Temple Street v. D: High Court orders blood transfusion against parents' beliefs

On the early morning of December 27, 2010, the recently-appointed Hogan J ordered, following a brief hearing from his home, the administration of a blood transfusion to a three month-old baby, ‘AB’, against the wishes of his parents. As committed Jehovah’s Witnesses, they opposed the procedure on grounds of religious belief, but it was necessary to save the child’s life. In his judgment Hogan J considered the requirement of Article 34.1 of the Constitution that justice be administered in public “save in such special and limited cases as may be prescribed by law.” More significantly, perhaps, he also considered the scope and limits of the constitutional guarantee of freedom of conscience and religion (Article 44.2.1) as it applies to religiously-motivated parental conduct relating to the education and care of children. The extent to which constitutional freedom of religion may protect parental action or inaction deemed harmful in some respect to children is a rather under-explored area of Irish law. The better-beaten doctrinal path is the Article 42.5 test of “moral and physical” parental failure enabling the State to override the protection accorded to the Family by Articles 41 and 42 of the Constitution – a ground also considered, in conjunction with the religion ground, in this rather short judgment.

That freedom of religion does not extend to parents’ denial of life-saving medical treatment to children may seem rather unsurprising, given the obvious gravity and depth of the competing “interest” – life itself – at stake. We are accustomed to a consensual ethical stance according to which life itself is the most fundamental interest upon which the exercise of all other recognised rights is dependent and from which they flow. Yet the centrality of life as a legally-recognised interest throws up two interesting conundrums. First, from within the religious worldview of the parents, life itself is apparently not the primary interest and right, since the perpetuation of life in this way entails the grave violation of a divine, supra-human injunction. Thus, while such a metaphysical worldview might prevail and be respected in the case of a adult with capacity refusing life-saving medical treatment – over whatever prevailing view of the value of life might otherwise be imposed by society – the same does not apply in respect of a child, for whom the Courts, recognising his separate and independent moral interest in developing over a complete life, will substitute the more wordly, secular, disenchanted view of life itself as being the primary and foundational basis of all other rights and interests. Going beyond mere freedom of religion, such cases invoke the competing religious and metaphysical conceptions of life itself – questions which the secular law perhaps cannot evade. Nonetheless, Hogan J did not choose to frame the issue in terms of this being an eccentric and radical religious view too threatening to the social and constitutional order to accord any protection or recognition at all. In an interesting contast to the recent “Mass Cards” judgment of MacMenamin J (McNally v Ireland [2009] IEHC 573), Hogan J declined to consider the freedom of religion with reference to the doctrinal authenticity, or plausibility of the belief relied upon, simply noting the sincerity of the parents. The citizen’s religious freedom claim does not depend on validation by an external authority: “a secular court cannot possibly choose in matters of this kind …can the State be prescriptive as to what shall be orthodox or conventional in such matters” [para 29]. Instead, the claim was circumscribed merely by virtue of the effects of its exercise.

Secondly, Hogan J did not frame the issue in terms of conflicting constitutional rights to life (on the part of the child) and of freedom of religion (of the parents). Instead, while only briefly considering the religion ground – implicitly viewing this as bolstering the Article 41 “Family” authority of the parents – Hogan J decided the issue in the frame of the Article 42.5 test of whether “moral and physical” failure on the part of parents warrants protective State invasion in the Family unit – with regard to the “natural and imprescriptible rights of the child”. Rather than considering the nature and scope of the constitutional right to life – for example, is it even engaged by parental denial of medical treatment? – the judge framed the issue as the limitation imposed on parents’ “constitutional right to raise their children by reference to their own religious and philosophical views” by what he termed – rather strangely – as “[the State’s] vital interest in ensuring that children are protected, so that a new cohort of well-rounded, healthy and educated citizens can come to maturity and are thus given every opportunity to develop in life.” Thus, the issue was framed in terms of the balance between constitutional parental rights, whether rooted in Article 44 or Articles 41-42, and the State interest in defending the welfare – rather than the “rights” of children. The kernel of the judgment is that this “interest” prevails “even in the face of express and fundamental constitutional rights” in “exceptional” cases of parental “failure”, in a case “where the child’s life, general welfare and other vital interests are at stake” [see paras 35-36]. In a mundane lens, this is a somewhat unsurprising application of the notoriously conservative Article 42.5 test refined in the “PKU” case, North Western Health Board v. HW [2001] 3 I.R. 622, where the threshold for state intervention was stated by Murray J to require an

immediate and fundamental threat to the capacity of the child to continue to function as a human person, physically morally or socially, deriving from an exceptional dereliction of duty on the part of parents to justify such an intervention.” An interesting conundrum that Hogan J noted was that it was difficult to phrase the parents’ actions as a “failure”, given their “conscientious” basis in a religious conviction held in good faith – showing up, perhaps, the inconsistencies arising from a test for State intervention pivoting on the moral worthiness of parental conduct rather than purely upon the consequentialist impact of such conduct for children. What this case confirms, if anything, is that the “moral and physical failure” threshold test under Article 42.5 is not raised or altered or intensified in any way by the existence of religious beliefs, protected by Article 44, that are shown to underpin the parental action or inaction in question. One might wonder whether given the well-rehearsed and litigated doctrine formulated under Article 42.5, and the strong primacy accorded to parental authority generally, Article 44 and constitutional religious freedom might not indeed be redundant in such analysis.

Temple Street v. D: High Court orders blood transfusion against parents' beliefs

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