Unborn baby gets barrister for court battle

A young senior counsel, Conor Dignam, has been given the most important legal assignment of his career — representing the baby whose heart continues to beat in the brain-dead body of its mother in a country hospital.

High Court president Mr Justice Nicholas Kearns, was told that Mr Dignam, with barrister Siobhan Phelan and solicitor Patricia Drumgoole, had been appointed by the HSE to represent the interests of the unborn in today’s life-or-death High Court struggle regarding the future of the baby and its mother.

Mr Justice Kearns said he would sit today with Ms Justice Marie Baker and Ms Justice Caroline Cosetello as a divisional court of the High Court to determine the issues concerning the mother, currently on a life-support machine, and her baby of 17 weeks’ gestation.

Gerard Durcan, a senior counsel for the HSE, told Mr Justice Kearns that the executive had appointed Mr Dignam to lead a legal team on behalf of the unborn.

He said the HSE was also in the process of appointing a legal team to represent the interests of the mother, a woman in her 20s who suffered a brain trauma a number of weeks ago and who is considered by neurosurgeons to be brain dead.

She was treated in a Dublin hospital before being moved to a hospital in the country where she remains on a life-support machine.

Neurosurgeons recommended that her life-support machine be switched off after determining she was clinically dead.

However, lawyers for the HSE stepped in after another medical specialist treating the woman expressed concern about legal issues arising in the case.

The woman’s father, represented by r John Rogers, senior counsel, and barrister Catherine Forde, BL, is expected to ask the divisional court that his daughter be made a ward of court. This would allow him, with the approval of the court, to administer her affairs.

The father, as well as the woman’s family members, is understood to be in favour of her life support being switched off and the court will be told today if they wish to have a declaratory order made in those terms.

As the court prepares to hear the case, Dr Adam McAuley, a lecturer in Law in the School of Law and Government at Dublin City University, said past failures to legislate in the area had now cast families, clinicians, and the High Court into “uncharted waters”.

“The court’s guiding principle is the best interest of this woman for wardship and the inherent jurisdiction,” he said.

“However, the court is entering into uncharted waters because the woman is entirely dependent on machines to maintain her physiological health, which, in turn, maintains her unborn child.”

He said the court will have to establish the condition and prognosis of the woman and her unborn child, and will also have 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.

Dr McAuley said: “This case highlights the failure of successive governments to enact comprehensive laws regulating the current version of the eight amendment.

“This lack of political courage causes legal uncertainty and stress for individuals, their families, and clinicians.”