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Dearbhail McDonald: Failure of case was inevitable in this desperate human tragedy

THE rejection of MS sufferer Marie Fleming's landmark challenge was as inevitable as it was a desperate human tragedy.

Had the Supreme Court created a new right to take one's life, or one allowing third parties to help others to do so, it would have provoked a constitutional crisis and accusations of an activist judiciary usurping the legislative branches of Government.

Suicide, which in the past resulted in denial of Christian burial to those who carried out "self murder", was a crime in Ireland until 1993.

When it decriminalised suicide, the Oireachtas created a new specific offence that made assisted suicide a crime, punishable by up to 14 years in prison.

But the Supreme Court ruled that the fact that suicide was decriminalised did not create a constitutional right to end one's life.

A full seven-judge court issued a unanimous ruling in which it stated that there was no explicit right to commit suicide or to determine the time of one's death in the Constitution nor was there a right for a limited class of people such as Ms Fleming.

It is not the first time that the Supreme Court has been confronted with end-of-life issues. In 1995, it ruled, in a case involving a woman who had been in a near-persistent vegetative state for more than 23 years – with no hope of recovery – that the right to life included the right to die a dignified, natural death, in that case by allowing artificial feeding and antibiotics to be withdrawn.

But the court was adamant that it could never sanction steps to terminate life.

The 1995 Ward of Court case is very different to Ms Fleming's as it was not about euthanasia or assisted dying.

But, like Ms Fleming, it raised profound issues relating to personal autonomy, quality of life and dignity in death.

In its extensive ruling, the Supreme Court noted that the Oireachtas had already assessed the complex issue of assisted suicide in the 1993 Criminal Law (Suicide) Act.

It also stated that while the 1993 law called for a careful assessment of what are complex social and moral questions, it was the legislature, not the judiciary, that was uniquely well placed to carry out that assessment.

The failure of the Oireachtas to confront difficult social and moral questions is well established – just look at the convulsions surrounding the abortion debate, a 20-year controversy borne out of the failure of the Oireachtas to give legal effect to the 1983 right-to-life amendment.

The inexcusable failure of successive governments to legislate led to the X Case and a drubbing, in 2010, by the European Court of Human Rights, which told the State to give legal effect to the limited right to legal abortion it had created by its own inertia.

The recent debates about surrogacy and parenthood, erroneously portrayed as a same-sex marriage issue, are also examples of our failure to confront complex social and moral issues.

Refusing Ms Fleming a right to die with the help of her partner Tom Curran, the Supreme Court left the door open to the Government to legislate for cases such as Ms Fleming's.

But the prospects of a mature debate around end-of-life issues are – if the abortion and parenthood rows are anything to go by – negligible any time in the near future.

The best Ms Fleming can hope for is that the authorities would view with sympathy any potential mercy killing carried out by those who love her so much they would help her die to end her suffering.

Irish Independent