In the end the High Court was humane and appropriately speedy in deliberating. And in their language, there was a sense that when weighing the legal issues before them, Justices Nicholas Kearns, Marie Baker and Caroline Costello were acutely conscious of the tragedy of the family involved. Thankfully they delivered a decision which respected the family's wish to let their dead daughter's tortured body finally rest.
And yet there is no doubt that the family’s agony was prolonged by the ordeal of what some see as an unnecessary court hearing, the outcome of which was a forgone conclusion as soon as it was clear that medical testimony on the prospects for the eventual survival of a live baby was unanimous. The chances of the foetus surving were “virtually non-existent”, and the perceived ambiguity arising from the Eighth Amendment evaporated.
Former Attorney General Michael McDowell, citing a precedent in which he had so advised, argues persuasively in the Sunday Independent that the case was "unsuitable for judicial determination" and that such a court hearing is "repugnant". The decision to switch off life support should have been for caring, ethical health professionals, presumably in consultation with family.
Whether the decision to go to court was, as McDowell suggests, a shirking of medical or administrative responsibility or, alternatively, a prudent response necessitated by the onerous legal requirements of the Eighth Amendment, the court itself failed to provide clarity or help. Its determination, based largely on the possiblity of bringing this specific foetus to viability, made the decision unique to the case, and raises the virtual certainty of similar cases ending up in the courts in future.
Worryingly, such cases, perhaps involving later term foetuses, could result in the court backing a divided medical opinion on viability against family wishes for a dignified treatment of their loved one in death. That would mean in practice the expropriation by the state of control of a body from the family to allow for what was described in this case as an experiment, verging on the “grotesque”, in seeking to nurture to full term a foetus in its dead mother’s body.
Such cases, unlike the current one, would see the Eighth Amendment's full force expressed. As Master of Holles St Dr Rhona Mahony argues, "There is a particular difficulty in ascribing equal right to life in the mother and foetus in early gestation prior to viability". The High Court made that reality clear in finding that when the mother dies, the rights of the unborn "must prevail over the feelings of grief and respect for the mother who is no longer living". So the question became one of "how far the court should go in terms of trying to vindicate that right in the particular circumstances which arise here". With no prospect of survival of the foetus, there was no need to weigh the mother's rights against those of the foetus.