trauma.

“Nobody could stand here today and say this woman, at this stage, has any dignity,” he told the court, referencing an argument that she should be allowed to pass with dignity.

“She can’t now die with dignity,” he said before a judge asked if allowing her to be laid to rest would allow for the return of some dignity.

The HSE has asked the court to make a declaration that ending life support would be lawful in this case.

Doctors need certainty

Gerard Duncan, SC for the HSE, said the woman is “entitled to dignity in death”.

He also told the court that doctors need to work in conditions that they can trust their own judgement.

“They wanted to do the best for the mother and the unborn child,” he said. “They felt constrained by a lack of clarity in legal position.

Doctors need reassurance that their view about best interests must carry very considerable weight.

“That would be even more the case when there is consensus, and even more still when it coincides with what the family wants.”

Yesterday, the High Court heard that there is “no reasonable prospect” the child will be born alive and the HSE asked the court for a declaration that discontinuing treatment would be lawful.

The woman was declared dead at a hospital in Dublin on 3 December, after being transferred from a hospital outside the capital where she had suffered a massive brain trauma days earlier and been placed on life support.

The woman’s father told the court that the family — including the father of the unborn child — had agreed that the life support should be turned off.

He said they wanted to be allowed put her to rest, and afford her the appropriate dignity.

The father of the unborn child said he had discussed the issue with the woman’s family and believed ending the support treatment was the best decision.

The judges have retired to consider their decision and a ruling will be made on St Stephen’s Day at noon.

- First published 1.09 pm

Read: Case of clinically dead pregnant woman back in the High Court today