LEGISLATION can be designed to facilitate a terminally ill woman who is seeking the right to assisted suicide, the Supreme Court has heard.
A lawyer for multiple sclerosis (MS) sufferer Marie Fleming (59) argued that she was being adversely affected in order to create a benchmark with a view to preventing others from breaking the law.
Ms Fleming, a former academic, wants to be allowed die at home when she chooses, in the arms of her long-term partner Tom Curran, without him facing the threat of jail.
Brian Murray, her senior counsel, told seven judges hearing her appeal in the Supreme Court in Dublin that his client was being denied what she seeks for fear that without an absolute ban on assisted suicide there could be more relaxed practices by doctors.
He said: "It is our position that it is possible to design legislation that facilitates the plaintiff in a way that does not present any risk of the involuntary death of others."
Mr Murray said while it may be legitimate government policy to discourage people from choosing death over life, this was not a proper basis for telling people what decision they could make about their lives.
Without proof of actual risk to others, he argued, there was insufficient justification for impairing the constitutional rights of Ms Fleming.
While there were concerns to avoid circumstances in which persons who are not acting of their own free will, or are not competent, are induced to do something they would otherwise do, there is a class of persons who should be entitled to execute their decision, he argued.
"The fact that other people might break the law and cause involuntarily deaths is not in itself good constitutional justification," Mr Murray told the court.
Ms Fleming, who can only move her head, lives in constant pain, cannot swallow and suffers choking sessions which she fears will eventually kill her, giving her a humiliating and painful death.
In her case against Ireland, the Attorney General and the Director of Public Prosecutions (DPP), the mother of two claims that section 2.2 of the Criminal Law (Suicide) Act – which renders it an offence to aide, abet, counsel or procure the suicide of another – is unconstitutional in that it breaches her personal-autonomy rights under the Constitution and the European Convention on Human Rights.
Ms Fleming, from Co Wicklow, is not asking for someone to kill her, but for assistance to be given her in putting a mask to her face or fitting a cannula in her arm, which she would activate by shaking her head or blowing.
The court was told on Tuesday that she had expressed regret at not ending her life when she was able-bodied.
The appeal was fast-tracked through the legal system after three judges at the High Court in Dublin ruled last month against any relaxation of the absolute ban amid fears that to do so could put other vulnerable people at risk.