On Friday a three-judge bench of the High Court of Ireland (Kearns P, Baker & Costello JJ) ruled in PP v Health Service Executive  10792P that a brain-dead pregnant woman could be taken off life support. The doctors who had treated her were concerned that removing her life support might violate Ireland’s constitutional protection of the unborn child. In a post on Human Rights in Ireland prior to the judgment, Fiona de Londras explained that:
“By granting a constitutionally protected right to life to the unborn foetus, the Constitution has embedded a ‘two patient’ approach that, where the pregnant woman is effectively deceased but the foetus is not, inevitably morphs into a ‘one patient’ approach. This one patient, however, is dependent for life on the body of the deceased woman and thus questions of difficult and harrowing proportions arise.”
The plaintiff, PP, was the father of NP. NP, who was 15 weeks pregnant, died in hospital on 3 December 2014 aged 26. She had two children aged six and four. She was not married but at the time of her death was engaged to MJ, the father of her unborn child.
On 29 November NP sustained a fall while in hospital and was later found to be unresponsive. She was transferred to a Dublin hospital where, on 2 December, 2014, the clinicians told her father that because of her medical condition there should not be any attempt at resuscitation in the event of a cardiac arrest; and on 3 December the clinicians concluded that NP had suffered brain stem death. Since 8 December she had been in an intensive care unit where she was being supported by mechanical ventilation, fed by a naso-gastric tube and maintained on very heavy doses of medication for a number of serious conditions. Her father argued that those measures were unreasonable and should be discontinued: in short, that she should be taken off life support.
Article 40.3 of the Constitution provides that:
“1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right” [emphasis added].
The plaintiff argued that Article 40.3.3 was irrelevant in that the right to life of the unborn was not engaged. Article 40.3.3 was about the the statutory ban on abortion; but in the instant case there would be no deliberate interference with the unborn so as to procure a miscarriage. In the circumstances of the death of the mother from brain injury, the right to life of the unborn was not engaged within the meaning of the Article [p 20]. The Health Service Executive argued that Article 40.3.3 must be taken as meaning that both the born and the unborn enjoy a right to life and that the State had to respect the unborn’s right to life and as far as practicable defend and vindicate that right. However, that obligation was not absolute, as was clear from the wording of Article 40.3: “as best it may” and “as far as practicable”. Counsel for the unborn submitted that Article 40.3.3 was engaged even though the case was not concerned with abortion: Article 40.3.3 must mean that, given that NP had died, the rights of the unborn child had to take precedence over the grief of her family and her entitlement to a death with dignity.
Kearns P dismissed the suggestion that NP might have wanted an abortion: on the contrary, she had posted a picture of her ultrasound scan on the internet. However, the foetus’s chances of survival if she were maintained on life support were very slim indeed:
“The entire medical evidence in this case goes one way only, and that is to establish that the prospects for a successful delivery of a live baby in this case are virtually non-existent. The medical evidence clearly establishes that early gestation cases have a much poorer prognosis for the unborn child than those cases where brain death of the mother occurs at a later stage, usually improving after 24 weeks [pp 17-18].
“There is uncontradicted evidence from all of the medical experts that brain death at such an early stage of pregnancy precludes any realistic hope that the baby in this case might be born alive. The Court finds as a fact that there is no realistic prospect of continuing somatic support leading to the delivery of a live baby. While there have been instances where lengthy somatic treatment has led to the birth of a live baby, the evidence in this case … is persuasive to a conclusive degree that the ongoing somatic support for the mother is causing her body increasingly to break down and that overwhelming infection from various sources will, as a matter of near certainty, bring the life of the unborn to an end well before any opportunity for a viable delivery of a live child could take place” [pp 18-19].
The Court took the view that the present wording of Article 40.3.3, in its plain and ordinary meaning, acknowledged in simple terms the right to life of the unborn which the State, so far as practicable, should defend and vindicate [p 23]. However, it did not discount
“… the mother’s right to retain in death her dignity with receive proper respect for her autonomy with due regard to the grief and sorrow of her loved ones and their wishes. Such an approach has been the hallmark of civilised societies from the dawn of time. It is a deeply ingrained part of our humanity and may be seen as necessary both for those who have died and also for the sake of those who remain living and who must go on. The Court therefore is unimpressed with any suggestion that considerations of the dignity of the mother are not engaged once she has passed away.
However, when the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living” [p 23].
Article 40.3.3 was engaged; but the question for the Court was was how far it should go in trying to vindicate the right of the unborn child in the particular circumstances of the case [p 24].
Citing S R (A Ward of Court)  IEHC 2: 1 IR 305, the Court found that its exposition of the “best interests principle” was appropriate for application to the present case [p 26]. The Court was satisfied that a necessary part of vindicating the right of the unborn child was to look at the practicality and utility of continuing life support:
“This unfortunate unborn has suffered the dreadful fate of being present in the womb of a mother who has died, and in which the environment is neither safe nor stable, and which is failing at an alarming rate … The somatic support being provided to the mother is being maintained at hugely destructive cost to both her remains and to the feelings and sensitivities of her family and loved ones. The condition of the mother is failing at such a rate and to such a degree that it will not be possible for the pregnancy to progress much further or to a point where any form of live birth will be possible…” [p 28]
To maintain and continue the present somatic support for the mother would deprive her of dignity in death and subject her father, her partner and her young children to unimaginable distress in a futile exercise which commenced only because of fears held by treating medical specialists of potential legal consequences. Highly-experienced medical practitioners with the best interests of both mother and unborn child in mind do not believe there is any medical or ethically based reason for continuing with a process … described as verging on the grotesque on the particular facts in this case” [p 29].
The Court therefore decided to authorise withdrawal of life support at the discretion of the medical team and made a declaration and order to that effect – and the Irish Times subsequently reported that there was to be no further appeal to the Supreme Court.
Comment in such a case is almost superfluous – and there are already analyses on the Web by Irish academics far better qualified to comment than I. But what the case does illustrate is the difficulties in the current law for conscientious medical practitioners.
Over at Human Rights in Ireland, Máiréad Enright describes the judgment as “a very strange one” and points out that it is the first reported medical law case in which a court has used Article 40.3.3 outside the direct abortion context. She is clearly unhappy that the court “invents a new concept of the ‘best interests’ of the unborn child out of thin air” and has obvious reservations as to how that might develop in future. Equally, Conor O’Mahony, at Constitution Project @ UCC, suggests that
“The question for the future is whether the written judgment provides any clarity on the balance of interests in a case involving brain death at a more advanced stage of pregnancy”
– and concludes that it does not.
As we have noted previously, until recently the law on abortion in Ireland was a combination of case-law, Article 40.3.3 and ss 58 & 59 of the (UK) Offences Against the Person Act 1861. These last were repealed by the Protection of Life During Pregnancy Act 2013, s 22 of which replaced them with a new offence “to intentionally destroy [sic] unborn human life” that carries a maximum penalty of 14 years’ imprisonment. Fiona de Londras has suggested that PP is not a case that falls within the terms of s 22 because the 2013 Act deals only with situations in which there is a risk to the life of a pregnant woman that might be averted through abortion. However, it is evident that the medical staff who were attending NP were very unsure as to whether or not turning off her life support would be an offence under s 22 – which suggests that there is still considerable room for further clarification.
“the prospects for a successful delivery of a live baby in this case are virtually non-existent”
If this is true, then the foremost out of the only three reasons for finding anything about which to lament vigorously in this pragmatic decision, in a sad case, lies in this: That the difficulty in the present facts of making even a cigarette paper-thin distinction between “virtually non-existent” prospects of the doomed foetus, and *absolutely non-existent* prospects, will likely be glossed over in the press releases issued by a gleeful anti-foetus lobby, who simply delight in the death of unwanted foetuses, the more the merrier, even if (as now) the only reason they are unwanted is that their mothers are brain dead, and their dads are absent. The usual pro-aborts will likely claim a victory for the general principle that no human matters at all, unless his or her mother wants him to be born, or he or she has *already* been born.
A second and lesser reason to lament, is that the doomed foetus’ dad wasn’t a party to the proceedings. I would likely have been a paternal party, if it had been *my* baby momma that was brain dead, and *my* still-foetal child whose “prospects” the court had calculated so dismally.
Thirdly, one cannot easily rid oneself of the suspicion that this (as I have called it) “pragmatic” decision, was really more of an *economic* decision at heart, even if the judiciary daren’t admit it. I might have cost a lot of money to keep a brain dead mum on life support to full term, just to give a “virtually non-existent” prospect of survival to a child nobody who was a party to the proceedings cared about.
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