Husband challenges State as his unborn child dies in crash
Landmark case could force declaration on when an unborn foetus is considered a person
Published 05/02/2016 | 02:30
The husband of a pregnant woman who died in a road traffic accident is challenging the State for damages for breach of the constitutional rights of their unborn child.
It is a landmark case that could force the State to declare when the unborn foetus attracts personhood.
Patrick Enright's wife Mary Enright died in a car crash following a head-on collision with a car driven by Cork schoolboy Robert Stoker (17).
Mr Enright is suing Social Protection Minister Joan Burton, Ireland and the Attorney General for breach of the constitutional rights of Mollie, the name of their unborn child.
Mary Enright (28) died instantly when the car she was driving was involved in a head-on collision with a car being driven by Mr Stoker - who also died in the March 2012 road traffic accident outside Bansha, Co Tipperary.
Mr Enright, who suffered personal injuries in the collision, is seeking a series of High Court declarations including a declaration that Mollie was an "unborn" within the meaning of Article 40.3.3 of the Constitution, the pro-life amendment which gives equal constitutional rights to an expectant woman and her unborn.
Ms Enright's family want Mollie's death registered as a road traffic death. But it is not possible to issue a death certificate without a birth certificate in accordance with the "born alive" principle which holds that various civil and criminal laws such as succession and dangerous driving can only apply to a child that is born alive.
As Mollie died in utero as the result of her mother's death, her death is considered by medical and legal experts a stillbirth.
However, Mr Enright wants declarations that the definition of "stillborn child" and "stillbirth" in the 2004 act is repugnant to six separate provisions of the Constitution, including the Eighth Amendment.
Since 1995, all stillborn deaths can be registered by grieving parents. The Civil Registration Act 2004 defines a stillborn child as a child who at birth weighs not less than 500 grammes or has a gestational age of not less than 24 weeks and shows no sign of life.
The Irish Independent has learned that the Office of the Attorney General was consulted after Tánaiste and Social Protection Minister Joan Burton met last year with Ms Enright's family, who sought to have Mollie's death registered as a Road Traffic Accident (RTA) death.
The Department of Justice, which has responsibility for the policy and governing legislation of the State's Coroner Service, subsequently wrote to the country's coroners to advise that the law requires a stillbirth certificate to be issued where a child dies in utero or is born without showing any signs of life.
It also reassured the coroner dealing with Ms Enright's tragic death that he could lawfully issue a stillborn certificate in respect of her unborn child. However, Ms Enright's family asked coroner Paul Morris not to issue such a certificate pending the outcome of their constitutional challenge.
The Coroners Society of Ireland, which held its annual meeting in Portlaoise last Saturday, said Mr Enright's legal challenge "raised matters to be clarified on the issues of birth, death and the unborn".
However, medical experts have warned of "absolute chaos" if the internationally recognised definition of a stillborn death is meddled with.
"The definitions are very clear," said Dr Peter Boylan, the former Master of the National Maternity Hospital, Holles Street. "A stillborn baby is one who shows no signs of life at all. You would cause absolute chaos if you start meddling with that definition. We must have a consistent, internationally recognised definition."
Dr Boylan said that any baby born dead is a stillborn as is the unborn who dies in the womb - unless it survives a post mortem caesarean section carried out on the dead woman.
Last week, a jury of four men and two women returned verdicts in accordance with the recommendation of coroner Paul Morris that Mary Enright and Robert Stoker had died as a result of multi-traumatic injuries received in a road collision.
They also agreed that Mollie had died at University Hospital Waterford due to a lack of oxygen following her mother's death.
The jurors were told that to disregard a "clinically spurious" and "impossible" toxicology report which showed that the teenager was 40 times over the legal drink driving limit.
Before witnesses started giving their evidence, the coroner told the inquest he had read a lot of material relating to the registration of the term "birth". He said the issues focus on the ability to prove that someone must have been born before a death certificate can be issued.
He added that issues also arise as to how "the unborn child" is defined in a post-mortem without being separated from the mother. Mr Morris said that it was his understanding in this case the unborn child was "born" and that it would be within his jurisdiction to assign the status on her that she had therefore died.
Solicitor Pat O'Connor, Coroner for Mayo East and public information officer for the Coroners Society of Ireland, said there were issues to be resolved - as the manner in which an unborn death is certified as it can affect matters including inheritance, succession and any claims brought by dependants of the [adult] deceased.
"If the child is not born, the present law says the unborn death must be registered as a stillborn death," said Mr O'Connor.
"However, if the unborn is born alive, even if only for a matter of minutes or even seconds, namely if there is any life at all, then a birth certificate can be issued allowing for the death to be registered".
The Department of Social Protection said that other than the stillborn register which issues birth certificates for unborns, the department and the General Register Office does not register life events or issue certificates of life events.
"This is the function of registrars employed by the HSE," said a spokesperson for Tánaiste and Social Protection Minister Joan Burton.
"How the event is registered will depend on what type of coroner's certificate is issued to the registrar by the coroner".
The minister's spokesperson said that "many of the fundamental issues" were for the Department of Justice and Equality which told the Irish Independent it "had no role here".