Abortion buck has been passed yet again

Another sad case in the hospitals has shown up a lack of legislative action. Again. Dr Adam McAuley reports

People have questioned the High Court’s role in the case of the pregnant woman who is braindead and on a life-support machine and why families cannot make these decisions.

Irish law does not permit family members to make decisions on behalf of an adult relative who has lost the intellectual capacity to make his or her own decisions. This court is the only forum available to resolve a disagreement between clinicians and family members about medical intervention for such an adult.

The court has two procedural mechanisms to consider this woman’s situation. It may exercise its wardship jurisdiction by making the woman a ward of court. The court must take every important decision affecting the welfare of the ward.

The other mechanism is the inherent jurisdiction to make orders protecting the constitutional rights of an incompetent adult. The court’s guiding principle is the best interests of this woman for wardship and the inherent jurisdiction. However, it is entering unchartered waters because the woman is entirely dependent on machines to maintain her physiological health, which, in turn, maintains her unborn child.

The court’s first task is to establish the condition and prognosis of the woman and her unborn child. The decision of the court may be dictated by this medical assessment, for example, treatment withdrawal may be indicated if this assessment shows to a high degree of probability or certainty that the woman is braindead and that viability of the unborn child has been irretrievably compromised.

The second task is to address the interaction between the best interests and rights of the woman, the rights of her unborn child, and the role of the Protection of Life During Pregnancy Act 2013. In 1995, the Supreme Court decided that the right to life implies a right to die a natural death in a case concerning a woman who was in a near persistent vegetative state but was not braindead. Some jurisdictions use brain death as the legal criteria for death requiring the removal of life support. The High Court will not adopt this approach.

The court will find that this woman retains her rights to die a natural death, privacy, bodily integrity, and dignity. The constitutional concept of dignity may be crucial when deciding if protracted use of life support is warranted. The court must decide what course of action vindicates her rights. The court can take into account any previously expressed views of the woman about her pregnancy, motherhood, and what should happen to her if she was incompetent. The court will consider the wishes of the mother’s family.

There is no doubt that the court would decide that withdrawal of life support is in the woman’s best interests and vindicates her rights, if she was not pregnant. The stark reality is that withdrawal of the mother’s life support ends the life of her unborn child. Clinicians fear that they will breach their ethical and legal duty to preserve the life of this unborn child if they remove life support from this woman. Indeed, the Protection of Life During Pregnancy Act exposes clinicians to a maximum term of 14 years imprisonment if they “intentionally destroy unborn human life”.

The eighth amendment acknowledges a right to life for an unborn child. The political motivation for this amendment was to restrict the availability of abortion. Despite this, some Supreme Court justices stated in a 2009 case that the amendment could be relevant outside the context of abortion. Their statements remain persuasive because the case was about frozen embryos and not an unborn child in the womb. The High Court must decide that the justices’ statements are binding.

If the amendment applies, the right to life of this unborn child is not absolute. The court must have due regard to the equal right to life of this mother, which includes her right to die a natural death. In addition, the right to life of the unborn child must only be vindicated “as far as practicable”. A 2010 study on the outcome of life support for braindead women undertaken by the University of Heidelberg found a child was born in 63% of cases with two children being born after 100 days of life support.

If the court orders the withdrawal of life support, it will declare that such withdrawal does not constitute an intentional destruction of unborn human life under the 2013 Act.

Ministers have raised the necessity of a referendum to alter the eighth amendment in light of this case. However, this case highlights the failure of successive governments to enact comprehensive laws regulating the current version of the eighth amendment. The 2013 Act was passed 30 years after the eighth amendment and only after Ireland was found to be in breach of the European Convention of Human Rights by the European Court of Human Rights. This lack of political courage causes legal uncertainty and stress for individuals, their families and clinicians.

Dr Adam McAuley is Lecturer in Law at School of Law and Government at DCU