Last night, reports emerged of a clinically dead pregnant woman (in her second trimester) being kept alive in an Irish hospital, against the wishes of her parents, to preserve the life of the unborn child. It has been suggested that a legal challenge may ensue. If it does, this has the potential to be an especially emotive and complex constitutional dispute, in which a court would be called on to adjudicate between two competing arguments that enjoy support not just in sectors of the public, but in the case law on the conflicting rights in question: the right to die a natural death and the right to life of the unborn.
The right to die a natural death
On one side of the argument lies In Re a Ward of Court (No. 2)  2 IR 79. This case concerned a woman left in a near-persistent vegetative state following surgery. Because she showed some minimal response, the hospital was unwilling want to discontinue artificial nutrition and hydration, and so she remained in this condition for 20 years. Ultimately, her family applied to have her declared a ward of court, and the Supreme Court held that she may be allowed to die. Different judges couched their decisions differently. Hamilton CJ stated: “As the process of dying is part, and an ultimate inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerns so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means, which have no curative effect and which is intended merely to prolong life.” Denham J (as she then was) stated that “invasive medical treatment … results in a loss of bodily integrity and dignity’, and that ‘[a] constituent of the right of privacy is the right to die naturally, with dignity and with minimum suffering”.
Re a Ward of Court implies that a person should not be kept alive, where there is no hope of recovery, against their wishes. If the person in question is not in a position to express their wishes, the Court may decide that it is in that person’s best interests to be allowed to die naturally. To do so in the present case would also result in the unborn dying, but this would also be nature taking its course; there would be no question of a deliberate acceleration of the death of the unborn, and thus, no conflict with principles set down in Re a Ward of Court itself. The case of Baby O v Minister for Justice  2 IR 169 differentiated between deliberate terminations and decisions which merely expose the unborn to a higher risk of a natural death.
All of the above may be qualified by the fact that unlike the mother, the life of the unborn is not beyond rescue. The treatment would not merely prolong life; it would save it.
The right to life of the unborn
On the other side of the argument in this case lies the right to life of the unborn child, as protected by the Eighth Amendment to the Constitution (Article 40.3.3°). In Re a Ward of Court, the right to life was described by Denham J as the “pre-eminent personal right”. In Attorney General v X  1 IR 1, it was held that the right to life of the unborn would take priority over lesser personal rights of the mother (in that case, the right to travel). Of course, the Supreme Court ultimately held that the mother – a suicidal 14-year old rape victim – may have an abortion because her life was in danger. However, even this conclusion may support the argument for the unborn in the present case. If the unborn may be required to entirely forfeit the “pre-eminent personal right” (the right to life) where necessary to save the right to life of the mother, might the mother be required to merely delay the exercise of a lesser right (the right to die a natural death) to save the life of the unborn?
All of the above may be qualified by the fact that the Eighth Amendment only requires the State to defend and vindicate unborn life “as far as practicable”. The courts have not expanded upon the meaning of this phrase, but it is arguable that keeping a clinically dead woman alive for several months to maintain a pregnancy goes beyond what the provision requires.
Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork.