After D: antenatal diagnosis and human rights
A recent ruling in D v Ireland suggests that Irish women may be able to obtain abortion in cases of lethal fetal anomaly. Barbara Hewson, counsel for D, reflects on the case.
According to evidence given to the All-Party Oireachtas Committee in 2000, Ireland has the second highest risk of neural tube defects in the world. This is not a record of which any country can be proud. But the European Court of Human Rights’ recent ruling in D v Ireland suggests that Ireland may now have to provide termination of pregnancy to women diagnosed with lethal fetal anomaly. The 41-page decision, published on 5 July, has major implications for pregnant women and maternity hospitals, as well as for the media.
The tragic background to this case is well known. D was expecting twins when she had a routine scan at 14 weeks, early in 2002. She was informed that one twin had died. At 17 weeks, her other twin was diagnosed with a lethal chromosomal anomaly: Trisomy 18, also known as Edwards’ syndrome. Her doctors indicated that they appreciated she was not eligible for an abortion in Ireland. Their view was understandable, in the light of the X case (for more on the X case, see here) (1). So D travelled to the United Kingdom for a termination. Later that year, whilst still in the throes of bereavement, she complained to the European Court of Human Rights. This was a brave step, which no Irishwoman had taken before. The European Court’s rules allowed D to be granted confidentiality.
The Fourth Section of the Court held an oral hearing last September. There were seven judges, six of whom are men. Their nationalities are Irish, British, Maltese, Spanish, Finnish, Bosnian, and Albanian. By a majority, the size of which was not disclosed, the Court declared the case inadmissible. The majority reasoned that because D had not tested the legal waters in Ireland, before she went abroad for her operation, she failed to exhaust her domestic remedies. At a minimum, the Court said, she should have sought counsel’s opinion on her situation, and issued a Plenary Summons with a view to ‘an urgent, preliminary and in camera hearing to obtain the High Court’s response to her timing and publicity concerns.’ (2)
Nevertheless, the Court’s decision is groundbreaking in a number of respects. Clearly it felt that the Irish courts should grapple with the difficult issues raised by D’s case, first. This will come as a relief to politicians, who can now leave this topic to the judges. But the European Court also indicated that if D had started a constitutional action in Ireland, she could have succeeded. The government took the same approach, arguing that such an action had reasonable prospects of success. This may cause surprise in some quarters.
The European Court said: ‘there is, in the Court’s view, a feasible argument to be made that the constitutionally enshrined balance between the right to life of the mother and of the foetus could have shifted in favour of the mother when the “unborn” suffered from an abnormality incompatible with life.’
This is a green light for those who would like to see a development of the law in the X case. The government’s stance fortifies this conclusion: whilst accepting that Article 40.3.3 of the Constitution prohibits a liberal abortion regime, it told the European Court that Irish judges would be unlikely to apply ‘remorseless logic’ when interpreting this Article, especially when the facts were exceptional.
Many will find it reassuring that the government takes such a pragmatic stance. But how can a pregnant woman contemplate a constitutional action, at such a vulnerable time, when coming to terms with a terrible diagnosis? Many would think this unrealistic. But the European Court disagreed. It accepted that the time frame for the Irish courts to decide such a case was extremely limited: a few weeks, at most. It also accepted that it was ‘essential’ for the woman’s identity to be kept confidential in any litigation.
Other common law jurisdictions have shown that they can provide a speedy response in cases of controversy over proposed medical treatment. In England, for example, hospital lawyers and the Family Division of the High Court are used to urgent applications in medical cases. These cover a wide range of scenarios, from the mental patient who refuses medical treatment, to a hunger-striking prisoner, to cases where a patient lacks capacity and there is disagreement about what treatment is in his ‘best interests’.
These cases are handled in a non-adversarial fashion: the court’s role is to declare whether a particular procedure is lawful or not. They are almost always heard in private, and judges routinely order that no identifying details be published. I can see no reason why a pregnant woman seeking an urgent court ruling, following a diagnosis of Trisomy 18 or some other fatal condition, should not have her case handled with the utmost care and expedition by the Irish courts.
The government suggested to the European Court that it would be most unlikely that such a woman would be liable for legal costs, if she lost. And it argued that court pleadings would not be made available to a third party, without consent of the parties. So the way is clear for a hallmark case, provided that a woman unlucky enough to find herself in a situation similar to D’s case has access to prompt legal advice and representation.
In future, women attending Irish maternity hospitals who receive a diagnosis of lethal fetal anomaly should be informed that they could apply to the High Court, should they want a termination in Ireland. Both the hospital and the State should cooperate, given the need for speed. The hospital might wish to apply with the woman as a co-plaintiff, because her doctors might also want preliminary directions from the court prohibiting their identification, and for the case to be heard in camera (in private).
The court would need to ensure that no details were published in any judgment or report of the case, which might identify the woman or her doctors. The present practice, whereby courts ‘request’ the media not to identify parties, will not do. It does not provide sufficient safeguards to a litigant whose constitutional rights to medical privacy and effective access to the courts are at stake.
The case of D has also helped to clarify aspects of the law relating to abortion information. For example, the law permits a hospital to give a woman her medical notes, if she wants to travel aboard for a termination. According to the government, there is no prohibition on Irish consultants making a formal referral to another hospital abroad, provided they do not make the actual appointment for an abortion.
So when a consultant is caring for a woman with an adverse antenatal diagnosis, who wishes to travel aboard for a termination, he can pick up the phone in the patient’s presence to make contact with a foreign provider and explain his patient’s situation. He can do a handover of care there and then, to ensure that continuity of care is not unduly interrupted.
A diagnosis of fetal anomaly is a tragedy for all concerned. It is sad that there is no guidance on the specific problems faced by pregnant women like D in Ireland. But a charity called Antenatal Results and Choices (ARC) provides non-directive help and support to parents during the antenatal testing process. (3) It also produces a useful handbook for parents when an abnormality is diagnosed in their unborn baby. Until some form of official guidance is available, this remains a helpful resource for those involved in maternity care, and their patients.
© Barbara Hewson
Barbara Hewson is a member of the Irish Bar, based at Hardwicke Building, Lincoln’s Inn, London WC2. This article is copyright and may not be reproduced or used without the author’s permission.
(1) See Attorney General v X, Wikipedia
(2) See the Council of Europe website
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