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Emer O'Kelly : Judges must now decide whether or not our Constitution allows for compassion

A man called Brian Murray said during the week that "the State cannot criminalise private behaviour because it doesn't like it", a quiet, level-headed statement.

Not surprising, because Brian Murray is a senior counsel, and he said it in the High Court. But behind it lies a depth of soul-destroying misery that each of us can only hope we will never personally have to face, as we contemplate in horror what Mr Murray's client is enduring.

We have been criminalising private behaviours for generations in this country, even right through the 20th Century and into the 21st. We policed the bedrooms of married couples, forcing them into cold celibacy if they could not cope with more children.

Less than a generation ago we were still criminalising homosexual acts, even bet-ween consenting adults in private. It needed the courage of one man (David Norris), who took the matter to the heart of Europe before we were forced out of that particular Dark Age.

Those measures were defended virulently in their day as giving legal force to the "natural law". The natural law is the term used by Creationists, usually Christians of the Roman Catholic persuasion, to justify a brutal moral code which cannot be defended by rational thought, by scientific knowledge, or even in defence of an ethical society.

As recently as 1993, we passed a law – Section 2.2 of the Criminal Law (Insanity) Act – which provides for a jail sentence of up to 14 years for those who assist in or help procure the suicide of another.

In 1995, the family of a woman who had been vegetative and on a life support system for a quarter of a century went to court to get permission, not to take an action to end her life by artificial means, but to end the artificial life provided by a machine. The hospice in which the woman's body was kept, owned and run by the Sisters of Charity, brought an action in defence of life, to prevent this happening. The Supreme Court found that, according to the Constitution, there was indeed a right to die in Ireland: the right to die a natural death. There seems to be neither logic nor consistency in that Oireachtas decision. Or were the legislators themselves confused as to the Constitutional provisions?

Now another deeply vulnerable Irish citizen has begun a legal battle to be given what many people would see as a natural right. Hideously crippled and disabled by multiple sclerosis, and in continuous agonising pain from it, Marie Fleming wants to take her own life : "commit suicide" in the old parlance from the time when that was a crime.

If she could do it, she would. But her physical condition has taken her past the situation where she can. Ms Fleming is helpless. She can neither walk nor stand. Her hands are encased in splinted gloves because they are useless. She is losing the power of speech. She is only 58 – an age when most of us can look forward to another 25 years of active and fulfilled life. But her future is the prospect of choking horribly to death.

She is lucky enough to have a wonderful man in her life, her partner Tom Curran, who loves her enough to want to help her. Her adult children love her enough to want to let her go. If the High Court decides that it can be permitted, they will be with her and she will be in Tom's arms when she takes her last breath.

Three judges of the High Court are sitting together to interpret the Constitution as to whether Ms Fleming may legally be assisted to die. The case, apparently, rests on a number of issues including Ms Fleming's right to have her bodily integrity considered; that body wracked with pain and disintegration 24 hours a day, every day; a body that has become a prison. The three judges faced with this almost inconceivably dreadful case are the President of the High Court Mr Justice Nicholas Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan. Their names are familiar to anyone who follows public events in this country; we've often heard reports of their pronouncements from the Bench.

Now they must pronounce on Ms Fleming's fate: whether she can be allowed the peace of dignity in death, or whether the Constitution, as is being argued in court by Ireland, the Attorney General, and the Director of Public Prosecutions, will be interpreted as maintaining an absolute ban on assisted suicide in the face of the wishes of a terminally ill person in dreadful physical and mental suffering, who is in full possession of their mental faculties, and would end their lives by their own hand if they had the physical capacity.

The State is arguing the case that such a judgment, even in the narrowest of circumstances, could open the floodgates, even lead to euthanasia becoming a practice. Paul O'Higgins SC, representing the DPP, has argued in court that even issuing guidelines on criminal liability in assisted suicide could result in the creation of a template to commit a crime.

Euthanasia is a frightening term and thought: it conjures up for most people of any kind of human awareness the early days of Nazi Germany, when extermination of the "impure" such as mentally or physically handicapped people was given that name. No sane person would countenance such vileness, or regard it with anything other than horror.

But it has not become the practice in the four countries in Europe, which do permit assisted suicide. They have all been able to make laws that have protected vulnerable people. (For once, Ireland is not isolated among civilised nations: sadly, we are among the majority of European countries in refusing to make laws for very restricted cases where assisted suicide could be made possible.)

There are two broad categories in attitudes towards suicide, assisted or otherwise. Either you believe that it is an unforgivable crime of cowardice and despair; (the Catholic Church regards it as the ultimate sin, a rejection of God's love, and until recently refused to bury suicides in consecrated ground, though nowadays it keeps fairly quiet about its solemn teaching that a suicide is damned forever to hell. But that is the teaching). Or you believe that it is an act, sometimes a foolish and unnecessary act, often selfish, but one of great courage, and ultimately the final civil right. (And no, I am not writing of the self-absorbed, tragic confusion that motivates teenage suicide.)

But now those three learned judges are faced with a solemn task of finding whether our Constitution allows for compassion; or whether, as so often in the past, it is found wanting in human terms.

We can only hope the supposedly merciful god to whom our founding fathers piously dedicated our country, its constitution, laws and people will be found to have inspired the founders to write a Constitution that can be interpreted to allow Ms Fleming to die without gasping for mercy and an end to her agony.

And when Ms Fleming's inspiring, dignified presence is gone, may whatever god he believes in, if any, give comfort and strength to Tom Curran, the lover who unselfishly and courageously wants to help her out of her pain.

Sunday Independent