Sunday 8 December 2019

Another maternal death highlights ambiguous status of the unborn

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Dearbhail McDonald

Dearbhail McDonald

When does an unborn attract personhood? Do criminal laws such as homicide or assault only apply to those "born alive" or does an unborn become a separate legal person from implantation or viability?

These are complex questions that are not solely related to abortion.

What about cloning and stem-cell research? What if a pregnant woman smokes, is a substance abuser or needs chemotherapy - all of which might harm the unborn?

Yesterday, another unborn permutation emerged during an inquest into the deaths of two people in a road crash, one of whom was pregnant. Coroner Paul Morris says he is prepared to rule that three people - two adults and the unborn - died in the collision. But can he certify a third death if the unborn was never born?

The expectant woman was 34 weeks pregnant when she and a man died following a head-on collision.

Mr Morris says that the case raises serious issues as to whether "the unborn child" should be assigned a certain status. He has read a lot of material relating to the registration of the term "birth", saying the issues focus on the ability to prove that someone must have been born before a death certificate can be issued. This is a critical issue.

Around 500 babies in Ireland die every year around the time of birth. Previously, these tragedies were not recognised by the State: without a birth certificate, no death certificate could issue. However, since 1995, parents have been able to register their unborn's birth, which can only be registered if the unborn weighed at least 500 grammes or had a gestational age of at least 24 weeks.

The stillborn register is an important way for the families and the State to acknowledge these deaths in utero.

But they are not death certificates.

Yesterday Mr Morris said that issues also arise as to how "the unborn child" is defined in an autopsy without being separated from the mother as he bemoaned the failure of the State to rule or clarify points of law relating to many queries raised by coroners.

The chronic failure to clarify the legal status of the unborn has been a divisive issue since the introduction, in 1983, of the Eighth Amendment.

Article 40.3.3 of the Constitution obliges the State to give due regard to the equal rights to life of mother and the unborn, as far as practicable.

But it never defined the unborn.

Many legal experts warned of the dangers of giving constitutional protection to the unborn without clarifying its meaning and effect.

A legal definition finally emerged 30 years later when the Government passed the 2013 Protection of Life During Pregnancy Act.

That law now states that the "unborn", in relation to a human life, is a reference to such a life during the period of time commencing after implantation in the womb of a woman and ending on the complete emergence of the life from the body of the woman. But you won't find the word 'viability' in that law as the Government steadfastly avoided this nuclear issue.

So we still have no real legal clarity on when the rights of the unborn are engaged and what protection is afforded to them when they do.

Once again, it has taken the tragic death of an expectant mother to shine a light on this failure.

Irish Independent

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