The Irish High Court has refused an application by the Health Service Executive (HSE) for a court order which would compel a pregnant woman to have a Caesarean section without her consent.
The HSE argued that the procedure was necessary to vindicate the right to life of the unborn, as recognised by Article 40.3.3 of the Constitution. The emergency hearing, believed to be the first of its kind in Ireland, was held last month in camera, or in private. The judgment has now been made public following a successful application by counsel for the woman.
By way of background, the woman’s three other children were delivered by Caesarean section but, now pregnant for a fourth time, she intended to have a natural birth. Obstetricians gave evidence that while a natural delivery after three Caesarean sections was possible, it could cause a uterine rupture, posing risks to the life and health of the woman and of the unborn. Mr Justice Twomey considered the woman to be taking on an “unnecessary” risk, but he maintained that this did not justify court intervention, mandating that the woman should “have her uterus opened against her will”. Such a course of action would constitute a grievous assault in any other circumstances, he found.
The Court held that the HSE had failed to show that the woman did not have the requisite capacity to make decisions regarding her own medical treatment. The fact that the emergency hearing took place a matter of days after the woman’s due date meant that the constitutional protection of the right to life of the unborn was a key issue in the case. Mr Justice Twomey found, however, that the courts’ right to intervene in parental choice in relation to their unborn child is no greater than that pertaining to parental choice in respect of a born child.
Following the birth of the child, counsel for the woman and for the child applied for an order to make the High Court judgment public. This was challenged by the HSE on the basis that it was not in the best interests of the child nor of the medical witnesses in the case. Mr Justice Twomey granted the order by reason of the fact that the purpose of the in camera order was to protect the woman and her child now seeking to have the order lifted. The Court held that the child’s best interests are a matter for the mother, save in exceptional circumstances, and that the HSE’s objections to the order being lifted were subordinate to the constitutional principle that justice be administered in public. The judgment will not disclose the identities of the parties or of the witnesses.