Saturday 19 January 2019

It is sadly inevitable that further tragic cases will end up in the High Court

In the end, the medical evidence made the decision fairly straightforward.
In the end, the medical evidence made the decision fairly straightforward.

Dr Conor O’Mahony

Yesterday’s High Court ruling that a clinically brain dead pregnant woman did not have to be kept on life support to sustain her unborn child was unquestionably correct.

The medical evidence unanimously indicated that the chances of survival for the unborn were almost non-existent. In such circumstances, it made no sense to subject the mother and her family to up to 18 weeks of unspeakable torment. The terms of our Constitution do not contemplate medical interventions of this sort.

When news of the case first broke last week, it seemed like the court would be called upon to exercise the wisdom of Solomon. The mother had a constitutional right to die a natural death, without having her life artificially prolonged; but the unborn child had a constitutional right to life. How could those two rights be reconciled, and on what basis could priority be given to either?

In the end, the medical evidence made the decision fairly straightforward. All of the doctors who testified were in agreement that the unborn had little or no chance of survival. It was not even that there was a chance of being born with impairment; it was that there was little chance of being born alive. The Constitution only requires unborn life to be defended “as far as practicable”, so it was not difficult for the court to decide that the circumstances of this case went far beyond that duty.

However, the outcome of this case hinged entirely on its own particular facts. The decision was straightforward because brain death had occurred at a relatively early stage of the pregnancy (approximately 14 weeks). If circumstances had been different, and the mother’s brain injuries had occurred five or six weeks later, the case would have been every bit as difficult as it had first appeared.

Perhaps the most important thing to take from the decision is the potential for similar and perhaps even more challenging tragedies to end up in the High Court in the future. The Court made it clear that the terms of the Eighth Amendment have application outside of the narrow context of abortion cases. The Constitution requires the State to defend and vindicate the right to life of the unborn, and this duty is not limited to banning abortion; if it applied in this case, it could be relevant in other circumstances also. Experience now shows us that it is only a matter of time before relevant cases present themselves.

The judgment also clarified that when a pregnant woman suffers brain death, the rights of an unborn child who is still alive “must prevail over the feelings of grief and respect for a mother who is no longer living” – the key question is “how far the court should go in terms of trying to vindicate that right in the particular circumstances which arise”. In other words, future cases where pregnant women suffer brain death may (and probably will) require a court to resolve whether it is lawful to withdraw life support. In a case where the foetus is potentially viable, it is possible that a court may rule against withdrawing treatment in order to vindicate the right to life of the unborn.

This was not what was intended when the Eighth Amendment was approved by the electorate in 1983. Of course, different people will have voted Yes for different reasons, but no one seriously disputes that the primary purpose of the provision was to preclude the legalisation of abortion. Even prominent pro-life advocates have expressed the view that there was no moral objection to the withdrawal of treatment in the present case. However, yesterday’s judgment leaves no doubt that the sweeping terms of the Eighth Amendment, which refers broadly to the right to life of the unborn and makes no mention of abortion, will continue to encroach on various areas of medical and legal practice, possibly leading to outcomes that very few would defend.

This is not about conservative vs liberal or pro-life vs pro-choice politics. The Eighth Amendment is overbroad. It has been conclusively proven to be bad law, and this case, and the weeks of anguish endured by the family involved, should be the last that we see. Even if you don’t support a liberal abortion regime (and for the record, I do not), the question is no longer whether the Eighth Amendment should be repealed; it is what it should be replaced with. Every political party has a responsibility of the highest order to face up to this challenge.

Dr Conor O’Mahony is a senior lecturer in Constitutional Law  at University College Cork.

Twitter: @ConorUCCLaw

Irish Independent

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