On Sunday, 10th March 2013, it was reported that Waterford Regional Hospital made an emergency application to carry out a caesarean section on a woman who refused the intervention, as she wanted the baby to be born naturally(Reilly, “Hospital Sought Court Order to Force Mother to Have C-Section, Irish Independent, 10, March 2013). The woman was 13 days overdue. The Court was told that the baby could die or have severe brain damage and the mother would be at serious risk of haemorrhage if the procedure were not carried out. It was later reported that when the case was called, the woman reconsidered and consented to the procedure. This is the second instance in which a caesarean section refusal has been reported in the media in Ireland. In 2010, it was reported that a woman refused a caesarean section in order to await a High Court ruling about whether her baby should be administered treatment for HIV on its birth, to which she refused consent.
The law is particularly unclear in the context of caesarean section refusal in this jurisdiction. In this context, two fundamental constitutional rights come into stark contrast with one another, namely, the right to autonomy of the woman and the right to life of the unborn. The issue of the balancing of these rights in the context of a treatment refusal by a woman has not been addressed to date in Irish case law. The balancing of these rights has developed in the context of abortion, and there has been little discussion in the case law about the interaction of these rights in other instances which involve a threat to the life or wellbeing of the foetus, such as maternal drug use or caesarean section refusal.
It is clear that there is right to refuse treatment in Irish law. This was held to be part of the right to autonomy in Re a Ward of Court  2 I.R. 79. The right to life of the unborn is contained in Article 40.3.3°, which states:
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
The first thing to note is that Article 40.3.3° is not a constitutional provision about abortion. It is a general provision relating to the requirement on the State to protect the right to life of the unborn. Therefore, it would be centrally relevant in caesarean section refusal cases, where the refusal causes a risk to the life of the unborn child. However, as noted the main focus in relation to this constitutional provision has been on the issue of abortion. Attorney General v X 1 I.R. 1is the seminal case in relation to this constitutional provision. It held that an abortion is permissible
[I]f it can be established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible.
It was also held that a risk to a woman’s life caused by the threat of suicide satisfies the test laid down in X. In the context of abortion, the right to life of the unborn can only be subordinated to the right to autonomy of the woman, if there is a real and substantial risk to her life. A core problem with this is that the meaning of “real and substantial risk” is unclear. For example, it is unknown where the line should be drawn between life and health in these circumstances. The question which arises in the caesarean section context is whether a woman can refuse a caesarean section on the grounds that it will cause a reduction in her quality of life. This happened in England and Wales, in Rochdale Healthcare (NHS) Trust v C 1 FCR 274, wherein a woman refused a caesarean section due to back pain and painful scars suffered from a previous caesarean section. The other issue relates to the level of risk which must be posed to the life of the unborn to mandate State intervention to protect its right to life. It is unclear, for instance, if the State must intervene in a situation where the unborn is at risk of being born with a disability as a result of the refusal, which was a reported risk in the current case.
One case which can give some guidance in this regard is G. v. An BordUchtála I.R. 32 wherein Walsh J. stated that the right to life of the child, having been borninvolves the right to be reared and educated, the right to liberty, work, rest and recreation and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. This case refers to the right of the child “having been born”. The meaning and scope of the right to life of the child before it is unborn remains unclear. However, it could be argued that since the born child has the right to liberty and recreation etc., it has the right to be born in the healthiest state possible in order to realise these rights. This might mean that measures which could reduce its risk of developing brain damage, for example, such as an enforced caesarean section, should be carried out if necessary. As Sherlock (1989) notes, G v An BordUchtála seems to suggest that the right to life of the child entails more than just the right to be born and involves a certain quality of life. However, she also argues that since the right to life of the foetus and woman are equal, it may be assumed that the woman’s right to life also includes these rights. Thus, this might mean that if a caesarean section were to lead to a reduction in her health or quality of life, the refusal could be constitutionally permissible.
In relation to guidance on the specific issue of caesarean section refusal in Ireland, not much can be gleaned from the case law. It is clear that if the woman refuses the intervention and is found to lack capacity to make this decision, a decision will be made on the basis of her best interests. This is line with the Supreme Court judgment in Fitzpatrick and Another v. K and Another . However, the possible approach of the Irish courts in relation to a competent woman’s refusal to consent to a caesarean section is difficult to assess. In this situation, the rights of the woman and the unborn would have to be balanced against each other. The only available information about how the courts have approached this issue in the past comes from media reports of two cases. For example, the 2002 case ofSouth Western Health Board v K and Anor I.E.H.C 104indicated that a woman’s autonomy could be subordinated to the rights of the unborn. In this case, a woman refused to undergo treatment which would reduce the risk of transmitting HIV to her foetus. Although this does not relate to caesarean section refusal, one aspect of the case is relevant. Finnegan P. advised her that if she refused to give birth in a hospital he would have to make “much more serious orders affecting her bodily integrity” (Irish Times, 20 July 2001). However, as Casey (2002) notes, since further details are not available,it is unknown whether such orders could mean forced confinement, twenty-four hour supervision or the forced administration of medicine. It could be argued that while the latter interventions come within the scope of “practicable” measures, as permitted under the Constitution, a caesarean section is not “practicable”, due to the invasiveness of the procedure.
In contrast,in the unreported case of Health Service Executive v F, (High Court, ex tempore, Birmingham J., November 20, 2010) a different approach appeared to have been taken. In this case, the HSE secured a High Court order allowing a doctor to administer certain drugs to the baby of a pregnant woman upon birth with the view of reducing the risk of transmission of HIV. The woman declined to consent to this treatment. She also refused a caesarean section on the day that was medically advised, but agreed to have it four days later. In the interim she wanted the court to determine whether it was in the child’s best interests to be treated with the drugs.It was reported that ‘Justice George Birmingham had earlier stated that she could not be forced to have a caesarean section and said no order could be made requiring her to undergo such a procedure’ (Mooney, ‘Court: Baby Must Have HIV Drugs’, Sunday Times, 21 November 2010, 8). However, since no further details on the case are available, it is unknown how such a conclusion was reached and how the constitutional rights of the woman and the unborn are to be balanced in a case of caesarean section refusal.
The current case gives little added guidance in this area. It was reported that “Judge John Hedigan said that if it is not necessary, then it is appropriate that no court order is made”. This could mean that if it had become necessary to carry out the caesarean section, the Court would have made an order for its enforcement. On the other hand, it may be a general statement that unless it becomes completely necessary, it is inappropriate for the Court to make any order in this regard. It is hoped that a reported judgment might become available in order to ascertain whether the Court dealt with the issue of the interaction of the right to life of the unborn and right to autonomy of the woman in any detail. In the two cases involving caesarean section refusal, the woman eventually relented and agreed to the procedure. Therefore, the Court has not had to engage in an in-depth analysis of the scope, meaning and interaction of the constitutional rights at issue. An analysis of article 40.3.3° in the Courts and in the literature has been, to date, confined to the area of abortion. Its meaning and scope in the context of a competent woman’s refusal to consent to a caesarean section remains to be seen.
*Katherine Wade, PhD Candidate, University College Cork, Department of Chidlren and Youth Affairs Research Scholar.
A. Sherlock, “The Right to Life of the Unborn and the Irish Constitution” (1989) 24(1) Ir. Jur. 13.
G. Casey, “Pregnant Woman and Unborn Child: Legal Adversaries” (2002) 8(2) M.L.J.I. 75.
This has been cross-posted from www.humanrights.ie