Dearbhail McDonald: Courts are asked to step in where our legislators failed to act
Published 05/02/2016 | 02:30
At one level the request of Patrick Enright - to have his unborn daughter's death declared a full death for the purposes of our road traffic statistics - is both understandable and simple.
At another level, it raises complex questions about personhood and the constitutional and legal rights to be afforded to the unborn.
Four years ago, Mr Enright's wife Mary (28), who was 34 weeks' pregnant, died when the car she was driving was involved in a head-on collision with one driven by Robert Stoker.
Both died instantly in the crash outside Bansha, Co Tipperary, and last month a jury at an inquest into their deaths found that they both had died as a result of multi-traumatic injuries. The jury also found that the Enrights' unborn daughter, named Mollie, died at University Hospital Waterford due to a lack of oxygen following her mother's death.
Mollie was stillborn, having been removed from her mother's body during a post-mortem. But her family asked the coroner not to declare Mollie's death as a stillbirth pending the outcome of their constitutional challenge.
Mr Enright has mounted a challenge seeking to have Mollie declared an "unborn" within the meaning of Article 40.3.3 of the Constitution at the time of her death. He is also suing for damages for breach of Mollie's constitutional rights and has asked the High Court to strike down, as unconstitutional, Ireland's definition of "stillborn child" and "stillbirth".
Mr Enright wants Mollie's "life, death and existence" to be recorded, registered and recognised, therefore allowing the public record to show that three, not two people died on that tragic night in Tipperary.
Last year, the Enright and Walsh families met Tánaiste Joan Burton to communicate their desire to have a death certificate issued for Mollie. The matter was referred to Attorney General Máire Whelan, who advised the coroner, through the Department of Justice, that Mollie's death could lawfully be declared a stillbirth.
About 500 babies in Ireland die every year around the time of birth.
Previously, stillbirths were not recognised by the State: without a birth certificate, no death certificate could be issued.
However, since 1995, parents have been able to register their unborn's birth in accordance with international definitions of stillbirth. Namely, if the unborn weighed at least 500 grammes or had a gestational age of at least 24 weeks. Medical experts say "absolute chaos" would ensue if we start meddling with the definition of stillborn.
The chronic failure to clarify the legal status of the unborn has been a divisive issue since the introduction, in 1983, of Article 40.3.3.
The provision protects the equal rights to life of mother and the unborn - but the unborn was never defined.
A legal definition finally emerged after 30 years with the passing of the Protection of Life During Pregnancy Act.
The 2013 law says the "unborn" is a reference to such a life during the period of time commencing after implantation in the womb of a woman and ending on the complete emergence of the life from the body of the woman. However, the Government has steadfastly avoided the nuclear issues of viability and personhood, so we have no real clarity on when the rights of the unborn are engaged and what protection is afforded to them when they do.
Mr Enright's challenge may have implications beyond the stillborn register.
What if a pregnant woman is an alcoholic or a drug addict and poses harm to her unborn? If a pregnant woman is killed, is her killer guilty of feticide as well as homicide?
Once again the courts are being asked to step in where legislators have refused to act.
The Eighth Amendment was introduced over perceived fears that activist judges would overstep the mark. In reality, we've absolved all responsibility to the judiciary.