Doctors must balance between rights of mother and unborn

A pregnant woman who has brain trauma is being kept on life-support in hospital. Dr Conor O’Mahony examines the legal issues at stake

Why was life-support not turned off in this case?

While the Supreme Court has held that people have a constitutional right to die a natural death without having life prolonged by artificial means, the Constitution also says the State is obliged to defend and vindicate the right to life of the unborn.

Case law has indicated that the right to life takes priority over other rights, and so it is unclear whether life support could be discontinued in a manner that would be consistent with the unborn’s right to life.

Does that mean pregnant women would always have to be kept alive until delivery in cases like this?

Not necessarily. It is a balance between the competing rights of the mother and the unborn, which, in the absence of relevant legislation, would be a matter for the courts to resolve.

The Constitution states that right to life of the unborn need only be defended and vindicated “as far as practicable”.

The key question is whether keeping a clinically braindead woman alive until delivery could be considered “practicable”.

In the X case, keeping a pregnant girl on suicide watch for the duration of her pregnancy was considered not to be practicable.

In cases like this does the duration of the pregnancy have an impact? Is it a different situation legally if the unborn child is too premature to survive outside the womb versus a virtually full-term pregnancy?

In principle, all unborn children have the right to life under the Constitution, irrespective of the stage of the pregnancy.

Clearly, the more advanced the pregnancy, the more practicable it is to vindicate the right to life of the child.

Emergency caesarean-sections take a matter of minutes, so if the pregnancy is virtually full-term, the child could be delivered around the time of death without any need to keep the mother alive for a prolonged period.

Is it always an unmarried person’s parents who make the decision on turning off a life-support machine?

In practice, doctors will consult with next-of-kin about removal of life support, but there is actually no legal basis in Ireland for next-of-kin to make decisions for adults.

If a person is unmarried and they have no adult children, their parents are next-of-kin.

Can a partner/father of a (unborn) child be the next-of-kin? Is this automatic or does the woman have to specify them? Do they then get to make the ultimate decision?

A father of a child in Ireland will have the power to make decisions for a child (either jointly with the mother or alone if the mother is dead) if he is the child’s legal guardian.

A father will automatically be a guardian if he is married to the mother of the child.

Unmarried fathers can become guardians by court order or by agreement with the mother.

An unmarried father who has not been appointed as a guardian would have no legal say over the child.

Is there a legal need for a timeframe on any decision? Outside of financial cost, can next-of-kin decide to keep someone on life-support for a duration of their choosing?

There is no law governing this situation. A relevant consideration is the point at which the patient is considered to have died, but, Irish law has not provided a clear definition.

Medical Council guidelines says doctors are not obliged to start or continue artificial nutrition and hydration that is futile or disproportionately burdensome even if such treatment may prolong life.

If a pregnancy of a woman on life-support continues to term and a healthy baby is born, what is the legal situation regarding custody of that child? If the father of an unborn child had wanted the life-support turned off then would that impact on his parental rights?

If the child is born and does not have any legal guardians, and the mother has not appointed any in her will, then it would be open to any person to apply to the court to be appointed guardian.

Guardians are entitled to custody as against any person who is not a guardian.

The decision on guardianship will be made by reference to what is in the best interests of the child.

The father’s stance on whether life support should be turned off is not a key consideration here; the question is whether he would be the best person to care for the child.

What impact would it have on the case if the woman’s partner or parents claim she had previously said she would hate to be kept alive on life support — or if she had said she would like to have her baby born in any situation? As so many people would be discussing this case and similar hypothetical situations today, do wishes expressed have any bearing on future situations?

Advance care directives currently have no statutory basis in Ireland and their precise legal effect is unclear.

Dr Conor O’Mahony is a senior lecturer in the faculty of law at University College Cork



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