The High Court has dismissed an application brought by the Irish Health Service Executive for an order to force a pregnant woman to have a caesarean section against her will, in order to vindicate the right to life of her unborn child.
Mr Justice Michael Twomey found that the right to life of the unborn child provided for by Article 40.3.3 of the Constitution was limited, and that the performance of invasive surgery upon the woman, against her will, would be a gross violation of her right to bodily integrity, her right to self-determination, her right to privacy, and her right to dignity.
Accordingly, the Court’s intervention in such circumstances was a “step too far”.
Unnecessary risk to life
The pregnant woman (“Ms B”) was a patient in a Dublin hospital who had three children all born by caesarean section, had no history of prior vaginal delivery, and was being advised by her obstetrician to have an elective caesarean section. Justice Twomey said that this was a “crucial factor” in the case before him, as the three previous caesarean sections meant that if she were to have her unborn child delivered naturally, there was a risk of her uterus rupturing; endangering the life of herself and her unborn child.
Further, the medical advice was that “opting for a natural delivery after a third caesarean section could require an emergency caesarean section with all the greater risks to the health of the mother and unborn child” that might be avoided through an elective caesarean.
A leading obstetrician in Ireland gave evidence stating that the surgery involved in a caesarean section weakens the uterus – therefore in circumstances where the mother has previously delivered once by caesarean, there is a “1 in 150 chance of the uterus rupturing during a natural birth”, increasing to a 1 in 50 chance after two caesarean sections.
The expert obstetrician indicated that it was “unheard of” in Ireland for a woman to opt for a natural birth after three caesarean sections, and could therefore only “guesstimate” the risk of rupturing the uterus in these circumstances as a 1 in 10 chance.
In the High Court, the HSE provided evidence that “no other hospital in Ireland was available or willing to supervise a natural delivery of a baby after three caesarean sections, in view of the risks involved”.
In contrast to evidence given by obstetricians’ before the Court, counsel on behalf of Ms B referred to 2013 guidelines issued by the Institute of Obstetricians and Gynaecologists of Ireland, and 2015 guidelines issued by the Royal College of Obstetricians and Gynaecologists in the United Kingdom, which both advise that Vaginal Birth After Caesarean (VBAC) can be considered if the woman is properly advised and counselled on the risk of uterine rupture and maternal morbidity. The difficulty with the guidelines was that the former did not provide figures on more than two previous caesarean sections, and the latter provided figures where more than half of the women had “also had a previous vaginal birth”.
Justice Twomey stated that, in view of all the evidence, Ms B’s decision to opt for vaginal delivery involved taking “an unnecessary risk in relation to her health and the health of her child”. However, the Court’s task was to decide whether she could be forced, against her will, to submit to a surgical procedure in her interest and in the interests of her unborn child – the fact that Ms B was taking an unnecessary risk should not per se lead to the Court’s intervention.
After finding that Ms B, as an adult patient, had the mental capacity to make the decision regarding the risks involved, and who must be presumed to have capacity to refuse to take medical advice – Justice Twomey concluded that if the case were involving Ms B’s health alone, she would be entitled to such a refusal.
The right to life of the unborn
In the context of Ms B’s unborn child, the Court had to consider Article 40.3.3 of the Constitution – protecting the right to life of the unborn. To assist in this consideration, Justice Twomey referred the Supreme Court judgement North Western Health Board v HW and CW  3 IR 622 which found that the intervention of the State in extreme cases of parents putting their children at risk might only be justified in exceptional circumstances.
Justice Twomey inferred from the HW and CW case that “the right of the Courts to intervene in a parent’s decision in relation to an unborn child could not be any greater than the Court’s right to intervene in relation to born children”.
If Ms B was not pregnant, the performance of invasive surgery upon her, against her will, would be a gross violation of her right to bodily integrity, her right to self-determination, her right to privacy, and her right to dignity. Furthermore, Article 40.3.3 is a limited constitutional provision, and only applies “as far as practicable” – accordingly, the question for the Court was whether the circumstances of the case were so exceptional so as to justify actions which would otherwise be a breach of Ms B’s constitutional rights.
Refusing the HSE’s application, the Court concluded that to order the forced caesarean section of a woman against her will was “a step too far”.
- by Róise Connolly for Irish Legal News