A couple who have sued the Health Service Executive over the stillbirth of their baby son have argued before the High Court that they are entitled, because of the right to life of the unborn amendment to the Constitution, to seek damages for wrongful death.
That claim is being disputed by the HSE (southeastern area), which contends there is no law under which damages may be awarded in relation to the death of an unborn child. It is claimed the stillborn child is not a person within the meaning of the Civil Liability Act 1961.
The Attorney General has been joined in the action because the couple claim their right to seek damages for an unborn child must be interpreted in accordance with Article 40.3.3 of the Constitution, under which the State is obliged to vindicate the right to life of the unborn.
The proceedings have been brought by Lavinia Doyle (36), an office assistant, and her Italian-born partner, Luca Chiussi (35), a welder. They claim they suffered severe emotional distress, sleeping difficulties, loss of appetite and feelings of profound sadness following the stillbirth of their baby son Ethan on July 25th, 2003.
The couple say they were already traumatised by the death the previous year of another child, Matteo, three days after his birth in Waterford Regional Hospital. Ms Doyle developed pre-eclampsia, which progressed to eclamptic shock, and Matteo was delivered by Caesarean section but died from complications, it is claimed.
Ms Doyle, who is originally from Waterford, with an address in Somma Lombardo, Italy, be- came pregnant again later that year, the court heard. This pregnancy was closely monitored and in her 29th week her legs became swollen and she was admitted to Waterford Regional Hospital before being discharged and re-admitted five days later.
It is claimed she suffered an early separation of the placenta from the wall of the uterus (placental abruption) and that she sought to have the baby delivered by Caesarean section, but was told this was not necessary. Ethan was later delivered stillborn.
The couple claim the HSE failed to detect or respond appropriately to the onset of constant abdominal pain and caused or permitted the baby to die by failing to deliver him in time or at all.
As a result of the baby's death, they have suffered and continue to suffer mental distress, loss, damage and expense.
The HSE denies the claims and also denies that the Civil Liability Act 1961, under which the action is brought, makes provision for a claim for damages in respect of an unborn baby in the mother's womb. The HSE denies the un- born child is or was a person within the meaning of the 1961 Act.
The HSE also denies its servants or agents were guilty of any negligence or breach of duty or that they occasioned or caused the death of Ethan. The placental abruption that Ms Doyle suffered occurred without warning and could not have been predicted or prevented, it is claimed. It is also denied that any earlier intervention would have led to the baby being born alive.
The case continues today before Mr Justice Paul Butler.