This morning three members of the High Court are hearing an application from the parents of a woman in her mid-20s who, following a brain trauma, lies clinically dead in a midlands hospital and whose doctors have declined to turn off life support as she is pregnant. For these doctors (and, it now emerges, two other sets of doctors in recent years) there is simply no certainty as to whether they are permitted to turn off life support given the right to life of the foetus. This case highlights the extent to which the 8th Amendment permeates all medical decision-making relating to the care of pregnant women.
By granting a constitutionally protected right to life to the unborn foetus, the Constitution has embedded a ‘two patient’ approach that, where the pregnant woman is effectively deceased but the foetus is not, inevitably morphs into a ‘one patient’ approach. This one patient, however, is dependent for life on the body of the deceased woman and thus questions of difficult and harrowing proportions arise.
At issue, in this case, is not a classical Article 40.3.3 ‘competition’ of the right to life of the pregnant woman versus the right to life of the foetus. Sadly, without constant intervention, the pregnant woman in this case cannot and will not continue to breath. Rather, the primary conflict of rights is between the pregnant woman’s right to die a natural death (recognised in Re A Ward of Court (No 2)), privacy and bodily integrity on the one hand, and the right to life of the unborn foetus on the other.
In that same case, Denham J. (as she then was) characterised the right to life as the pre-eminent personal right, but of course this does not mean that it always and inevitably acts as an absolute trump. Rather, the Court must decide whether sustaining the pregnant woman’s lie artificially is ‘practicable’; after all, what Article 40.3.3 provides is that the state “guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right” (emphasis added). One important question for the High Court today, then, will be whether or not sustaining life for the amount of time required to vindicate the right to life of the foetus is practicable. In this respect, medical evidence as to the point at which delivery would be safe will be important. Whether or not the Court takes into account the statistical likelihood of survival and statistical likelihood of severe disability to help to determine the point of appropriate intervention (barring any medical emergencies in the meantime) will be especially interesting, but these certainly seem to me to be important elements in determining practicability.
Questions of proportionality are also likely to arise and to be influenced by these considerations as to medical practice. Even if the right to life is a pre-eminient right, the Court will surely ask whether the interferences with the woman’s constitutional rights in order to vindicate the foetal right to life are proportionate. The question of proportionality will come down, in all likelihood, to a determination of the extent of the interference which implicates matters of how long her life will have to be sustained considered by reference to the likelihood of optimal health outcomes for the foetus.
In short, the High Court today (and, perhaps, the Supreme Court on appeal tomorrow) will have to make a decision as to just how long a hand the 8th Amendment reaches into medical care in this country. It is clear that this is not a case that is governed by the Protection of Life During Pregnancy Act 2013. That Act deals only with situations in which there is a risk to the life of a pregnant woman that might be averted through abortion. This is clearly not such a case. However, the 8th Amendment is far broader than abortion, whatever its original intended reach might have been. The fact that medical professionals have felt utterly unable to make a medical decision to cease life support, with the support of the patient’s family, because of the legal uncertainty that surrounds the life of a foetus which is at such an early point of gestation as to be far from viable sharply illustrates the consequences of having constitutionalised the ban of abortion through the use of such far-reaching language.
On this blog Máiréad Enright has previously cautioned against describing cases arising under the 8th Amendment as tragic. In her words,
‘Tragedy’ is often a word we use to signal detachment, from exceptional and rare suffering brought about by fate – events that we can only gawp at from a distance. But this particular set of circumstances is, in an important sense, the product of a constitutional amendment which was never fit even for its proponents’ purpose, and which has been punishing women for far too long.
This case is difficult. It is sad. It is harrowing. But it is not a tragedy. It is a product of a constitutional amendment that is unsustainable, unliveable and in urgent need of repeal.