THE President of the High Court said that it doesn’t seem that the tragic case of a brain dead woman in the early stages of pregnancy is an abortion case “at all”.
Mr Justice Nicholas Kearns, leading a specially convened three judge Divisional Court, has been asked by the woman’s family for legal permission to withdraw life support from the woman who was declared dead three weeks ago.
The young mother of two, a practising Roman Catholic who had selected baby names with her partner, is on life support because doctors treating her were unsure about the legal position of her unborn, currently at 18 weeks gestation, under the Constitution.
Judge Kearns told Senior Counsel Mary O’Toole, for the woman’s family, that it did not appear to the court that this case “is an abortion case at all”.
Ms O’Toole agreed with Judge Kearns, presiding with Ms Justice Marie Baker and Ms Justice Caroline Costello, and said both the woman and her unborn would be dead were it not for medical intervention.
The court will give its ruling on St Stephen’s Day and the Supreme Court is on standby in the event of an appeal.
Ms O’Toole argued the evidence from the medical witnesses went a lot further than saying there does not seem to be a reasonable prospect of survival.
The evidence was it seemed highly probable that this unborn would not survive, said Ms O’Toole, adding that in those circumstances, the eighth amendment was not engaged.
Judge Kearns told the court that this was “a very fact specific case” involving a pregnancy of early gestation.
In its legal submissions, the Health Services Executive told the court that doctors must be reassured that they can trust their clinical judgment and their views about the best interests of their patients. The HSE supports withdrawal of life support in the particular circumstances of the case and said clinicians treating the brain dead woman felt constrained by a lack of clarity.
Senior Counsel Gerry Durcan, for the HSE, told the court court that the right to life of the unborn in the Eighth Amendment to the Constitution was “undoubtedly engaged” in the case of the young mother of two who was declared brain dead on December 3 last.
But he said that it was the agency’s view that the appropriate remedy is a permissive declaration stating that the discontinuance of somatic support to the woman is lawful. This would allow doctors to exercise their clinical judgment in the best interests of the unborn, said Mr Durcan.
“They (the doctors) wanted to do the best for the mother, they wanted to do the best for the unborn,” said Mr Durcan, adding the clinicians treating the brain dead woman felt constrained by a lack of clarity.
Ms O’Toole argued the evidence from the medical witnesses went a lot further than saying there does not seem to be a reasonable prospect of survival. The evidence was it seemed highly probable that this unborn would not survive. In those circumstances, the eighth amendment was not engaged, said Ms O’Toole.
Judge Kearns told the court that this was “a very fact specific case” involving a preganancy of early gestation.
Ms O’Toole described the events leading up to her being declared dead as “an act of God” in circumstances where she had suffered the dreadful catastrophe of brain injury. She said the family’s interests also had to be recognised as a matter of human decency and understanding.
The father had not only suffered the nightmare of his child pre-deceasing him, he had to watch her deteriorating in what was “akin to a horror movie”.
Warning the court that members of the family may find aspects of his legal argument upsetting, Senior Counsel Conor Dignam - for the unborn - said the constitution requires that the right to life of the unborn must be vindicated as far as possible and that right surpasses the right of the clinically dead pregnant woman to a dignified death.
Mr Dignam said that the rights of the unborn were engaged notwithstanding the fact that this was not an abortion case. He told the court that this type of case was not contemplated at the time the Eighth Amendment was inserted into the Constitution.
Mr Dignam said the legal test of “reasonable prospect” for survival of the unborn, as advocated by the HSE, was not appropriate here, adding that the issue for the court to decide was whether there was a real possibility of survival of this unborn.
Senior Counsel Cormac Corrigan, representing the mother’s interests, said the court had to accept the woman was not going to recover.
Mr Corrigan said he was not conceding she was dead but he submitted the court did not have to decide if she was dead on December 3 last. There was evidence she may have been brain stem dead prior to that date.
There was a very grey area relating to legal death but the court did not have to address that issue and should not, he submitted.
Mr Corrigan said there is sufficient evidence from which the court can infer what the woman’s wishes would be in this situation.
There was no direct evidence but there was secondary or indirect evidence including she was very proud of her children and had posted a scan of her unborn on her Facebook page.