Court reserves judgment in home birth s challenge

The Supreme Court has reserved judgment on a challenge by four women to the refusal by a health board to provide them directly or indirectly with home birth services.

The judgment by the five-judge court is expected to outline what, if any, are the obligations of health boards under the Health Acts in relation to the provision of home birth services.

The four women had appealed against a High Court judgment of September 2002 which found that section 62 of the Health Act 1970 did not confer on the women a right to have a midwife provided for them to enable them to give birth in their homes.

Since proceedings were initiated against the South Western Area Health Board, all four women have had private home births.

They are Ms Sarah Clarke, Ballyvass, Castledermot, Co Kildare; Ms Melissa Lockhart, Craddockstown Road, Naas, Co Kildare; Ms Anne Brannick, Quill Road, Kilmacanogue, Co Wicklow, and Ms Caroline O'Brien, Ballinclea, Glen of Imaal, Co Wicklow.

The women claim the failure of SWAHB to provide home birth services to them, whether directly or through defraying all or part of the costs of securing the services of an independent domiciliary midwife, contravenes the board's obligations under section 62 of the Health Act.

Presenting the appeal yesterday, Dr Michael Forde SC, with Ms Barbara Hewson, for the applicants, said the court should look to the situation which obtained in the 1970s when section 62 of the Health Act was introduced. At that time, many women gave birth at home and, he argued, section 62 was always regarded as setting out an obligation on health boards to provide home birth services.

Dr Forde also said the failure to provide home birth services breached constitutional provisions relating to human dignity and equality. One of the most elementary aspects of human dignity was that a woman who was fit and healthy enough to give birth at home should be entitled to do so, he said.

The failure to provide home birth services, either directly or indirectly, also constituted discrimination as other health boards did provide such services, whether through grant-aiding independent midwives or through other means, counsel added.

He argued there was no basis for the board's claim that its refusal to provide such services was justified on the grounds of cost and risk.

Mrs Justice Denham told Dr Forde some of the arguments he was advancing related to policy issues and were not points on which the court could construe section 62.

Opposing the appeal, Mr Feichin McDonagh SC, with Mr Barry O'Donnell, for the SWAHB, said the board had acted at all times within the provisions of the Health Act and had acted entirely reasonably.

He argued that section 62 did not require the board to make available a domiciliary midwife service. There was a comprehensive medical, surgical and midwifery service provided by the SWAHB which the applicants had chosen not to avail of.

The board's position was that the distance between the applicants homes and their nearest maternity hospitals rendered them unsuitable for home birth services and introduced, in the event of an emergency, an unacceptable risk to life.