Abstract
Maintaining somatic support after brain death in a pregnant woman to support foetal life is a controversial and little understood treatment. International consensus indicates that this treatment may be ethical but only in certain limited circumstances. The Irish Constitution protects the right to life of the unborn. This article considers the recent case of PP v. HSE in which the Irish High Court addressed the protection of unborn life in the context of maternal brain death. Although the Court ordered the withdrawal of somatic support, this holding was largely based on the conclusion that the foetus could not survive. The decision strongly implies that maintaining somatic support may be constitutionally mandated in cases where the foetus has a chance of survival. This article argues that the effect of the Irish law is to deny doctors the ability to assess these situations using their best clinical and ethical judgement.
Keywords
In December 2014, the High Court of Ireland decided the tragic case of PP v Health Services Executive. 1 The case concerned a woman, ‘NP’ who had suffered brain stem death in the course of pregnancy. The Irish Constitution expressly protects the right to life of the ‘unborn’. As a result, NP’s treating doctors took the view, against the wishes of her family, that she should be maintained on a ventilator to preserve the life of the foetus, which still had a heartbeat. Her family initiated legal action seeking to have NP removed from the ventilator and laid to rest. The Plaintiff, PP, was the father of NP, and his position was supported by the rest of her family and by her partner. Ultimately, the Court acceded to the family’s application to have treatment discontinued.
The decision in PP has significant implications for the way in which such cases will be managed in the future. This article will situate the decision in the international medical and legal discourse around somatic support after maternal brain death. It will be argued that the effect of the decision in PP is to tie the hands of doctors dealing with these cases. International consensus suggests that the maintenance of somatic support may be clinically appropriate in certain very limited circumstances, generally where this is in accordance with the wishes of the family and where the deceased woman was not known to object. The decision in PP focuses on the possibility of foetal survival, to the virtual exclusion of other considerations. The wishes of the family and the deceased woman are largely ignored. As such, PP sets a course for Irish healthcare that diverges from international best clinical practice.
The decision in PP may also have implications for Irish abortion law, which is the primary focus of the constitutional protection for the unborn. This article will argue that the application of PP in the abortion context is quite limited. Whilst the decision in PP certainly favours the rights of the foetus in preference to those of the pregnant woman that emphasis was inextricably linked to the fact that NP was deceased. As such, the decision will not necessarily have any impact on the legal protection of the foetus in the context of an ordinary pregnancy.
The first section discusses the leading medical and ethical sources on maternal brain death in pregnancy, whilst the second section sets out the fundamentals of Irish law on the protection of the foetus. The third section analyses the decision of the High Court in PP, and the fourth section explores the decision’s key findings and their future implications for Irish law.
International medical context: Maintaining somatic support after maternal brain death
Brain death is almost universally accepted as the clinical definition of death. 2 Ordinarily brain death is followed by cardiovascular collapse, but advances in life support technology and critical care mean that vital organ systems can be maintained after brain death. 3 Generally, however, it is considered futile and therefore unethical to continue somatic support after brain death has been diagnosed. 4 Maintaining somatic support is usually only pursued with a view to organ donation or to allow all members of the family a chance to ‘say goodbye’. One further situation in which continued somatic support is sometimes considered to be ethical is in the case where brain death is diagnosed in a pregnant woman, but the foetus remains alive. 5 Only a small number of these cases have been reported and all studies acknowledge that the numbers are unreliable because there is no way of knowing how many times this has been attempted without success. 6 Some evidence exists, however, that it is possible to maintain somatic support for a pregnant woman after brain death leading to the birth of a viable baby. 7 The foetus is most likely to survive when brain death occurs later in pregnancy, but some reported cases record live birth when brain death occurred as early as the 16th week. 8
As such, maintenance of somatic support with a view to preserving the life of a foetus is not universally believed to be unethical, though the situation raises highly complex issues and most commentators agree that each case must be considered on its own facts. Peart et al. argue in the context of the law of England and Wales that it is lawful and ethical to maintain somatic support with a view to preserving the life of the foetus, as long as the wishes of the mother are unknown. 9 Sheikh and Cusack take the view that the doctor treating a pregnant woman has two patients: the woman and the foetus. 10 Where the mother dies then the doctor’s remaining duty is to the foetus and he or she should treat in the best interests of the foetus. Many commentators emphasize that pursuing this course of treatment should only be done with the consent of the next of kin, especially because this highly unusual form of pregnancy entails an increased risk of disability. 11 Equally, many commentators stress the importance of respecting a woman’s previously expressed will. It may be the case that she has executed a legally binding advance directive that mandates the withdrawal of treatment even where this will lead to the death of the foetus. 12 An essential factor, therefore, is whether or not the woman’s views are known.
The legality of this course of treatment is closely related to the law on advance directives, to laws on withdrawal of treatment and consent to treatment and to legal regulation of abortion and protection of the foetus. 13
Legal background: The right to life of the foetus in Irish Law
The Irish Constitution was ratified in 1937.
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Arguably, the Constitution always protected the right to life of the foetus.
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Express protection for the right to life of the unborn was inserted into the Constitution by referendum in 1983.
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Abortion was prohibited in Ireland under the terms of the Offences against the Person Act 1861,
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but some concern existed that the courts might relax the absolute prohibition on abortion by judicial interpretation.
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Such fears were partially motivated by the decisions of the US Supreme Court in Roe v. Wade
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and of the Court of Criminal Appeal of England and Wales in R v. Bourne.
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Clear protection for the right to life of the unborn was seen as protection against such a development and Article 40.3.3 was inserted into the Constitution.
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The Article reads: The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
It is notable that Article 40.3.3 is not phrased as a prohibition on abortion. Instead, it sets out a positive protection for the right to life of the unborn. 23 Despite this, the courts have been inclined to limit the influence of the article to the abortion context. In the case of Roche v. Roche, 24 the Supreme Court refused to accept that frozen embryos enjoyed a constitutionally protected right to life. This conclusion was partially based on the Court’s finding that the purpose of the eighth amendment had been solely to copper-fasten the existing statutory prohibition on abortion. 25
Under Irish law, abortion is only permissible in cases where there is a ‘real and substantial threat to the life of the mother’. This test was originally formulated in the case of Attorney General v. X
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and was eventually established in statute in the Protection of Life During Pregnancy Act 2013, after more than two decades of political wrangling. The Act requires that the ‘real and substantial risk’ to the woman’s life must be certified by two medical practitioners, one of whom is an obstetrician. In emergency situations, a termination may be carried out with the certification of only one doctor.
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Guidelines have been disseminated by the Department of Justice to assist medical professionals in administering this test.
28
Notably, the guidelines require doctors to consider the possibility of inducing labour or performing a caesarean section, instead of carrying out a termination, with a view to preserving the life of the foetus. They state: There is no time limit imposed by the Act in carrying out the medical procedure. However, the Act legally requires doctors to preserve unborn human life as far as practicable without compromising the woman’s right to life. Therefore, there is no specific stage of pregnancy below which the certifying doctor will not have to consider the possibility of preserving the life and the dignity of the unborn where practicable without compromising the life of the mother.
29
PP v. HSE
NP was a 26-year-old woman who was pregnant with her third child. In late November 2014, she was admitted to hospital complaining of persistent headaches and nausea. Unbeknown to her, she was suffering from a cyst in her brain. Whilst in hospital NP fell, apparently as a result of her brain condition, after which she lapsed into a coma. A number of days later, on 3 December, it was determined that NP had suffered brain stem death. 31 From this point, NP was considered to be clinically dead. Her pregnancy had reached approximately 15 weeks’ gestation. Usual practice in the event of brain stem death is to proceed to discontinue ventilation, subject to sensitivities such as allowing all family members an opportunity to say goodbye. Treating doctors stated that in this case the usual procedure was not followed because they were aware that the foetus still had a heartbeat, and they believed that they were required by law to maintain the life of the foetus. In the High Court, evidence was given that the doctors were concerned about doing anything that would ‘get them into trouble from a legal point of view’. 32
NP was placed in an intensive care unit, where she was supported by mechanical ventilation and fed using a nasogastric tube. As NP’s body was in fact dead, she was subject to a panoply of interventions aimed at preserving the life of the foetus, collectively referred to as ‘somatic support’. These interventions included heavy doses of medication for a number of conditions including pneumonia, fungal infections, high blood pressure, fluid build-up and fluctuations in the production of urine. The Plaintiff, like the rest of NP’s family and her partner, was fully opposed to this treatment. He argued that it was unreasonable and essentially experimental in nature, with no basis in science and no foundation in medical ethics.
On 23 December, when the matter came to trial, NP had been dead for nearly 3 weeks. The foetus had reached approximately 18 weeks gestation. By that stage NP’s condition had deteriorated significantly, as is apparent from the medical evidence, which the High Court rightly described as devastating. An operation had been carried out on NP’s head leaving an open wound and a large mass of dead tissue, which had become infected. Her appearance was puffy and swollen.
The three-judge High Court 33 was faced with an unenviable task. On the one hand was a family united in its view as to the best interests of NP and the foetus. On the other was the express wording of a constitutional provision that guaranteed the right to life of the foetus. Additional counsel were appointed by the Court to represent the interests of NP and the foetus.
The High Court handed down judgement just 2 days later, on 26 December, with Kearns P writing the sole opinion of the Court. The Court’s findings of the fact on the condition and prognosis of the foetus were fundamental to its ultimate conclusion. Over the course of the hearing, the Court heard extensive medical evidence as to the prospect of the foetus’s survival. Because cases of this kind are so rare, it was very difficult for witnesses to provide a definitive opinion on the foetus’ prospects of survival.
Ultimately, Kearns P found that the medical evidence in the case established that the prospects of successful delivery of a live baby were ‘virtually non-existent’. 34 He commented, ‘The Court finds as a fact that there is no realistic prospect of continuing somatic support leading to the delivery of a live baby’, 35 largely because maternal brain death had occurred so early in the pregnancy. The very limited expert medical evidence suggested that prospects of survival increased substantially later in pregnancy, especially after 24 weeks. The Court accepted evidence given by an expert in intensive care that the ongoing somatic support for NP was causing her body to break down and that overwhelming infection from various sources would as a matter of near certainty bring about the end of the foetus’ life long before it could be born alive.
The Court was careful to state that it was not in any way influenced by any suggestion that the foetus could be born alive but physically or mentally impaired. The only relevant question before the court was the question of whether the foetus could be born alive at all, not the condition or quality of that life.
Importantly, the Court also found as a fact that continuing somatic support would cause distress to the foetus ‘in circumstances where it has no genuine prospect of being born alive’. 36 This finding is important in relation to the Court’s findings on the question of best interests.
Turning to the application of the law, the Court began by considering the text of Article 40.3.3. Counsel for the Plaintiff had submitted that Article 40.3.3 was irrelevant to the facts at hand, as it related solely to the context of abortion. Counsel for the HSE and for the foetus submitted that Article 40.3.3 was engaged and that the Court had an obligation to defend and vindicate the right to life of the unborn. Counsel for NP argued that the courts should ‘infer what NP’s wishes were in relation to this pregnancy and strive to have the foetus delivered as a testament to her and as a sibling to her other children’. 37 In support of this argument, evidence was led to show that NP was very pleased to be pregnant and had posted a scan of the foetus on her Facebook page.
The Court concluded that whilst the prohibition on abortion provided the context for the enactment of Article 40.3.3, the provision did apply to the situation at hand: [T]he provision, in its plain and ordinary meaning may also be seen as acknowledging in simple terms the right to life of the unborn which the State, as far as practicable, shall by its laws defend and vindicate.
38
The Court accepted that the rights of the mother were important. It declared itself unimpressed with suggestions that concern for the dignity of the mother could be discounted. The Court was bound to consider the ‘mother’s right to retain in death her dignity with proper respect for her autonomy with due regard to the grief and sorrow of her loved ones and their wishes’.
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The Court seemed to hint, at first, that a balance had to be struck between the rights of NP and the rights of the foetus, but this was not ultimately the Court’s approach. It concluded that the interests of the foetus had to take precedence. It commented: When the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living.
41
Having formulated the legal test in this way, the Court’s assessment of the future viability of the foetus assumed paramount importance. If the foetus enjoyed no prospect of living, then the Court was not bound to prolong futile treatment. Kearns P had already concluded that the foetus enjoyed no realistic prospect of life. As such, the Court was entitled to treat the somatic support as potentially futile treatment that ought to be withdrawn. A clear body of Irish law exists on the issue of withdrawal of treatment. These precedents establish that neither the law nor the Constitution requires the preservation of life at all costs. 42 In the cases of Re A Ward of Court 43 and SR (A Ward of Court), 44 the Court concluded that the appropriate approach in deciding whether the withdrawal of treatment is appropriate is the application of a best interests test.
Applying that best interests test, Kearns P reiterated his finding that the foetus had no real prospect of being born alive. Due to the condition of NP it was facing a painful deterioration and had ‘nothing but distress and death in prospect’. 45 Furthermore, maintaining treatment would deprive NP of dignity in death and subject her family to unimaginable distress. The Court concluded that it would authorize the withdrawal of somatic support at the discretion of the medical team.
Key implications of the decision
Constitutional rights after death and the supremacy of foetal interests
This judgement will shape the way that maternal brain death is managed in Ireland. At the outset, the Court rejected the claim that the fact that NP was dead meant that her right to dignity was not engaged. Rather, the Court stated that it would take account of her ‘right to retain in death her dignity with proper respect for her autonomy’. 46 Formally then, the holding means that the dead retain some constitutional right to dignity and to autonomy. As a constitutional holding, this may have important implications in other contexts, such as defamation and privacy.
In reality, however, it is hard to identify any substance to this right in NP’s case. The Court held that the rights of the unborn child had to take precedence. It qualified this to some extent by noting that the unborn’s interests were ‘not necessarily inimical’ to the rights of NP. This begs the question of what the Court would have decided if the rights of the foetus were inimical to the privacy and dignity rights of NP. This is discussed further below in the context of advance directives.
It is important to note that the Court did not carry out a rights balancing exercise between NP and the foetus. It seems that because NP was dead, and because the rights of the foetus were not necessarily inimical to those of NP, no such balance was necessary. Accordingly, the Court’s decision as to whether to discontinue somatic support was solely focused on the foetus rather than on NP. Because of this approach, the Court’s finding that the foetus had no ‘realistic prospect’ of life outside the womb was absolutely crucial. This being the case, the Court took the view that the somatic support was futile and that it could thus be discontinued in accordance with the usual principles that pertain to futile medical treatment. If the Court had not made this finding on the matter of futility, its conclusion would have been entirely different. 47
The Court’s rationale very strongly suggests that had the medical evidence demonstrated that the foetus enjoyed some realistic prospect of being born alive, a constitutional imperative would have existed to maintain somatic support. Were some possibility of survival to exist, a Court would have to consider what percentage likelihood would amount to a realistic prospect. Given that no clear obligation exists to balance the rights of the foetus against the rights of the brain dead mother, even a small possibility of life existing outside the womb might justify the maintenance of somatic support.
It is also important to note that the Court expressly commented that it was concerned solely with whether the foetus would survive and not with whether the foetus would survive but with a significant disability. The likelihood of a disability is not a permissible consideration.
Some commentators have highlighted the Court’s assessment of the best interests of the foetus and suggested that this is a new application of Article 40.3.3. 48 De Londras argues that PP establishes that ‘foetal best interests’ and ‘foetal welfare’ can be used to justify dehumanizing and invasive treatment for the pregnant woman. This may overstate the likely impact of PP. The court certainly subordinated the interests of NP to those of the foetus, but one must acknowledge the context in which it did so. Because NP was deceased and the ‘treatment’ of the foetus was futile, the Court approached the decision as a withdrawal of treatment case. The test established in the withdrawal of treatment cases is based on best interests. 49 The decision does not involve a balancing of the rights of the woman and the rights of the foetus as would apply in the usual circumstances of pregnancy. Therefore, it does not establish any precedent for the consideration of foetal best interests outside of the highly unusual factual circumstances at play in PP.
Rights of the family and clinical best practice
Perhaps the most controversial aspect of this case was the fact that no member of NP’s family supported the continuation of somatic support. Somatic support was maintained against their wishes, at the behest of the state. In part, this situation arose because Irish law currently makes no provision for the inclusion of the views of family members in the decision-making process for an incompetent patient or the withdrawal of somatic support from a brain dead patient. All decisions for incompetent patients are made by members of the treating medical team, in accordance with their assessment of the patient’s best interests. 50 It is best practice to consult with the family and next of kin, but no obligation exists to seek their permission or consent. 51 As a result, the family in NP had no legal power to resist NP’s continued treatment and had no option but to resort to legal action to attempt to bring treatment to an end.
The medical consensus appears to be that continued somatic support of a brain dead pregnant women may be appropriate in certain limited circumstances. Leading commentators recommend that this only be done in cases where the family of the patient is fully in agreement, and many also recommend that it is only appropriate when the wishes of the patient are unknown or indicate an acceptance of continued somatic support. 52 The result of the decision in PP is that neither of these criteria may be considered. Nor is the doctor entitled to consider whether the foetus will survive, but survive with a serious disability. There may be some discretion to consider evidence that the maintenance of somatic support is inimical to the autonomy and dignity rights of the woman, but the overall approach focuses on the interests of the foetus with the residual rights of the mother framed as a mere background factor. Whilst the Court noted the distress of the family, this had no formal place in its analysis. The views of the dead woman’s next of kin have no legal weight. Accordingly, the approach in PP is at odds with clinical best practice. It ties the hands of doctors in this difficult situation by requiring them to focus on the viability of the foetus, to the exclusion of other ethical concerns, namely the views of the family and any known intentions of the deceased woman.
Advance healthcare directives
A significant question that arises from the Court’s analysis is whether its view would have been different if it was known that NP opposed the continuation of somatic support. This might have been contained in an advance directive. Advance directives are recognized by the guidelines of the Irish Medical Council as valid refusals of treatment, 53 and have recently been acknowledged by the High Court as legally binding. 54 The Irish legislature is currently in the process of drafting legislation on legal capacity, which is to include provision for advance directives. 55 The Draft General Scheme of Legislative Provisions to Provide for the Making of Advance Healthcare Directives deals specifically with refusals of treatment in the context of pregnancy. It provides that where a pregnant woman has an advance refusal of treatment in place which does not specifically state whether or not she intended it to apply if she was pregnant and that the refusal would have a deleterious effect on her pregnancy, a presumption will apply that treatment will be provided or continued. If, in the same circumstances, the refusal does deal specifically with pregnancy, then the General Scheme states that the matter must be referred to the High Court for a determination of the validity of the refusal of treatment.
These provisions are clearly intended to deal with the impact of Article 40.3.3, which imposes a strict equality between the right to life of the woman and the foetus. Where an advance directive will negatively affect the foetus, the High Court must balance those rights. 56 Importantly however, the General Scheme addresses a situation where the pregnant woman is alive. The decision in PP suggests that the analysis is quite different where she is deceased. Rather than apply a balancing test, the High Court would likely follow PP in subordinating the interests of the deceased woman to those of the foetus. That said, it should be noted that the Court in PP specifically found that it was possible to prefer the interests of the foetus where those interests where ‘not necessarily inimical’ to the interests of NP. This could be used to support the argument that where an advance directive refuses the maintenance of somatic support, the decision in PP is not binding.
Implications for Irish abortion law
Finally, PP may have some significance for Irish abortion jurisprudence. The Court accepted that the withdrawal of treatment is appropriate in cases where a foetus will not be born alive. Arguably, this could be interpreted to mean that the Constitution does not require the protection of the right to life of the unborn where that unborn cannot be born alive. 57 Following from the Court’s analysis, it may indeed be constitutionally permissible for the legislature to enact a law allowing for abortion in circumstances where the foetus will not be born alive. However, this is subject to certain caveats. First, if legislation were enacted on this basis, it would have to provide for an extremely narrowly drawn exception. Were the foetus likely to live for even a few seconds outside the womb then its right to life would be protected. Second, this argument depends on the equivalence of the withdrawal of treatment and the termination of pregnancy, which may not be accepted by an Irish Court. 58 In In re a Ward of Court (witholding medical treatment) (No. 2), the Supreme Court emphasized the distinction between the withdrawal of treatment, which it described as passive and the ending of life by euthanasia, which it characterized as active. The same distinction may be drawn by analogy between the withdrawal of treatment from a foetus and the termination of a pregnancy. 59
Another aspect of the decision is its potential implications for the interpretation of the Protection of Life in Pregnancy Act 2013. The Guidelines that accompany the Act state that there is no specific stage of pregnancy below which the doctor is not required to consider the possibility of preserving the life of the unborn. Enright has argued that the decision in PP may suggest that the duty to consider the possibility of protecting the life of the unborn could extend to a duty to prolong pregnancy until the foetus is viable. 60 This is possible, but again, it must be emphasized that the facts in PP v. HSE are highly unusual. The Court’s heavy emphasis on the rights of the foetus was premised on the fact that NP was deceased. Whilst the court seemed to contemplate the deliberate prolongation of pregnancy where the mother was dead, this does not necessarily provide any basis for the claim that this could be required by either the Constitution or the Protection of Life in Pregnancy Act if the pregnant woman was alive.
Conclusion
The tragic case of PP v. HSE demonstrates what appears to be an unintended consequence of the protection of the unborn under the Irish Constitution. International best clinical practice indicates that there may be limited circumstances in which preservation of somatic support in a brain dead pregnant woman is appropriate. PP establishes that in Irish clinical practice, the management of this kind of case is dominated by the requirements of Article 40.3.3. If there is a possibility that the foetus will survive, the maintenance of foetal life will trump other concerns. It seems that Irish doctors are not entitled to consider factors such as the views of the next of kin, the previously expressed views of the dead woman, or the likelihood of the foetus being born with a serious disability. As a result, they are deprived of the capacity to make this most difficult of decisions using their best clinical and ethical judgement.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.