A BRITISH Law Lords judgment which allows pregnant women to refuse surgical intervention even when this might put the life of their baby at risk might be repeated here, according to legal sources. However, because of the constitutional protection of the life of the unborn, it would prove to be a complicated case.
A woman had appealed to the House of Lords against a High Court order allowing doctors to perform a caesarian section against her will. They wanted to carry out the procedure because of the position of the baby in her womb.
The woman lost her appeal on the grounds that her mental functioning was impaired by her fear of needles, but the Law Lords outlined the principles of law on the question. These were that the court had no jurisdiction to intervene to protect the foetus if the woman was competent.
"If the competent mother refuses to have the medical intervention, the doctors may not lawfully do more than attempt to persuade her," they said. Lady Justice Butler Schloss was sitting with Lord Justice Saville and Lord Justice Ward.
"There will be situations in which the child may die or may be seriously handicapped because the mother said no ... The mother may indeed regret the outcome, but the alternative would be an unwarranted invasion of the right of the woman to make the decision," they said.
Ms Marie Baker, a barrister said British legal precedents only had persuasive force in Irish courts and this was most commonly exercised in commercial law. "No British law will have an impact if Irish law says something else. It does. The Constitution gives equal right to life to the unborn, though the Supreme Court judgment was that sometimes the mother's right superseded that of the unborn. It is a question of interpretation."
This issue has been the subject of much debate in the US courts, according to an academic constitutional lawyer. It was a complex issue which raised the question of autonomy and of the directness of the conduct of the mother towards the child, he said. He thought that in such a case the same decision would be made in the Irish courts as in the British House of Lords.
"I don't think mothers are expected to be heroes in terms of what they should undergo. If they are entitled to treatment for cancer, for example, which threatens the life of the baby, they are entitled to refuse treatment for a medical reason."
If that refusal was based on a non medical reason, however, the decision might be different he said, but then the question of how the decision was to be implemented came up.
"Do you tie the mother down and force the treatment on her? That raises the question of bodily integrity," he said.