Sunday 21 July 2019

Only political leadership can secure an alternative to distressing court battles

The Four Courts, scene of the latest constitutional drama.
The Four Courts, scene of the latest constitutional drama.
Dearbhail McDonald

Dearbhail McDonald

The phrase 'GUBU Years' was coined by the late Conor Cruise O'Brien to describe a particularly colourful period in Irish politics under the leadership of former Taoiseach Charles Haughey.

That was 1982, a year before the 'right to life' referendum which gave birth to the Eighth Amendment, which obliges the State to give due regard to the equal rights to life of mother and unborn "as far as is practicable".

The full grotesqueness of a 31-year political failure to clarify the scope of the constitutional protection of the unborn was laid bare yesterday in the High Court as the family of a dead woman begged three judges to allow her life support to be withdrawn.

All doors lead to Leinster House: this is our new GUBU.

The woman, in her mid-20s, was declared clinically dead 21 days ago, but she has been on life support ever since as a legal battle loomed over the fate of her unborn. Expert after medical expert stepped in to the witness box yesterday to tell the Divisional Court that the young mother-of-two, who is 18 weeks' pregnant and being kept alive because of uncertainty over the legal status of the unborn, is dead.

The court heard there is no prospect of survival for the unborn, even if life support is to be continued. One obstetrician treating the woman broke down in tears as he spoke of "a little girl with painted nails" who is nonetheless "fully dead".

Another intensive care expert evoked images of a victim washed up after a tsunami as he described her body as one that is no longer able to maintain body tone, saying that it was like being in a room with a dead person.

Another expert warned the court that her evidence would be upsetting as she described how the woman bore no resemblance to how she used to look, her dead brain liquefying as doctors treat an open wound on her head, her body temperature reaching dangerous heights for her unborn. The woman's bowels have to be stimulated, she needs to be turned regularly to avoid pressure sores and she has a tracheotomy, the court heard.

Her two young children visited her on Monday evening, but only after make-up had been applied to this living corpse to prevent further distress to her offspring, who have been told that their mammy is sick and being looked after by the nurses until the angels appear.

It did not succeed: the doctor said the woman's daughter was very distressed by the visit. Distress was etched across all of Courtroom Number 4, with family members and others routinely breaking down in tears. The father of the woman clasped his hands and rocked gently as he described his daughter's final days and hours. Her partner, the father of the unborn, spoke of their joy at the pregnancy - they had chosen a boy's and a girl's name.

The father of the unborn spent the day-long hearing wiping tears from his bloodshot eyes.

The tears in Courtroom 4 were transformed into a barely concealed anger when two of the country's pre-eminent obstetricians outlined the prognosis for the unborn.

Dr Peter McKenna, the former Master and current clinical director of the Rotunda Maternity Hospital, said that the maintenance of somatic life support would be "going from the extreme to the grotesque".

"I can see we are where we are, but I don't think that is a justification for continuing any further," said Dr McKenna, adding that he was firmly of the view that the appropriate course of action was not to continue life support.

Obstetrician Dr Peter Boylan, who also reviewed the case, was asked by High Court President Mr Justice Nicholas Kearns if medical guidelines would assist in such situations, only for the doctor to reply that it would be "even more helpful" if the Eighth Amendment was repealed. Dr Boylan said that doctors are unclear about what to do because of the Eighth Amendment and are correct to seek legal advice. In any other country, he said, the woman would be allowed to die with dignity.

"Just because something in medicine can be done doesn't mean that it should be done," said Dr Boylan, adding that there was a distinction between abortion and what was proposed in this instance, namely the withdrawal of support for a brain-dead woman.

Critically, a consultant neurosurgeon who treated the woman described how he actively sought legal advice from two days before the woman was declared dead because of the uncertain legal status of the unborn.

None was forthcoming.

That consultant spoke of being in a room with two colleagues "trying to figure out the Eighth Amendment". He spoke of having to tell the family, who were crying out for legal guidance, that he had none and to get their own. This is what it has come to - leaving our women, their families and their doctors at sea, making them keep a macabre vigil over the living dead because of the uncertain legal status of the unborn.

Yesterday we learned much about the 'V' word politicians cannot bring themselves to discuss - viability. We heard from several of our leading clinicians that 24 weeks is the minimum desired threshold for viability - with 28 weeks considered more ideal. The reality of our laws relating to the unborn were not debated yesterday in a binary fashion by opposing theologists, or pro-life/pro-choice campaigners.

This reality was presented by the woman's family, by our doctors on the frontline of an intractable abortion war. This war must end and only political leadership can secure an alternative to distressing court battles. The family and doctors have had their say. Today we will hear legal submissions from the parties: the HSE has already said that it believes the appropriate declaration by the court was for the discontinuance of life support and that this was lawful in the circumstances.

The undisputed medical fact that the woman is dead and the small chances of the foetus being born alive and intact may be influential factors. Whatever the solution - the High Court will rule on St Stephen's Day and the Supreme Court is on standby for any appeal - politicians simply cannot ignore these pleas for legal clarity by doctors and families about the status of the unborn.

Irish Independent

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