Greg Daly
The tragic case of the deceased pregnant woman ought not to have come before the courts, writes Greg Daly
The High Court’s St Stephen’s Day ruling in the tragic case of PP vs HSE will for many have doubtless come with confusion and discomfort, even dismay.
As ever, it is important not to prejudge the judges. The ruling by Mr Justice Nicholas Kearns, Ms Justice Marie Baker, and Ms Justice Caroline Costello runs to 29 pages and is not an easy read, but read carefully it should allay most doubts.
The plaintiff in the case was PP, father to NP, a 26-year-old mother of two, who had been expecting a third child when she was admitted to hospital on November 22 suffering dizziness and headaches caused by a cyst in her brain. Following a fall a week later she became unresponsive and was declared dead on December 3. She had been 15 weeks pregnant at the time, and with her unborn child still alive, doctors were loath to withdraw life support, believing this could breach Article 40.3.3 of the Constitution. Instead they intended, they told PP in early December, to continue somatic support for the duration of the pregnancy.
PP found visits to his daughter’s deteriorating body distressing. He believed, along with his sister-in-law and with NP’s partner of more than four years, that the extensive somatic support measures being implemented were unreasonable, experimental and unethical, and should be discontinued.
By the time the matter came to court, however, it was clear the HSE shared PP’s view. Cases like this, as an oft-cited 2010 University of Heidelberg review makes clear, need to be considered on their individual merits, and without exception, every doctor who gave evidence maintained that the situation was unsustainable.
With the unborn child now at just 18 weeks’ gestation, and with infection taking over NP’s body, continuation of somatic support was neither appropriate nor realistic, and was not medically justifiable. Gerry Durcan SC, representing the HSE, said the evidence showed that even if NP’s vital functions were maintained, there was no reasonable prospect of the child being born alive. As such, he said, it was not practicable to vindicate the child’s right to life.
The extent to which the unborn child’s right to life could practicably be vindicated proved the central issue in the case. It may well be, as then-Attorney General Peter Sutherland believed, that even before 1983 Bunreacht na hÉireann implicitly recognised the unborn’s right to life, but it was only after more than two thirds of voters backed the eighth amendment that the right to life of the unborn was explicitly enshrined in the Constitution.
Respect
Article 40.3.3 imposes on the State a legal duty to respect the unborn’s right to life, with due regard to the equal right to life of the mother, and, “as far as practicable, by its laws to defend and vindicate that right”.
For John Rogers SC, representing PP, article 40.3.3 was a red herring: everyone knew its purpose was to prevent the introduction of direct abortion into Irish law, and this was clearly not an abortion case, not least because nobody was proposing the direct targeting of the unborn child. While conceding that the eighth amendment had been introduced with a view to copper-fastening the State’s prohibition of abortion, the Court nonetheless agreed with Gerry Durcan SC, representing the HSE, that article 40.3.3 has a broader significance in that it acknowledges “in simple terms the right to life of the unborn which the State, as far as practicable, shall by its laws defend and vindicate”.
Conor Dignam SC, representing the unborn, argued that given NP death’s, the unborn child’s right to life must take precedence over family grief and NP’s entitlement to dignity in death. The Court agreed this was not a situation in which two equal rights to life were in the balance, as envisaged in article 40.3.3, but rejected any suggestion that NP’s right to dignity in death had simply evaporated.
Describing respect for the dead as “the hallmark of civilised societies from the dawn of time,” Kearns said it was “a deeply ingrained part of our humanity” that “may be seen as necessary both for those who have died and also for the sake of those who remain living and who must go on”.
Nonetheless, said Kearns, “when the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living…must prevail over the feelings of grief and respect for a mother who is no longer living.” The question, he said, was one of how far the Court should go in terms of trying to vindicate the child’s right to life in the particular circumstances of the case.
In claiming that article 40.3.3 was relevant to the case, Durcan had conceded that although the Constitution says the State must “as far as practicable” defend and vindicate the unborn’s right to life, such phrases as “as far as practicable” mean this obligation is not absolute, and while Dignam argued that in the Irish text of the Constitution, the phrase corresponding to the English “as far as practicable” might better be translated “as far as is possible,” he acknowledged that this should not be construed as encompassing remote possibilities.
Kearns, in any case, observed that the Supreme Court had previously addressed this, clearly interpreting the phrase to mean “practicable” rather than “possible”, where “practicable” means not “futile, impractical or ineffective”.
In considering how the child’s right to life might best be vindicated, Kearns said the Court could take guidance from several well-known cases. In 1996, the High Court had recognised that the right to life ranked first in the hierarchy of personal rights, but that this did not mean that life should be prolonged at all costs; indeed, in 1993, it allowed a brain-dead child to be taken off life support, finding it contrary to his interests “for his body to be subjected to the continuing indignity to which it was currently subject”.
That year in Britain, the Law Lords ruled that there comes a stage when if a responsible doctor must conclude that “further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system”.
Futile
Accepting that the vindication of the unborn’s rights was not easy, Dignam said it was for the Court to “consider what is in the best interests of the unborn”. Citing medical studies that describe the continuation of somatic support in brain-dead mothers as “futile” when there is “no realistic prospect” of a live baby being successfully delivered, the Court pointed to a 2012 judgment which found that in an instance where life support “would involve unnecessary pain and discomfort and would be futile”, invasive measures are not in the patient’s best interests and should be discontinued.
Pointing out that the somatic support for NP’s body, including the deployment of drugs not licenced for use in pregnancy, was “being maintained at hugely destructive cost to both her remains and to the feelings and sensitivities of her family and loved ones”, the Court recorded how NP’s obstetrician, Dr David Mortell, had said NP’s deteriorating condition would undoubtedly affect the child who he believed was facing into a “perfect storm”. Describing it as having “nothing but distress and death in prospect”, the Court ruled that it would be in the child’s best interests for the medical team dealing with the case to feel free to withdraw somatic support.
It is implicit in the judgment that NP’s doctors were adequately equipped to discern the best interests of the child, such that this matter need never have come to court, just as it did not in similar cases in 2001 and 2003. If there is a fault in the judgment, it is that the High Court did not spell this out.