For the benefit of the child

A young woman is in the later stages of pregnancy

A young woman is in the later stages of pregnancy. A lengthy relationship with the child's father has just ended and she is feeling depressed. She goes to see a doctor who diagnoses pre-eclampsia, a condition which, if untreated, can have fatal consequences for the woman and her baby. He recommends an early delivery by Caesarian section. She refuses.

The doctor then arranges for her to see a social worker, the first stage in a process which will allow the courts to intervene and compel her to undergo the operation.

Throughout many hours of discussion the woman adamantly refuses to accept an early delivery by Caesarean section, instead stating she wishes "nature to take its course". It is clear she understands that the consequences of her decision could be fatal for her and her baby.

Eventually she is admitted to a psychiatric hospital for assessment and from there transferred to a maternity unit in another hospital. She continues to object strongly to undergoing a Caesarean section, and a court order is obtained giving the hospital permission to perform the operation, thereby ensuring the safe delivery of her baby.

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And quite right, too, would be the reaction of many people. It was certainly the opinion of the professionals working in the London health services where this happened in April 1996. But it was not the opinion of the Court of Appeal in London, which two weeks ago found that the social worker and the health authority had acted wrongly on a number of counts.

Could such a thing happen here? Dr Peter McKenna, Master of the Rotunda, prays that it does not, but he says he would take court action to save a baby who needed to be delivered by Caesarean section, if he had to. However, he also points out that in this particular case the woman's rights had been violated in a number of ways.

"There are three things I dread," he says, "the hospital burning down, a baby being stolen or a woman needing a Caesarean and refusing it.

"The more black-and-white the case, the easier the medical decision would be," he says. "For example, if it was a big healthy baby at term, we would contact the hospital's solicitor and get his advice. Possibly we would get the baby made a ward of court.

"Because of the equal right to life in the Constitution, which does not exist in Britain, a term baby would very clearly have constitutional rights which would have to be looked at in the light of the rights of the mother."

In the English case the Court of Appeal had to consider both the right of the woman to refuse a medical procedure on her own behalf, and the rights of the foetus.

The woman, known as MS, had been admitted to a psychiatric hospital under the Mental Health Act, and it was under this Act that she was detained in the obstetrics unit where she underwent the Caesarean.

At all stages she remained adamant - she did not want any surgical intervention. She outlined her objections in what the appeal judges described as an "articulate letter", spelling out her "extreme objection to any medical or surgical intervention". She said she wanted to make it "absolutely clear that it is against my wishes and I shall consider it an assault on my person".

She also said she would seek legal advice at the earliest opportunity, and did so, remaining in contact with her solicitor until the order was obtained for the Caesarean section. While she did not struggle during the anaesthetic, the judges concluded this "was not consent, but submission".

"MS knew perfectly well what she was doing," they said. "There is no sufficient evidence from which to conclude that her competence . . . was in question." They went on to state the law in Britain: "Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it. This reflects the autonomy of each individual and the right of self-determination."

There remained the question of her obligations to her unborn child. The judges were very sympathetic to the view that when a certain medical procedure on an adult would save his or her child, or even the child of a stranger, there would be compelling reasons for carrying it out. But they concluded that this violated the principle of individual autonomy.

Under English law the unborn child is not a separate person from its mother. "Its need for medical assistance does not prevail over her rights," they concluded. "She is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it."

One of the lawyers in this case is Barbara Hewson BL, whose family comes from Galway, and who considers herself Irish. Educated in a convent school and at Trinity College, Cambridge, she is joint vice-president of the Association of Women Barristers.

In 1996 she wrote an article raising the question of the courts sanctioning Caesarean sections being performed on women against their will, of which there have been dozens of examples in Britain. MS, the woman in this case, read the article and contacted her. The result was the appeal of the court's decision to the Court of Appeal.

Under the rules of the English Bar, Hewson cannot discuss the details of a case in which she is involved until it has concluded, and the issue of damages in this case has not yet been settled.

However, she says the general principle at stake here is whether people should be forced to undergo medical procedures for the benefit of someone else. "If we say a woman should undergo medical treatment to benefit an unborn child, why not for a born child? Why not for someone else's child? Where do you draw the line?"

Recently in Dublin an attempt to involve mentally handicapped people in a series of medical tests was abandoned following objections from the parents.

Under the Irish Constitution the "unborn" is endowed with the specific right to life, along with the equal right to life of the mother. While this has been interpreted in the X case to favour the mother's right to life over that of the unborn, it has never been tested in a case like the one involving MS, whose bodily integrity, not life, was counterposed to the right to life of her child.

A leading constitutional lawyer agrees with Dr McKenna that the constitutional right to life of the unborn means the Irish courts could take a different view to the English Court of Appeal. "That would have to be taken into account." He added: "Whether the outcome would be different, of course, is another matter."