Tuesday 20 February 2018

Home birth mother fears she could lose home if she appeals to Supreme Court

Aja Teehan who lost her High Court case but won't have to pay costs
Aja Teehan who lost her High Court case but won't have to pay costs

Dearbhail McDonald Legal Editor

A heavily pregnant woman who lost her landmark High Court bid challenging the HSE's strict policy on home births, fears she could lose her home if she mounts a Supreme Court appeal.

University lecturer Aja Teehan, whose second child is due on October 13th next, challenged what she claimed is the HSE's "blanket policy" of refusing to cover home births for women with previous caesarean section births.

This morning (FRI) High Court Judge Ms Justice Iseult O'Malley rejected her action.

Speaking after the ruling, Ms Teehan told supporters, who cheered as she left the High Court, that she was proud of what she achieved.

Ms Teehan previously gave birth to a baby girl in 2007 and was ruled ineligible for a home birth as the HSE does not cover home births where women have had prior caesarean sections.

"If we go to the Supreme Court it is going to double our costs," said Ms Teehan. "At the end of the day, it is our family who have to bear that (cost), unless we hear from the community so we don't have to lose our home".

The State does not provide indemnity for self-employed community midwives (SECMs) assisting home births for women who fall outside the HSE's risk criteria which included prior caesarean sections.

"As I see it, the issue of insurance is at the heart of the problem," said Judge O'Malley.

The judge said that once insurance is accepted as a factor, it follows that if a particular service is to be provided, "someone must be prepared to bear the potential liability".

"The HSE is entitled, having regard to the potential consequences of uterine rupture, to provide maternity services in such a way as to minimise the risk of its occurrence, even if that risk is small", said Judge O'Malley.

Ms Teehan and her husband Charles Brand were not seeking orders compelling the HSE to provide her with a home birth.

Instead, they claimed the HSE applied a "blanket policy" without assessing her individual suitability. But Judge O'Malley said that their case could be distinguished from previous ones alleging "blanket policies".

In a 22 page ruling, Judge O'Malley said that the Supreme Court had already ruled that there is no statutory obligation on the HSE to provide for a home birth service, but could provide for home births in the exercise of its discretion if it was appropriate to do so.

Judge O'Malley said that it was not possible to find the policy adopted by the HSE - which does not cover home births where women have had prior caesarean sections - unreasonable.

This morning (FRI) a 30 strong "rally for unity" was held outside the Four Courts before Judge O'Malley delivered her ruling.

A small number of mothers who attended the High Court in support of the couple cried after the landmark claim was rejected. Ms Teehan  and her husband Charles Brand were twice refused entry to the home birth scheme this year.

Their daughter was born by caesarean section in 2007 and, as a scar is present on her uterus as a result of the surgery, she was in eligible for a home birth for her second pregnancy.

Ms Teehan sought court orders quashing the refusal of the HSE in May and June for her application for a home birth.

The HSE defended its policy. Barrister Paul Anthony McDermott, for the HSE, told the High Court on July 31st last that the agency had "not plucked the policy out of thin air" but had followed the practice in other countries.

Mr McDermott said that the policy was rational and based on medical evidence. But Ms Teehan's legal team, who denied she was trying to be "some kind of martyr" said the lecturer was trying to minimise the risk to herself.

Ms Teehan claimed the HSE has unlawfully refused to consider the merits of her application in that it is applying a blanket policy festering

it's discretion. Ms Teehan further claimed that the HSE' s refusal breaches her rights under the Constitution and the European Court of Human Rights.

Online Editors

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